1. Challenge to sanction and cognizance orders under the Unlawful Activities (Prevention) Act, 1967 — Allegations of non-compliance with statutory timelines and lack of independent review. (Para 2 )
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2024 Supreme(SC) 809
SUPREME COURT OF INDIA
C.T. RAVIKUMAR, SANJAY KAROL, JJ.
Fuleshwar Gope - Appellant
Versus
Union Of India & Ors. - Respondents
Criminal Appeal No. 3923 of 2024
Decided on : 23-09-2024
Important Points
IMPORTANT POINTS
Cognizance of offence – Validity of sanction should be challenged at the earliest instance available, before Trial Court.
Cognizance of offence – Validity of sanction should be challenged at the earliest instance available, before Trial Court.
Subject
Criminal Law - Unlawful Activities (Prevention) Act (UAPA)
Act Referred
Headnote
(A) Unlawful Activities (Prevention) Act, 1967 – Section 45 read with Rules 3 and 4 of Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 – Cognizance of offence – Sanction for prosecution – Validity of sanction should be challenged at the earliest instance available, before Trial Court – If such a challenge is raised at an appellate stage it would be for person raising challenge to justify reasons for bringing the same at a belated stage – Such reasons would have to be considered independently so as to ensure that there is no misuse of right of challenge with aim to stall or delay proceedings – UAPA being a penal legislation, strict construction must be accorded to it – Timelines imposed by way of statutory Rules are a way to keep a check on executive power which is a necessary position to protect rights of accused persons – Independent review by both authority recommending sanction and authority granting sanction, are necessary aspects of compliance with Section 45 of UAPA. (Paras 51.1 and 5.2 )
(B) Unlawful Activities (Prevention) Act, 1967 – Section 22A – Offences by companies – Whether or not exemption under Section 22A applies is a matter to be established by way of evidence – Person claiming such exemption has to demonstrate that either he was not in charge of affairs of company which has allegedly committed offence, or that he had made reasonable efforts to prevent commission of offence – This is a matter for Trial Court to consider and not for this Court to decide at this stage, keeping in view that trial is underway and proceeded substantially. (Paras 51.1 and 52.2
Facts of the case:
Questions arising for consideration are:-
(i) Whether validity of Sanction Order can be challenged at any stage?
(ii) Whether a violation of Section 45(2) of the UAPA r/w Rules 3 & 4, if any, vitiates the proceedings? Whether violation of - (a) statutory timelines and (b) requirement of independent review which includes application of mind, are necessary aspects of procedure without which, any transaction under UAPA shall be compromised to a point that its sanctity is rendered questionable?
(iii) Whether in present facts, argument of appellant that transactions in connection with which he has been brought to the book were actually independent of the ones in which Dinesh Gope (A-6) and other members were arrayed as accused, has any merit?
(iv) Whether, in facts, statutory exemption under Section 22 A of UAPA applies to appellant who claims to be unaware of the affairs of the company?
Findings of Court:
In opposing the stand that he is a director, appellant submits that he, in fact, is an uneducated person who is a Munshi and whose identity has been stolen by A-7 & A-14. That being the case, this Court cannot, at this stage, decide whether Section 22A applies to appellant or not. This is once again a matter for evidence.
Result : Appeal dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- administrative law
Advocates appeared:
For the Petitioner(s): Mr. Balaji Srinivasan, AOR Mr. Rohan Dewan, Adv. Ms. Aakriti Priya, Adv. Mrs. Lakshmi Rao, Adv. Ms. Harsha Tripathi, Adv. Mr. Vishwaditya Sharma, Adv. Mr. Aditya Nath, Adv. Mr. Shreyas Ranjan, Adv. Mr. Shiva Krishnamurti, Adv.
For the Respondent(s): Mr. Vikramjeet Banerjee, A.S.G. Ms. Swarupama Chaturvedi, Sr. Adv. Ms. Rukhmini Bobde, Adv. Mr. Raghav Sharma, Adv. Mr. Madhav Singhal, Adv. Ms. Zeenat Malick, Adv. Mr. Arvind Kumar Sharma, AOR
For the Petitioner(s): Mr. Balaji Srinivasan, AOR Mr. Rohan Dewan, Adv. Ms. Aakriti Priya, Adv. Mrs. Lakshmi Rao, Adv. Ms. Harsha Tripathi, Adv. Mr. Vishwaditya Sharma, Adv. Mr. Aditya Nath, Adv. Mr. Shreyas Ranjan, Adv. Mr. Shiva Krishnamurti, Adv.
For the Respondent(s): Mr. Vikramjeet Banerjee, A.S.G. Ms. Swarupama Chaturvedi, Sr. Adv. Ms. Rukhmini Bobde, Adv. Mr. Raghav Sharma, Adv. Mr. Madhav Singhal, Adv. Ms. Zeenat Malick, Adv. Mr. Arvind Kumar Sharma, AOR
Table of Contents
2. Timelines in the 2008 Rules are mandatory checks on executive power; challenges to sanction validity regarding application of mind are matters of evidence for trial. (Para 18 , 25 , 26 , 33 , 41 )
3. Statutory timelines for sanction under the 2008 Rules are mandatory; validity of sanction regarding independent review and application of mind must be determined through evidence at trial. (Para 33 , 41 )
4. Appeal dismissed. (Para 53 )
5. Are the timelines prescribed under Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 mandatory or directory?
They are mandatory. The use of the word shall and the nature of UAPA as a penal legislation require strict adherence to these timelines as a necessary check on executive power to protect the rights of accused persons. (Para 33 )
6. At what stage can the validity of a sanction order under the UAPA be challenged?
It should be challenged at the earliest possible opportunity before the Trial Court. While it can be raised at a later stage, belated challenges must be justified to ensure they are not used to stall proceedings. (Para 18 , 41 )
7. Does a short duration between the recommendation and the grant of sanction automatically vitiate the sanction for lack of independent review?
No. Short duration alone does not prove non-application of mind. Whether an independent review occurred is a question of fact to be determined by adducing evidence during the trial. (Para 41 )
8. How is the statutory exemption under Section 22A of the UAPA applied to directors of a company?
A person is exempt from punishment if they prove the offence was committed without their knowledge or that they exercised reasonable care to prevent its commission. This is a matter of evidence for the Trial Court. (Para 48 , 49 , 50 )
9. When is a joint trial for multiple accused persons permissible under the CrPC?
A joint trial is permissible if the offences are committed in the course of the same transaction, provided it does not prejudice the defence of the accused or cause undue judicial delay. (Para 44 , 45 )
JUDGMENT :
SANJAY KAROL, J.
Leave granted.
2. Impugned in this appeal by special leave is a judgment of the High Court of Jharkhand at Ranchi dated 21st March, 2023 in W.P.(Crl.) No.443 of 2022, whereby the learned Division Bench refused to quash –
(a) Suo motu letter No.F.No.11011/51/2017/IS-IV dated 16th January, 2018 in respect of the investigation of Bero P.S. Case No.67/2016 dated 10th November, 2016;
(b) Sanction letter No.11011/51/2017/NIA dated 22nd July, 2020 granting sanction qua prosecution of the present appellant as accused No.17 in R.C.-02/2018/NIA/DLI; and
(c) Cognizance order dated 25th July, 2020 u/s 120B of the Indian Penal Code r/w Section 17, 18, 21 & 22 of U.A. (P) Act, 1967, u/S 17(i) & (ii) of CLA Act, 1908 and charges framed on 16th March, 2021 pending trial before the Court of learned Special Judge, NIA, Ranchi;
It is to be noted that initially quashing was also sought in respect of sanction vide letter No.06/Avi-01/21/2017-2637 dated 12th May, 2017 granted by the Principal Secretary, Department of Home, Prisons & Disaster Management, Ranchi. However, paragraph 4 of the impugned judgment records that this specific prayer was not pressed before it.
BACKGROUND FACTS
3. The facts necessary for the disposal of the present appeal, shorn of unnecessary detail are :-
3.1 It is alleged that the appellant, Fuleshwar Gope1[Hereinafter referred to as A-17] is an associate of the People’s Liberation Front of India2[Abbreviated as ‘PLFI’] and is acquainted with the facts that Dinesh Gope @ Kuldeep Yadav @ Banku (A-6) is a terrorist and the chief of PLFI who collects money through extortion. He is further said to have criminally conspired and formed an unlawful association with members of PLFI, namely, Dinesh Gope, Sumant Kumar @ Pawan Kumar (A-7) and Hira Devi @ Anita Devi (A-14).
3.2 On the direction of A-6, it is alleged that the appellant formed a company M/s. Shiv Shakti Samridhi Infra Pvt. Ltd. (A-20) along with A-14 which was more in the nature of a partnership. This company’s bank account was used to directly/indirectly collect funds from legitimate or illegitimate sources for the use of activities of PLFI on the directions of A-6.
3.3 On 10th November, 2016, FIR No.67 of 2016 at Bero, Jharkhand was registered against six persons under Section 212, 213/34, 414 of the Indian Penal Code, 1860 and Sections 13, 17, 40 of the Unlawful Activities (Prevention) Act, 19673[Abbreviated as ‘UAPA’] and Section 17 of the Criminal Law Amendment Act, 1908 on the allegation that Rs.25.83 lakhs of demonetized currency was brought to the concerned branch of the State Bank of India by A-6.
3.4 On 9th January, 2017, chargesheet No.01/2017 was filed and the learned Judicial Magistrate 1st Class took cognizance thereof. On 18th March, 2017, Deputy Commissioner, Ranchi sought sanction to prosecute which was granted by the Principal Secretary, Department of Home, Prisons & Disaster Management. However, subsequently, the Ministry of Home Affairs4[Abbreviated as ‘MHA’], Government of India issued a transfer order in respect thereto on 16th January, 2018 and as such the FIR was re-registered as a case under the National Investigation Agency5[Abbreviated as “NIA”]. MHA further initiated suo-motu sanction on 16th October, 2019 against twelve accused persons, A-1 to A-12.
3.5 On 21st October, 2019, a supplementary chargesheet was filed by NIA wherein the Appellant was named as a witness for the Prosecution, as PW-65. On 5th November, 2019, Special Judge NIA took cognizance of the same.
3.6 The Appellant was subsequently arrested on 13th July, 2020. On 22nd July, 2020, suo-motu sanction was issued against an additional seven persons (A-13 to A-20), the Appellant is A-17. A second Supplementary Chargesheet was filed the next day i.e. 23rd July, 2020 under Sections 17, 18, 21, and 22C of the UAPA.
3.7 On 14th November, 2022, the Appellant filed a Writ Petition before the High Court seeking for quashing of the Sanction Order dated 22nd July, 2020, taking of
