IMPORTANT POINT
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 invalid.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S. Borthakur, learned counsel for the petitioners. Also heard Mr. D. Nath, learned Senior Government Advocate appearing for the State respondent and Mr. R.K.D. Choudhury, learned Dy.SGI, appearing on behalf of the Union of India.

2. These two criminal petitions are taken up together for final hearing as the learned counsels for the parties urged that the cause of action and the challenge made in these two petitions arise out of same cause of action i.e. challenge to the proceedings under Unlawful Activities (Prevention) Act, 1967 (for short UA(P)Act, 1967) for want of sanction under Section 45 of the UA(P)Act. 1967 registered as Sessions Case No. 125/2023 arising out of Barpeta P.S. Case No. 175/2023 under Sections 120(B)/121/121-A of the IPC read with Section 10/13/18 of UA(P) Act,1967 pending in the Court of learned Sessions Judge, Barpeta. The further challenge is order dated 13.09.2023 passed by learned Sessions Judge Barpeta, whereby Charges under section 10/13/18 of UA(P) Act, 1967, were framed against the petitioners.

3. Contentions of the petitioners:

Mr. Borthakur, learned counsel for the petitioners assailing the aforesaid order and the entire proceedings, argues the following:

I. Sanction under Section 45 (1) of the UA(P) Act,1967 is a sine qua non for prosecution. In absence of a valid sanction, the entire proceeding shall be vitiated and in the case in hand, admittedly, there is no sanction as mandated under Section 45(1) of the UA(P) Act, 1967 prior to the order of cognizance.

II. By referring to the charge sheet, Mr. Borthakur, learned counsel argues that the investigating authority admittedly recorded in its charge sheet that on the date of filing of the charge sheet, there was no sanction under Section 45(2) of the UA(P), Act, 1967.

III. Even on the date of cognizance, no such sanction was made available. That being the position, Mr. Borthakur, learned counsel for the petitioners submits that the entire proceeding is liable to be struck down.

IV. Mr. Borthakur, learned counsel further contends that not only a sanction is necessary but such sanction must also be a valid sanction and such sanction should be granted as per procedure laid down under Rule 3 and 4 of the UA(P) (Recommendation and Sanction of Prosecution) Rules, 2008 (hereinafter referred to as Rules, 2008).

V. According to Mr. Borthakur, learned counsel, there was no sanction for the period from the month of June, 2023 till the month of October 2023. Sanction was granted post cognizance and post framing of charge and therefore, the mandatory provision of Rule 3 and 4 of the Rules, 2008 has been infringed and accordingly, the entire proceeding is vitiated. In support of this contention, Mr. Borthakur, learned counsel submits that the Hon’ble Apex Court dealing with a pari materia provision under TADA Act, in the case of Rambhai Nathabhai Gadhvi and Others Vs. State of Gujarat, (1997) 7 SCC 744, held that valid prosecution sanction as per the Act is a sine qua non and in absence of it, the entire proceeding shall be vitiated. According to Mr. Borthakur, learned counsel, sanction beyond the mandatory period prescribed under Rule 3 and 4 of the Rules, 2008 vitiated the sanction itself.

VI. Mr. Borthakur, learned counsel further contends that the mandate of Section 465(2) of the Cr.P.C. cannot be made applicable in the case of a special Act, like the present one, when a specific provision for sanction pre cognizance has been mandated and therefore, such provision cannot cure the defect made by the authorities in not granting the prosecution sanction.

VII. Learned counsel further contends that in absence of such sanction, the cognizance taken by the learned Magistrate is no cognizance in the eye of law and therefore, all other subsequent proceedings, including the order of framing charge, are inconsequential. In support of his contention, Mr. Borthakur, learned counsel relies on the judgment of the Hon’ble Apex Court in