Read Time: 07 minutes
It has been alleged that Roopesh along with other five accused, who are members of the Communist Party of India (Maoist), a proscribed Organization, visited the houses at Viyyad Tribal Colony, Narippatta Panchayat, in Kerala with guns and distributed pamphlets and propagated party's ideology.
A Supreme Court bench of Justices MR Shah and BV Nagarathna today issued notice in a plea by the State Government of Kerala challenging a Kerala High Court decision to quash charges invoked against Maoist Leader Roopesh under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
The bench, while issuing notice, made it returnable on September 19, 2022 and sought reply before the next date of hearing.
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 for framing of UAPA charges violating the time frame of seven days prescribed in the Rules," the 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 High Court had noted.
An authority which was headed by a high court judge (retired) had recommended that UAPA be invoked against Roopesh on February 7, 2018.
In the hearing today, the counsel for the State of Kerala submitted that the High Court had committed serious error in not treating Rules 3 &4 as "directory" in nature. He argued that the delay in the review of evidence by the authority and granting sanction for prosecution by the Government does not in any manner prejudice Roopesh. He further submitted that the delay of six months in granting sanction for Roopesh's prosecution was due to reconstitution of the authority.
Notably, in the SLP, 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.
The counsel for State government further told Supreme Court 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.
Moreover, 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 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.
Case title: State of Kerala Vs Roopesh
Please Login or Register
