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Synopsis

The Supreme Court on September 23, 2024, dismissed an appeal filed by Fuleshwar Gope, an alleged associate of the banned People’s Liberation Front of India, challenging validity of the sanction of his prosecution under the stringent Unlawful Activities (Prevention) Act.

A bench of Justices C T Ravikumar and Sanjay Karol said that the validity of sanction should be challenged at the earliest instance available, before the trial court. 

"We hold that independent review as well as application of mind are questions to be determined by way of evidence and as such should be raised at the stage of trial, so as to ensure that there is no undue delay in the proceedings reaching their logical and lawful conclusion on these grounds," the bench said.

"If such a challenge is raised at an appellate stage it would be for the person raising the challenge to justify the reasons for bringing the same at a belated stage. Such reasons would have to be considered independently so as to ensure that there is no misuse of the right of challenge with the aim to stall or delay proceedings", the bench added.

With regard to a plea raised about mandatory compliance with the Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 (the 2008 Rules), the bench said, the timelines mentioned in Rules 3 & 4 of the 2008 Rules are couched in mandatory language and, therefore, have to be strictly followed.

"This is keeping in view that UAPA being a penal legislation, strict construction must be accorded to it. Timelines imposed by way of statutory Rules are a way to keep a check on executive power which is a necessary position to protect the rights of accused persons. Independent review by both the authority recommending sanction and the authority granting sanction, are necessary aspects of compliance with Section 45 of the UAPA," the bench said.

A plea was also raised by the appellant with regard to Section 22A (offences by the companies) of the UAPA, but the bench said, it could be raised at the trial court.

"Whether or not the exemption under Section 22A applies is a matter to be established by the way of evidence for the person claiming such exemption has to demonstrate that either he was not in charge of the affairs of the company which has allegedly committed the offence, or that he had made reasonable efforts to prevent the commission of the offence. This, once again, is a matter for the Trial Court to consider and not for this Court to decide at this stage, keeping in view that the trial is underway and proceeded substantially," the bench said.

It was alleged the appellant criminally conspired and formed an unlawful association with members of PLFI, namely, Dinesh Gope, Sumant Kumar alias Pawan Kumar, and Hira Devi alias Anita Devi.

It was further alleged the appellant, on the direction of the PLFI chief, formed a company M/s Shiv Shakti Samridhi Infra Pvt Ltd, in the nature of a partnership, for the purpose of directly or indirectly collecting funds from legitimate or illegitimate sources for the use of activities of the outlawed organisation.

On November 10, 2016, an FIR was lodged at Bero Jharkhand after PLFI chief Dinesh Gope alias Kuldeep Yadav alias Banku allegedly brought Rs 25.83 lakhs of demonetised currency to an SBI branch.

The appellant was arrested on July 13, 2020. He filed a writ petition before the High Court of Jharkhand at Ranchi for quashing the Sanction Order of July 22, 2020, cognizance of the second supplementary chargesheet by an order on July 25, 2020 and framing of charges by order on March 16, 2021.

Before the top court, he challenged the validity of the Jharkhand High Court's judgment of March 21, 2023, which rejected his challenge to sanction order as well as cognizance and charge framing orders.

Advocate Balaji Srinivasan for the appellant, contended the sanction was not in consonance with the statutory mandate as it was issued 2 years and 11 months after the incident and 2 years and 6 months after the sanction letter of May 12, 2017, granted by the Principal Secretary, Department of Home, Prisons & Disaster Management, Ranchi.

He contended that clause (2) of Section 45 of the UAPA was violated as the requirement of ‘independent review’ while according sanction was not complied with. He also submitted the validity of the sanction is a question that can be raised at any stage of proceedings. 

The counsel also said that the proviso to Section 22A of the UAPA exempts a person who is not in charge of and responsible for the affairs of the company, from prosecution.

The NIA represented by Additional Solicitor General Vikramjeet Banerjee and senior advocate Swarupma Chaturvedi opposed the plea, saying all the procedures in the case were complied with as the appellant was an active member of a terrorist gang and a close associate of Dinesh Gope and the appellant was involved in collecting and channelizing funds by forming companies. 

The court, however, said that since the trial was underway and numerous witnesses already stood examined, it would refrain from returning any finding on the challenge to the validity of the sanction qua the appellant and leave it to be raised before the trial judge, who shall, if such a question is raised decide, it promptly.

The court also held that the timelines in accordance with Section 45(2) of the UAPA r/w Rules 3 & 4 of the 2008 Rules and the requirement of independent review are necessary aspects of the procedure.

In the case, the bench said, "Since the investigation continued, the gap cannot be termed fatal so as to render the arrest of the appellant as unlawful or illegal. It is also to be noted that in the first supplementary chargesheet the appellant was initially a witness for the prosecution and with further investigation was made an accused thereafter."

In the context of penal laws, the bench said that the authorities tasked with evaluating material prior to granting of sanction for prosecution, or the act of granting sanction itself must apply their mind to each and every facet of the material placed before it to arrive at the conclusion particularly so because the effect of the task at hand is immense. The grant/non-grant of sanction is what sets in motion the machinery of strict laws such as UAPA or the Terrorist and Disruptive Activities (Prevention) Act, 1987, it said.

"Given the severity of these laws and the nature of activities with which they are associated, the effect that they have on the person accused thereunder is not only within the realm of law but also drastically effects social and personal life. It is only after the authority having been handed this task, is of the considered view that sanction can be granted, should it be so done," the bench said.

The bench said, "The procedures qua sanctions provided in such legislations are meant to be followed strictly, to the letter more so to the spirit. Even the slightest of variation from the written word may render the proceedings arising therefrom to be cast in doubt."

The bench also observed that when a timeline is provided, along with the use of the word ‘shall’ and particularly when the same is in the context of a law such as the UAPA, it cannot be considered a mere technicality or formality. It demonstrates clear intention on the part of the Legislature. A compulsion has been imposed, and for compliance with that compulsion, a timeline has been provided, it highlighted.

The bench added that while the legislation is aimed at curbing unlawful activities and practices detrimental to national security and accordingly, provides the authorities of the Government ample power to undertake and complete all procedures and processes permissible under law to that end, at the same time the interest of accused persons must also be safeguarded and protected. 

"It is expected of the Executive, in furtherance of the ideal of protection of national security, that it would work with speed and dispatch," the court said. 

The objection of the appellant arose from the short amount of time taken in recommending and granting sanction against him which he claimed to be a sign of non-application of mind and lack of independent review.

"We are unable to accept such a contention. There is nothing on record to show that relevant material was not placed before the authorities. There is no question, as there rightly cannot be, on the competence of either of the authorities. Therefore, solely on the ground that the time taken was comparatively short or even that other orders were similarly worded cannot call the credibility of the sanction into question," the bench said.

The court clarified that if the sanction is taken exception to, it has to be raised at the earliest instance and not belatedly, however, law does not preclude the same from being challenged at a later stage. 

"It is to be noted that the scheme of the UAPA does not house a provision such as Section 19 of the PC Act which protects proceedings having been initiated on the basis of sanctions which come to be questioned at a later point in time and, therefore, Courts ought to be careful in entertaining belated challenges," the bench said.

The court said that if the question of sanction is raised belatedly, the court, seized of the matter, must consider the reasons for the delay prior to delving into the merits of such objections. 

"This we may say so for the reason that belated challenges on these grounds cannot be allowed to act as roadblocks in trial or cannot be used as weapons in shirking away from convictions arising out of otherwise validly conducted prosecutions and trials," the bench added.

Case Title: Fuleswar Gope Vs Union of India & Ors