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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Rohit B. Deo, Anil L. Pansare, JJ.
Mahesh Kariman Tirki – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 136 of 2017 with Criminal Appeal No. 137 of 2017
Decided On : 14-10-2022
Key Points: - The sanction under Section 45(2) must be given after considering the independent review report; a laconic or non-reasoned report renders sanction invalid. (!) (!) (!) (!) (!) - Absence or egregious defects in sanction strike at the root of the trial’s jurisdiction; cognizance without valid sanction renders proceedings void. (!) (!) (!) (!) - Time limits for making recommendations and granting sanction (2008 Rules 3-4) are mandatory in wording but may be interpreted as directory in application; substantial compliance and demonstration of failure of justice are considered. (!) (!) (!) (!)
| Table of Content |
|---|
| 1. court's reasoning and legal findings. (Para 1 , 2 , 3 , 4) |
| 2. arguments raised regarding the validity of the prosecution. (Para 5 , 6 , 7) |
| 3. conclusion and orders regarding the case. (Para 8 , 9) |
| 4. description of events leading to prosecution. (Para 10 , 11 , 12) |
JUDGMENT
Rohit. B. Deo, J. - Criminal Appeal 136/2017 and Criminal Appeal 137/2017 emanate from the common judgment dated 07-3-2017 rendered by the learned Sessions Judge, Gadchiroli, whereby the appellants are convicted for offences punishable under Sections 13 , 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 ( UAPA ) read with Section 120-B of the INDIAN PENAL CODE (IPC) as set out infra.
Table
2. CASE OF THE PROSECUTION :
(i) Assistant Police Inspector (API)-Atul Shantaram Awhad (PW 6), who was then attached to the Special Branch, Gadchiroli, received secret information that accused 1-Mahesh Tirki and accused 2- Pandu Narote were active members of the banned terrorist organisation CPI (Maoist) and its frontal organisation Revolutionary Democratic Front (RDF), and were abetting and assisting the hardcore underground cadre of the CPI (Maoist) by providing information and material and facilitating the travel and relocation of the members from one location to the other. API-Atul Awhad and his squad were keeping accused 1- Mahesh Tirki and accused 2-Pandu Narote under surveillance, in the naxal affected areas of Etapalli, Aheri and Murewada.
(ii) API-Atul Awhad and his squad were at the Aheri Bus Station at 6-00 p.m. on 22-8-2013. Accused 1-Mahesh Tirki and accused 2-Pandu Narote were found standing at a secluded place near the Bus Stand. At 6.15 p.m. one person wearing white cap approached accused 1-Mahesh Tirki and accused 2-Pandu Narote and the trio started conversing and interacting with each other in a manner which API-Atul Awhad and his squad found suspicious. API-Atul Awhad, therefore, approached the trio and questioned accused 1, accused 2 and accused 3 only to receive evasive answers. API-Atul Awhad summoned two panchas and asked the names of the three persons who disclosed their names as Mahesh Kariman Tirki (accused 1), Pandu Pora Narote (accused 2) and Hem Keshavdatta Mishra (accused 3).
(iii) Accused 1-Mahesh Tirki, accused 2-Pandu Narote and accused 3-Hem Mishra were brought to the Aheri Police Station and their personal search was taken in presence of panch witnesses. Three pamphlets of the banned terrorist organisation CPI (Maoist) and its frontal organisation RDF, one purse containing Rs.60/-, platform ticket of Ballarshah Railway Station dated 28-5-2013, Identity Card and one Cell Phone of Micromax Company, was the material seized from accused 1-Mahesh Tirki. Pursuant to personal search of accused 2- Pandu Narote, one Cell Phone of Samsung Company, one purse containing Rs.1480/-, platform ticket of Delhi Railway Station dated 28-5-2013, Pan Card, Identity Card, was the material seized. The personal search of accused 3-Hem Mishra led to the seizure of one Memory Card of 16 GB of Sandisk Company wrapped in a paper, one purse containing cash of Rs.7,700/-, railway ticket of Delhi to Ballarshah dated 19-8-2013, Camera along with Charger, Pan Card, Identity Card and Cloth Bag.
(iv) API-Atul Awhad lodged report against accused 1-Mahesh Tirki, accused 2-Pandu Narote and accused 3-Hem Mishra (Exhibit 219), on the basis of which Crime 3017/2013 was registered for offences punishable under Sections 13 , 18, 20, 38 and 39 of the UAPA read with Section 120-B of the IPC. In view of the provisions of the UAPA , further investigation was assigned to Sub-Divisional Police Officer-Suhas Bawche (PW 11).
(v) The interrogation of accused 1-Mahesh Tirki and accused 2-Pandu Narote revealed that naxalite Narmadakka of CPI (Maoist) had assigned accused 1-Mahesh Tirki and accused 2-Pandu Narote the task of escorting accused 3-Hem Mishra, who was arriving from Delhi with important informative material, to the Murewada forest, safely. The meeting
Point of law : sanction under the UA(P)A granted after six months from the date of receipt of recommendation of the authority is not a valid sanction.
Absence of sanction can be raised and agitated at very inception but invalidity or illegality of sanction is to be raised during trial.
Point of law : Section 19(3) of the PC Act indicates that it deals with three situations: (i) Sub-Clause (a) deals a situation where a final judgment and sentence has been delivered by the Special Ju....
A valid sanction under Section 45(1) of the UA(P) Act, 1967, is essential for a court to take cognizance of offenses under Part-III, and failure to obtain such sanction renders the proceedings invali....
The absence of sanction under Section 196 I.P.C. rendered the trial void ab initio, allowing for retrial after obtaining the required sanction.
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