The timing for raising issues regarding absence or vitiation of sanction is crucial, and a mere error, omission, or irregularity in sanction is not fatal unless it results in the failure of justice or is occasioned thereby.

JUDGMENT :

1. Heard Mr. Shiv Prasad Singh, learned counsel for the petitioner and Mr. Manoj Kumar, learned counsel for the State.

2. The present petition has been filed for quashing of order dated 13.05.2016 (Annexure-3) passed in S.T. Case No. 123 of 2016, G.R. Case No. 677 of 2015 (Gua Barajamda) P.S. Case No. 42 of 2015) whereby cognizance for the offence under sections 10, 13, 39 of Unlawful Activities (Prevention) Act and section 17 of Criminal Law (Amendment) Act has been taken against the petitioner. Further prayer has been made for quashing of order dated 04.04.2018 (Annexure-6) passed in S.T. Case No. 123 of 2016 whereby petition dated 01.02.2018 filed by the prosecution under section 137 of Evidence Act for re-examination of P.W.9, has been allowed, pending in the Court of learned Additional Sessions Judge-III, Chaibasa.

3. F.I.R. has been lodged alleging therein that on the basis of secret information the petitioner was apprehended by the police near Barajamda Railway Station and from his possession several incriminating articles and naxal literatures were recovered which were seized in presence of witnesses. On interrogation the petitioner disclosed that the said articles were to be supplied to the members of extremist organization. On the basis of these allegations Gua(Barajamda) P.S. Case No. 42 of 2015, dated 15.12.2015 under sections 10, 13, 39 of Unlawful Activities (Prevention) Act and under section 17 of the Criminal Law (Amendment) Act has been registered.

4. Mr. Shiv Prasad Singh, learned counsel for the petitioner submitted that learned Sessions Judge vide order dated 04.04.2018 has allowed the petition dated 01.02.2018 for re-examination of P.W.9 namely, Md. Tauquir Alam, Dy. S.P. (I.O.) in which rejoinder was filed by the defence. He further submitted that impugned orders dated 13.05.2016 and 04.04.2019 are bad in law. According to him the learned court below by order dated 13.05.2016 has taken cognizance against the petitioner for the offence under sections 10, 13, 39 of Unlawful Activities (Prevention) Act and section 17 of Criminal Law (Amendment) which is violation of Section 45 of the Unlawful Activities (Prevention) Act which clearly stipulates that no court shall take cognizance of any offence without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf. He further submitted that in view of this provision the order taking cognizance is itself bad in law. To buttress his argument, learned counsel for the petitioner relied on judgment in the case of “Roopesh Vs. State of Kerala and Others” [2022 Live Law (Ker) 130] wherein para 28 it has been held as under:-

“28. The sanction accorded to prosecute the petitioner for reason of the same having not been issued within the time stipulated in the UA(P)A and the Rules of 2008 is vitiated. The statutory mandate of time having not been complied with, the Special Court cannot take cognizance of the offences under Ss.20 and 38 of the UA(P)A Act. There is also a complete absence of application of mind. Under S.196(1) of the Cr.P.C, again there is no application of mind in the sanction as evidenced from the orders impugned and hence the cognizance taken of the offence under S.124-A of the IPC also has to fail. The cognizance taken by the Sessions Court under the IPC and UA(P)A are set aside and the orders passed, impugned in the Criminal Revision Petitions are set aside.

The Criminal Revision Petitions stand allowed.”

5. On the point of sanction, learned counsel for the petitioner further relied on judgment in the case of “ Ashrafkhan @ Babu Munnekhan Pathan & Others Vs. State of Gujrat & Others” reported in (2012) 11 SCC 606 wherein para 37 the Hon’ble Supreme Court has held as under:-

“37. The plea of the State is that the Commissioner of Police having granted the sanction under Section 20-A(2) of TADA, the conviction of the accused cannot be held to be bad only on the ground of absence of approval un