Important Point
Cognizance by court for offences under Prevention of Terrorism Act in absence of prior sanction for prosecution by State would be a breach of mandatory provision of Section 50 of POTA and accused would be entitled to bail.

ORDER

D.G. Deshpande, J. — The appellant has applied for bail before the Special Court. His application was rejected by the Special Court Gadchiroli on 7.8.2003. Hence he has filed this appeal.

2. One of the contentions raised by the appellant before the Special Court was that as required by Section 50 of the Prevention of Terrorism Act, 2002, there was a bar in Court taking cognizance of offence without the previous sanction of the Central Government or as the case may be, the State Government. According to the appellant when he applied for bail and when the order of rejection of bail came to be passed, at that time there was no sanction as required by Section 50 and therefore he was entitled for bail.

3. The counsel for the appellant drew our attention to the Division Bench given in Criminal Appeal No. 3/2003 with criminal Appeal No. 679/2002

in Mohmmad Gausuddin s/o Wali Mohammad v. State of Maharashtra1, where a similar question arose that about the interpretation of Section 50 and the effect on not obtaining the sanction and the Division Bench ultimately held that in the circumstances of the case accused was entitled for bail, so the accused in that case was granted bail.

4. One more Criminal Appeal No. 535 of 2003 came before us and we passed a similar order granting bail in that appeal following the judgment of the Division Bench referred to above.

5. In the present appeal No. 561/03 Shri. Loney A.P.P. conceded that till today there is no sanction as required under Section 50 of Prevention of Terrorism Act. He however tried to distinguish the Division Bench Judgment of this Court referred to above and relied by us, on the basis of the judgment Union of India v. Prakash P. Hinduja and Another2. However, attention in that regard was drawn to paragraphs 20 and 21. We reproduce the said paras as under :

“20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173 (2) Cr. P.C. this field being exclusively reserved for the investigating agency.

21. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused. Section 5-A of the Prevention of Corruption Act. 1947 provided that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165 and Section 165-A IPC or under Section 5 of the said Act without the order of a Magistrate of the First Class. In H.N. Rishbud the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court.

The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down: (AIR pp. 200304, para 9)

“9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the questi