[UAPA] Prescribed sanction period for framing charges not absolute: Kerala Government challenges HC order quashing charges against Maoist leader

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The Special leave petition comes in light of the challenge to a Kerala High Court order which had held that the sanction under UAPA, granted after six months from the date of receipt of the recommendation of the authority is not valid and that it is bereft of any application of mind

The State of Kerala has approached the Supreme Court challenging a Kerala High Court decision quashing charges invoked against Maoist Leader Roopesh under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The High Court while allowing the Criminal Revision Petition filed by Roopesh had held that the stipulation of time under the Rule 3 and 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules 2008 is mandatory and sacrosanct and it cannot be waived as a mere irregularity under Section 460(e) CrPC or under Section 465 CrPC. "The government sat over a sanction for six months the framing of UAPA charges violating the time frame of seven days prescribed in the rules," the Kerala High Court had said in its order.

"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 Kerala High Court had observed.

The plea challenging this order has stated that Rule 3 and 4 deal with the time limit for making a recommendation by the Authority to the Central government and time limit for sanction of prosecution by the Central Government respectively, as per section 45 of the UAPA.

An authority which was headed by a high court judge (retired) had recommended that UAPA be invoked against Roopesh  on February 7, 2018. 

The sanction of the state government in the first two crimes was on June 6, 2018, and in the other crime on April 7, 2018; both delayed, according to a report in the Indian Express.

The Special leave petition filed by the State of Kerala argues that delay in the review of evidence by the authority and granting sanction for prosecution by the Government "does not in any manner prejudice Roopesh".

Roopesh has in fact been granted statutory bail in a few cases but he could not execute the same as he was in judicial custody for another crime, the SLP adds.

It has been argued that the High Court has failed to consider that mere use of the word “shall” in the said rules is not sufficient to treat the Rule as mandatory and a legal fiction cannot be stretched beyond the purpose for which it was enacted. 

"...High Court failed to appreciate that the word “shall” is not followed by prohibitive or negative words. The legislative intention is not to make the provision absolute therefore the stipulation of time under Rule 3 and 4 of the Unlawful Activities (Prevention (Recommendation and Sanction of Prosecution) Rules 2008 is only directory in nature...", the plea adds.

State government has further argued that the time limit introduced in Rule 3 and 4 is only a procedural mechanism to speed up the administrative process after investigation on the basis of which the prosecution has to be launched.

"..no specific penalty has been imposed on the breach of the stipulation, which indicates that the provisions were meant to be directory", the SLP adds.

Supreme Court has been further told that delay for according sanction was well explained in the affidavit filed before the High Court by the Home Secretary wherein it was mentioned that the delay was occasioned by the reconstitution of the authority and other ancillary matters.

Arguing that cognizance was already taken upon a police report under Section 190(b) of the CrPC as the police had conducted and completed the investigation and filed chargesheet, Kerala government has submitted that Section 460(e) CrPC is squarely applicable and irregularity, if any, happened in the proceedings in taking cognizance will not vitiate the entire proceedings.

The plea has been filed by Advocate on Record Harshad V Hameed.

More Insight:

Cases registered against Roopesh were for distributing ‘unlawful’ pamphlets and carrying arms (report by Madhyamam).

A total of 40 cases have been registered against Roopesh in various states like Kerala, Tamil Nadu and Karnataka under UAPA.Roopesh and his wife were arrested in May 2015 for alleged maoist activities in Tamil Nadu, Karnataka & Kerala on account of reports that the couple was prepping for an armed struggle in the states. His wife Shyna was granted bail in 2018. 

Case Title: State of Kerala & Ors. vs. Roopesh