Madras High Court
Shyna @ Shyni @ Shoba @ Raji vs The Assistant Commissioner Of ... on 31 March, 2022
Crl.O.P.(MD)No.9125 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31/03/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.9125 of 2019
and
Crl.MP(MD)No.5800 of 2019
Shyna @ Shyni @ Shoba @ Raji : Petitioner/Sole Accused
Vs.
1.The Assistant Commissioner of Police,
Avaniyapuram Police Station,
Madurai.
(Crime No.1516 of 2015) : R1/Complainant
2.Muthukrishnan : R2/De-faco complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in SC No.276
of 2017 on the file of the Additional District and Sessions
Judge No.IV, Madurai and quash the same.
For Petitioner : Mr.A.Jayaramachandran
For 1st Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
For 2nd Respondent : No appearance
1/11
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Crl.O.P.(MD)No.9125 of 2019
O R D E R
This criminal original petition is filed seeking
quashment of the case in SC No.276 of 2017 on the file of
the Additional District and Sessions Judge No.IV, Madurai.
2.The case of the prosecution in brief:-
The accused belongs to Valappad Village, Thrissur
District, Kerala State. He is involved in the offence of
Unlawful Activities (Prevention) Act, 1967 in Coimbatore
and Tiruppur area. He was working as office-bearer of CPI
(Maoist), which is a banned Organisation. By joining in the
above said outfit, he is involved in unlawful activities,
which are prejudiced to the law and order and also
instigated the public.
3.The de-facto complainant was approached by the
accused persons and advised him to join in the above said
banned organisation. He also promised to secure a job in
other State. Believing the words of the accused, the de-
facto complainant handed over the old ration card and
utilising the same, he purchased SIM Card bearing No.
8122082687 and he also made propaganda and tried to admit
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Crl.O.P.(MD)No.9125 of 2019
the public in the organisation for the purpose of making
unlawful activities and protest against the lawful
Government. So on the basis of the above allegations, the
case was registered in Crime No.1516 of 2015 on the basis
of the complaint given by the de-facto complainant for the
offences under sections 419, 420, 468, 471 IPC r/w sections
13, 18(b), 20 of Unlawful Activities (Prevention) Act,
1967. After completing the formalities of investigation,
final report was filed before the Principal District Judge,
Madurai, which was taken cognizance in SC No.276 of 2017.
4.Seeking quashment of the same, this petition is
filed.
5.Heard both sides.
6.The learned counsel appearing for the petitioner
would straightway rely upon the judgment of this court in
the case of Vaiko Vs. The State of Tamil Nadu represented
by Inspector of Police, D1, Triplicane Police Station,
Chennai [2018-2-L.W (Crl.) 846) for the purpose of argument
that the delay on the part of the authorities in giving
sanction is illegal and that cannot be condoned, in view of
the above said proposition of law that was laid down by
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Crl.O.P.(MD)No.9125 of 2019
this court by following the judgment of Gujarat High Court
in the case of Rambhai NathabhaiGadhvi Vs. State of Gujaraj
(AIR 1997 Supreme Court 3475) contended that the delay of
one day in giving sanction order, after scrutiny is not
legal and in respect of the fact that prejudice has been
caused to the petitioner and that illegality cannot be
cured. Regarding the factual issue, an argument was
advanced by the learned counsel appearing for the
petitioner, this court did not permit the petitioner to
argue the matter on merits, on factual issues.
7.Per contra, the learned Additional Public Prosecutor
would rely upon the judgment of this court in the case of
Veeramani @ Eswar @ Sara @ Sunilkumar Vs. State represented
by the Deputy Superintendent of Police, Gobichettipalayam
Rural Sub-Division, Gobichettipalayam Police Station,
(Crl.RC No.1163 of 2020, dated 27/01/2021) and the judgment
of the Punjab and Haryana High court in the case of
Harpreet Singh @ Happy @ Heera Vs. State of Punjab
(CRA.S-4214-SB of 2013 (O & M), dated 12/05/2016. The
Additional Public Prosecutor would submit that these two
judgments are on the direct point. So according to the
learned Additional Public Prosecutor, unless prejudice has
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Crl.O.P.(MD)No.9125 of 2019
been projected or caused, because of the one day delay and
view of the judgment of this court in the above said case
Crl.RC No.1163 of 2020, dated 27/01/2021, it is only a
directory and not mandatory.
8.Per contra, the learned counsel appearing for the
would rely upon the judgment of the Kerala High Court in
the case of Roopesh Vs. State of Kerala and others
(Crl.Rev. Pet. No.732 of 2019, dated 17th March 2022 for the
purpose of argument that even if there is no prejudice, the
law must be interpreted strictly and no concession can be
given.
9.In the light of the above said rival submission, let
us go to the Rules, that has been canvassed in this
petition.
10.Section 45(2) of the Unlawful Activities
(Prevention) Act, 1967 reads as follows:-
“(2)Sanction for prosecution under sub-
section (1) shall be given within such time
as may be prescribed only after considering
the report of such authority appointed by
the Central Government or, as the case may
be, the State Government which shall make an
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Crl.O.P.(MD)No.9125 of 2019
independent review of the evidence gathered
in the course of investigation and make a
recommendation within such time as may be
prescribed to the Central Government or, as
the case may be, the State Government.”
11.Rules 3 and 4 of the Unlawful Activities
(Prevention)(Recommendation and Sanction of
Prosecution)Rules 2008 reads as follows:-
“3.Time limit for making a
recommendation by the Authority. ?The
Authority shall, under sub-section (2) of
section 45 of the Act, make its report
containing the recommendations to the
Central Government [or, as the case may be,
the State Government] within seven working
days of the receipt of the evidence
gathered by the investigating officer under
the Code.
4.Time limit for sanction of
prosecution. ?The Central Government or, as
the case may be, the State Government]
shall, under sub-section (2) of section 45
of the Act, take a decision regarding
sanction for prosecution within seven
working days after receipt of the
recommendations of the Authority.”
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Crl.O.P.(MD)No.9125 of 2019
12.As per the above said Section and Rules, within
seven days, the sanction might have been obtained by the
prosecuting agency from the competent authority.
13.The learned counsel appearing for the petitioner
would submit that the Committee, which was constituted
under the provisions of the Act is not legal, which was
also pointed out by this court in the judgment cited above.
14.But the learned Additional Public Prosecutor would
submit that the Committee was constituted under sub-section
(2) of section 45 of the Act, 1967 by G.O.(Ms).No.208,
dated 25/03/2011, whereby the Secretary to Government (Law
Department), the Secretary to Government (Public
Department), Additional Director General of Police, (Law
and Order), and the Inspector of Police, Intelligence,
(Internal Security), Chennai, were constituted to form the
competent authority. According to the learned Additional
Public Prosecutor, the matter has been placed before the
Committee and after going through the records only the
Committee made a recommendation, on 06/04/2017. But
however, sanction was accorded only on 19/04/2017. So
according to him, within seven working days, sanction was
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Crl.O.P.(MD)No.9125 of 2019
accorded. But the date of recommendation has not been
properly mentioned by the authority.
15.But on perusal of the recommendation, it is seen
that it was signed on 06/04/2017. So we can take this as
the correct date of recommendation. The Government Order
has been passed in granting sanction for prosecuting the
petitioner on 19/04/2017 in G.O.(4D)No.49. So if we
calculate seven working days, it is seen that with a short
of one day, which means there is one day delay in passing
the sanction order. The question which arises for
consideration is whether this one day delay has caused any
prejudice to the petitioner.
16.As mentioned above, it is contended on the part of
the petitioner that it is totally illegal, which cannot be
cured. According to him, it may go to the root of the
prosecution. So, it is liable to be quashed.
17.The contention on the part of the petitioner is
that no proper materials have been placed before the
competent authority and subjective satisfaction was not
arrived at. But the sanction order clearly deals about the
facts and circumstances and necessitate for initiating
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Crl.O.P.(MD)No.9125 of 2019
proceedings against the petitioner. Even though, contrary
view has been expressed by other courts with regard to the
non-compliance of section 45(2) of the Act, in the facts
and circumstances of the case, the judgment of Kerala High
Court in the case of Roopesh vs. State of Kerala, rep. By
Public Prosecutor, High Court of Kerala, Ernakulam and
others) was also considered by this court in the case of
Veeramani @ Eswar @ Sara @ Sunilkumar Vs. State rep. By
Deputy Superintendent of Police, Gobichettipalayam Police
Station (Crl.RC No.1163 of 2020 dated 27/01/2021), the
subsequent development has also taken care and noted in the
above said order. In that case also, a discharge
application was filed on the ground that it was dismissed
by the trial court, upon which the above said revision was
preferred.
18.Here also, we find that similar discharge
application was filed, which came to be dismissed by the
trial court, wherein also the very same plea has been
raised. I find no ground to differ from the view that has
been expressed by the Coordinate Bench of this court.
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Crl.O.P.(MD)No.9125 of 2019
19.In view of the above facts, this criminal original
petition is dismissed. Consequently, connected
Miscellaneous Petition is closed.
31/03/2021
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Crl.O.P.(MD)No.9125 of 2019
G.ILANGOVAN,J.,
er
To,
1.The Additional District & Sessions
Court No.IV, Madurai.
2.The Assistant Commissioner of Police,
Avaniyapuram Police Station,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Maduurai.
Crl.O.P.(MD)No.9125 of 2019
31/03/2022
https://www.mhc.tn.gov.in/judis
