Which is the appropriate government to give prior sanction for UAPA cases? Kerala High Court answers

The Kerala High Court dismissed appeals moved by 19 men accused of conspiring to murder RSS worker Elamthottathil Manoj, allegedly motivated by political enmity stemming from a murder attempt on a CPI (M) leader.
Which is the appropriate government to give prior sanction for UAPA cases? Kerala High Court answers
Chief Justice S. Manikumar and Justice Shaji P. Chaly

The Kerala High Court recently ruled that the appropriate authority to give prior sanction so that a court may take cognizance of a case under the Unlawful Activities (Prevention) Act, 1967 (UAPA) will depend on the investigating agency and not the place of the alleged offence.

In this regard, a Bench of Chief Justice S Manikumar and Justice Shaji P Chaly examined Section 45 of the UAPA to conclude that the Central government was the appropriate authority to grant sanction in a case probed by the Central Bureau of Investigation (CBI), even if the investigation took place within the State of Kerala.

More particularly, Section 45(1)(ii) of the UAPA provides:

  • no court shall take cognizance of any offence under Chapters IV and VI of the Act (to do with terrorism-related offences), without the previous sanction of the Central government; or, as the case may be,

  • no court shall take cognizance of any such offence without the previous sanction of the State government,

  • if such offence is committed against the government of a foreign country, no court shall take cognizance of the offence without the previous sanction of the Central Government.

The provisions of Section 45 make it clear that it is not the place of occurrence that matters, but the investigating agency is what matters, the Court opined. It is only if an investigation was conducted by a State agency, then the State government would have the power to grant sanction.

However, the State would not be competent to grant sanction for a UAPA investigation handled by a Central agency, merely because the probe is taking place within the State. As noted in the order,

"... merely because the central agency conducts an investigation into any offence within the State, it is never under the control of the state government especially due to the fact there is no enabling provision under any one the acts discussed above to do so. Which thus means the central agency conducting the investigation is always under the control of the Central Government and that power under any circumstances is not conferred on the State Government even while conducting an investigation within a state."

The High Court made these observations while dismissing appeals moved by a number of men accused of conspiring to murder RSS worker Elamthottathil Manoj. The murder was allegedly motivated by political enmity stemming from a murder attempt on a CPI (M) leader.

Apart from Manoj's ghastly murder, the Court noted that the men stood accused of exploding bombs with an "intention to strike terror in the minds of the people of the locality and also in the rank and file of RSS cadre."

In connection with this case, the CBI eventually filed a final report in 2015 accusing the men of various offences under the Indian Penal Code, the Explosive Substances Act, 1908 and the UAPA. The trial in the case was still pending when the accused men moved the High Court challenging their implication in the case.

A single-judge earlier partly allowed the writ petition in so far as it found the trial court to have taken cognisance before prior sanction was granted. The special court/ trial court was directed to apply its mind afresh after examining the sanction and final report before deciding whether cognizance should be taken.

This apart, the single-judge declined to grant the accused any relief, prompting them to move an appeal which was posted before the Division Bench.

One of the contentions made for the accused was that the sanction given by the Central government in this case was not valid since the probe took place in Kerala. The appellants argued that the sanction ought to have been given by the State government. The single-judge had rejected this stance as absurd. On Tuesday, the Division Bench opined that there was no need to interfere with the single-judge's finding.

It further also declined to delve into contentions that the sanction given was not in line with Rules 3 (Time limit for sanction of prosecution) and 4 of the UAPA (Recommendation and Sanction of Prosecution) Rules, 2008. It observed that these were factual elements that may be examined in trial.

The accused had contended that they could not have been charged under the UAPA and that they had been roped in only with the aid of Section 149, IPC (Every member of an unlawful assembly is guilty of the offence committed in the prosecution of a common object).

The Court opined,

"... merely because Section 149 of the IPC is not incorporated under Section 40 (definition of 'offence') of the IPC, that will not disable the investigating agency to rope in other persons who were in the assembly under the UAPA."

With these observations the Division Bench dismissed the appeal, although it added that the trial should not be influenced by the findings and observations made in the judgment.

Senior Advocates K Gopalakrishna Kurup and B Raman Pillai, and Advocates N Sukumaran, Deepthi S Menon, K Suresh and K Viswan appeared for the appellants. ASG P Vijayakumar, CGC Suvin R Menon, Advocate Sasthamangalam S Ajithkumar and Senior Government Pleader Suman Chakravarthy appeared for the respondents.

[Read Judgment]

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