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.

ORDER :

K.Vinod Chandran, J.

Amidst the raging controversy as to the retention of offence of sedition in the IPC; which the naysayers categorise as a relic of the colonial past; a symbol of British hegemony and the votaries support in the wake of rising anti-national feelings under the cloak of liberal thought, the Government sat over a sanction for six months, violating the time frame prescribed in the rules.

2. Shorn of the myriad facts regarding the ingredients of the offences alleged, the revision petitioner was charged under Ss. 143, 147, 148, 124A read with 149 IPC and Ss. 20 & 38 of the Unlawful Activities (Prevention) Act, 1967 [for short 'UA(P)A']. The revision petitioner is alleged to be a member of the Communist Party of India [Maoist] a proscribed organisation under the UA(P)A. The three crimes registered are Crime No.861 of 2013 of the Kuttiadi Police Station and Crime Nos.11 & 15 of 2014 of the Valayam Police Station. The State Police Chief wrote to the State Home Department, who took it up with the Authority constituted under S.45 of the UA(P)A. The statement dated 19.07.2018 filed by the 3rd respondent, Addl. Chief Secretary, Home & Vigilance, indicates the same having been taken up with the Law Secretary, who was the Chairperson of the Authority and the latter having agreed to convene a meeting of the Authority on 11.01.2018. This establishes the evidence gathered in the investigation having been placed before the Authority before 11.01.2018. Then it is stated that there was a change in the constitution of the Authority and a retired High Court Judge was appointed. The Chairman newly appointed was engaged with the Puttingal Enquiry Commission and related cases and hence could not consider the proposal immediately. Eventually the Authority took up the matter on 07.02.2018 and recommended it on the same day. The sanction of the State Government in the first two crimes were on 11.06.2018 and in the other crime on 07.04.2018; both delayed.

3. The allegation now raised is of delay in recommendation and sanction, thus violating the time stipulated under the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 (Rules of 2008); prescribed as empowered under the UA(P)A. The sanctions, not being within time, are not valid and vitiates the cognizance taken by the Special Court. The Special Court, before which an application was moved under S.227 of the Criminal Procedure Code, for discharge, rejected the applications, wrongly assuming that the time stipulated under the Rules commence from the letter of the Director General of Police dated 03.06.2018. The Government does not press that contention before us.

4. Sri.K.S.Madhusoodanan, appeared for the revision petitioner, who is in judicial custody in another case. Sri.K.A.Anas, learned Government Pleader appeared for the State.

5. Sri.K.S.Madhusoodanan read the provisions under the UA(P)A in juxtaposition with the provisions under the Terrorist and Disruptive Activities [Prevention] Act, 1987 [for brevity, 'TADA'] and the Prevention of Terrorism Act, 2002 [for brevity, 'POTA']. It was pointed out that the provision for sanction, as a condition for taking cognizance, in all these enactments were an important safeguard to the fundamental rights of the citizen guaranteed under the Constitution; which otherwise would be used to stifle every voice of dissent. While the TADA & POTA, did not stipulate the specific time within which the sanction has to be granted; in the UA(P)A, in the Rules framed thereunder, a specific time of seven days is provided, within which the Authority constituted under S.45(2) has to make a recommendation, after which the appropriate Government also has to issue a sanction within another seven days from the receipt of the recommendation. When the said stipulation is not followed to the letter, it goes against the spirit of the safeguard provided and the cognizance taken by the Special Court is vitiated.

6. As far as the off