Valid sanction necessary for prosecution under UAPA, Kerala High Court

Valid sanction necessary for prosecution under UAPA, Kerala High Court

Meera Emmanuel

Failure to obtain mandatory sanction within the time period prescribed would vitiate prosecution launched under the Unlawful Activities (Prevention) Act (UAPA), the Kerala High Court has ruled. In this regard, Justice Raja Vijayaraghavan V highlighted the concerned authorities must “scrupulously stick to the time frame, particularly in view of the very stringent provisions of the Act.” As stated in the judgment passed on Friday in the case of Roopesh v State of Kerala and ors,

“…a valid sanction is sine qua non for enabling the prosecuting agency to approach the Court in order to enable the Court to take cognisance of the offence under the UAP Act. If there is no valid sanction, the Designated Court will get no jurisdiction to try a case against any person mentioned in the report as the Court is forbidden from taking cognisance of the offence without such sanction. If the Designated Court has taken cognisance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction.

The Court was dealing with a challenge made to a Kozhikode Session Court’s dismissal of a revision petition filed by a man accused of offences under the UAPA and under Section 124A (Sedition) of the Indian Penal Code (IPC).

Factual Background

Several men including the petitioner had been arrested for having allegedly distributed seditious pamphlets to households. All the accused were said to be members of the banned CPI (Maoist) group. Subsequently, prosecution was launched against the petitioner, with a sessions court taking cognisance of the same in 2018.

However, appearing for the petitioner, Advocate KS Madhusoodanan contended that no valid sanction was obtained to prosecute the petitioner. As far as the charges under the UAPA were concerned, it was pointed out that the state government had granted sanction to prosecute belatedly – long after the prescribed seven day period under the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 (2008 Rules) had expired. This, he argued, meant that the sanction as well as the prosecution launched consequently, stood vitiated.

The State countered the same by arguing that such irregularity in obtaining the sanction would not render the prosecution process itself illegal, even if it may be bad in law. The delay in issuing sanction was also explained by informing that there was reconstitution of the Authority designated to accord sanction for prosecuting UAPA offences. A further delay of two days was attributed to prior responsibilities entrusted with the new chair, Justice PS Gopinath, to look into Puttingal Temple Enquiry related cases.

Sanction to prosecute for serious criminal offences not mere formality, must be scrupulously obtained, rules High Court

The High Court, however, disagreed with the State’s stance, finding that the prescribed time limit for according sanction ought to have been strictly complied with. The relevant provisions that the State was found to have flouted where Section 45 (2) of the UAPA and Rules 3 and 4 of the 2008 Rules. The Bench observed,

Section 45 (2) the Act as well as Rules 3 and 4 of the Recommendation Rules, employ the word “shall” when it speaks about the time frame within which sanction should be granted.The provisions…leave no manner of doubt that within seven days of the receipt of evidence gathered by the Investigating Officer under the Code, the Authority appointed under Section 45 of the Act shall make its report to the State Government and the Site Government, in turn, have to take a decision regarding sanction for prosecution within seven working days after receipt of recommendation of the Authority.

The judge observed that the need to ensure the strict compliance of these provisions assume particular significance given the serious consequences that follow when a person is accused under the UAPA.

It is trite that when the Act contains very harsh and stringent provisions and when it prescribes a procedure substantially departing from the prevalent ordinary procedural law, the provisions cannot be considered in a liberal manner to the detriment of the accused… The application of provisions, which form part of penal statutes requires strict interpretation and failure to comply with the mandatory requirement of sanction before cognisance is take will vitiate the entire proceedings

When the penalty provided is extremely stringent and the procedure of trial prescribed is compendious, the sanctioning process mentioned…must have to be adopted very seriously and exhaustively than the sanction contemplated in other penal statutes.”

Bearing these principles in mind, the Court found that the decision to prosecute the petitioner, despite there being no valid sanction obtained on time was “totally unacceptable”, more so since the petitioner had been jailed for his alleged crime from December 2015 onwards.

I have no doubt in my mind that the failure of the respondents to scrupulously comply with the statutory stipulations has resulted in failure of justice”,  the judge said.

Further, the Court also took critical note that the State had not obtained sanction under Section 196, CrPC  to prosecute the petitioner for sedition  under Section 124A, IPC.

Since grant of sanction is not a mere formality, the provisions must be observed with utmost strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. Consideration of material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other materials placed before it”, the Court emphasised.

In view of these observations, the Court concluded that the State could not prosecute the petitioner and that the Sessions Court had no jurisdiction to take cognisance of the case against him. Therefore, the High Court allowed the plea and ordered the petitioner’s discharge.

[Read Judgment]

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