Kerala High Court quashes Sedition, UAPA charges against alleged Maoist Party member due to delay in sanction by State govt

The Kerala High Court on Thursday quashed charges under the Unlawful Activities Prevention Act (UAPA) and sedition (Section 124A of Indian Penal Code) against an alleged member of the Communist Party of India (Maoist) on the ground that there was delay by the State government in issuing sanction under Section 45 of the UAPA [Roopesh v. State of Kerala]. .Section 45 mandates previous sanction by the appropriate government for the Court to take cognisance of offence under UAPA. The Division Bench of Justices K Vinod Chandran and C Jayachandran noted that the mandatory deadline for such sanction was not complied with by the State government, who sat on the same for six months. "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," the Court observed. The Court took a firm stand on the mandatory nature of the time limit prescribed in the Rules of 2008 under UAPA, for both the Authority and the appropriate Government, respectively to make the recommendation and issue the sanction as provided under Section 45."When sanction is statutorily mandated for taking cognizance and if cognizance is taken without a sanction or on the strength of an invalid one, it cannot be said to be an erroneous proceeding taken in good faith and the act of taking cognizance itself would stand vitiated," the Court held..Regarding the offence of Sedition under Section 124A IPC that the accused was charged with, the Court held that when the cognisance taken by the special court is found to be invalid, no trial can be held by the same court for an IPC offence either."When the cognizance taken, of the offences under the UA(P)A, is held to be without jurisdiction, for want of valid sanction, then there is no question of a valid trial being held by the Special Court into any offence under the IPC", the judgement stated..The Court's judgement came on a revision petition moved by one Roopesh, who was charged under Sections 143, 147, 148, 124A read with 149 of the IPC and Sections 20 & 38 of the UAPA.The revision petitioner was alleged to be a member of the Communist Party of India (Maoist), a proscribed organisation under the UAPA.The petitioner first approached the special court seeking discharge owing to the 6 months it took for the sanction order to be issued but the Special Court rejected the application prompting the revision petition before the High Court.While the petitioner contended that the time for sanctioning stipulated under UAPA is mandatory, the State government contended that only sanctioning is mandated and a delay in the same does not vitiate the case against him. Moreover, the government argued that even if UAPA charges are removed, the offence under 124A IPC would stand..Section 45(1)(ii) of the UAPA prohibits, unequivocally, any Court from taking cognizance of offences under Chapters IV & VI without previous sanction of the appropriate Government. The Rules of 2008 prescribe seven working days as the time within which the recommendation is to be made and the sanction has to be issued; commencing respectively from the receipt of evidence gathered by the investigating officer and the receipt of recommendation of the Authority.From a reading of these provisions and relevant precedents on the point, the Court stated that the word 'shall' in the context of the UAPA and the Rules of 2008, cannot be said to be merely directory. In fact, it is mandatory and sacrosanct, the Court opined. .The Court also went through the history of UAPA and its predecessors, Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention of Terrorism Act (POTA)."It is very clear that the legislators learned from the experience and worked on the information, about the actual working of the enactments, which brought drastic consequences to those accused of the offence of a terrorist or disruptive act. The sanction required by the TADA from the higher echelons of Police was found to be insufficient to curb the evil of misuse and hence, by POTA the requirement was upgraded to one from the Government itself. After repeal of the POTA, the UAPA, strengthened with the amendments in 2004, continued with Section 45, which prohibited cognizance by any Court; of offences under Chapter III, without a sanction from the Central Government or the authorised officer and under Chapters IV & VI without the sanction of either the State Government or the Central Government, as appropriately required," the Court noted. .Further, it opined that the parliament's insertion in 2008 of the provision regarding time limits, takes on even more significance in light of the fact that the provisions under the UAPA have an added rigour especially with regard to the wider time frame for investigation and restrictions in granting bail. .In the instant revision petitions, the Court noted that the sanction order after recording satisfaction of the accused having committed offences under the UAPA reads: 'besides offences punishable under relevant sections of the IPC for which they should be prosecuted' (sic). "The procedure for a recommendation from an Authority constituted and a further sanction from the appropriate Government ensures and warrants an objective consideration of the requirement to prosecute. The various offences vary in content and essence and without even a mention of the act complained of, the offence alleged or even the precise provision, the Government has made a cryptic statement which falls short of a satisfaction entered, with due application of mind," the Court said.Therefore, on account of the delay in sanctioning and the non-application of mind in the sanction orders under both UAPA and IPC, the Court found the orders to be invalid, not enabling the Special Court to take cognizance..Therefore, it set aside the cognisance taken by the Special Court as well as the orders passed by it..[Read Judgment]