Brief Facts
- It was alleged that the appellant, Fuleshwar Gope was an associate of the People’s Liberation Front of India and was acquainted with the facts that Dinesh Gope @ Kuldeep Yadav @ Banku (A-6) was a terrorist and the chief of PLFI who collected money through extortion. He was further said to have criminally conspired and formed an unlawful association with members of PLFI, namely, Dinesh Gope, Sumant Kumar @ Pawan Kumar (A-7) and Hira Devi @ Anita Devi (A-14)
- It was further alleged that the appellant/accused formed a company M/s. Shiv Shakti Samridhi Infra Pvt. Ltd. along with A-14 which was more in the nature of a partnership. The company’s bank account was used to directly/indirectly collect funds from legitimate or illegitimate sources for the use of activities of PLFI on the directions of A-6.
- In 2016, an FIR was registered against six persons u/s 212, 213, 34, and 414 of the Indian Penal Code (IPC) and Sec. 13, 17, and 40 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Sec. 17 of the Criminal Law Amendment Act, 1908 on the allegation that Rs. 25.83 lakhs of demonetized currency were brought to the concerned branch of the State Bank of India by the PLFI chief.
- Thereafter, the Judicial Magistrate took cognizance of the case and the Deputy Commissioner sought sanction to prosecute. The sanction was granted by the Principal Secretary, Department of Home, Prisons & Disaster Management, however, subsequently, the Ministry of Home Affairs (MHA), Government of India issued a transfer order in respect thereto and the FIR was re-registered as a case under the National Investigation Agency (NIA).
- MHA further initiated suo-motu sanction in 2019 against twelve accused persons. Subsequently, the appellant was arrested in 2020 and hence, he filed a writ petition before the High Court seeking quashing of the sanction order. The High Court refused to quash the same and therefore, the appellant approached the Apex Court.
Issues
- Whether the Validity of the Sanction Order can be challenged at any stage?
- Whether a violation of Section 45(2) of the UAPA r/w Rules 3 & 4, if any, vitiates the proceedings? In other words, whether violation of – (a) statutory timelines and (b) the requirement of independent review which includes application of mind, are necessary aspects of procedure without which, any transaction under the UAPA shall be compromised to a point that its sanctity is rendered questionable?
- Whether in the present facts, the argument of the appellant that the transactions in connection with which he has been brought to the book were actually independent of the ones in which Dinesh Gope (A-6) and other members were arrayed as accused, has any merit?
- Whether, in the facts, the statutory exemption under Section 22 A of the UAPA applies to the appellant who claims to be unaware of the affairs of the company?
Held
- The Supreme Court dismissed the appeal for lack of merit, dealing with the issues in detail, critically analysing the legal questions involved.
Validity of the Sanction Order to be challenged before the Trial Court at the earliest instance available
- Sanction, though should be challenged at the earliest possible opportunity, it can be challenged at a later stage as well. 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.
- We have no hesitation in holding that while we recognise the treasured right of an accused to avail all remedies available to him under law, in ordinary circumstances challenge to sanction under UAPA should be raised at the earliest possible opportunity so as to enable the Trial Court to determine the question, for its competence to proceed further and the basis on which any other proceeding on the appellate side would depend on the answer to this question.
Where the Sanction was found to be valid, having been granted by the Authority after applying its mind the contentions as to the non-following of the timelines could not be accepted
- 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 contention of non-application of mind was not accepted by the Court observing that so long as the sanction was by a competent authority and after applying its mind to all materials and the same being reflected in the order, the sanction would hold to be valid.
Timelines imposed under Statutory framework are to be followed strictly
- 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.
- 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.
Relevant Para Nos.
- 17, 41, 51, 52