Jharkhand High Court
Binod Kumar Pandey @ Vinod Kumar Pandey vs The State Of Jharkhand on 18 December, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 283 of 2024
Binod Kumar Pandey @ Vinod Kumar Pandey,
aged about 52 years, son of Late Kamta Pandey,
resident of village- Sildaha, P.O. & P.S.- Jori,
District- Chatra, Jharkhand.
..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Secretary, Home, R/O Project Bhawan, P.O.
Dhurwa, P.S. Jagannathpur, Dist- Ranchi.
3. The Deputy Superintendent of Police cum
Investigating Officer, Anti Terrorist Squad, R/O-
Police House, P.O. Dhurwa, P.S. - Jagannathpur,
Dist.- Ranchi.
..... ... Respondents
with
W.P.(Cr.) No. 476 of 2023
Kumar Shivendra @ Shiv Sharma @ Raju Sharma
aged about 27 years, son of Aman Kumar Ishwar,
resident of Village- Shivri, P.O. & P.S.-Bariyarpur,
District-Begusarai (Bihar).
..... ... Petitioners
Versus
1. The State of Jharkhand.
2. The Director General of Police, Jharkhand,
Situated at Jharkhand Police Headquarters,
Dhurwa, P.O. & P.S.-Dhurwa, District- Ranchi.
3. The Superintendent of Police, Ramgarh, P.O.&
P.S-Ramgarh, District-Ramgarh.
4. The Officer-In-Charge, Mandu P.S.. P.O. & P.S.
Mandu, District- Ramgarh.
..... ... Respondents
with
W.P.(Cr.) No. 279 of 2024
Siddharth Sahu, aged about 32 years, Son of Manoj
Kumar Sahu, resident of House No. 78/B, Burdwan
Compound, Kali Mandir Road, Shree Ambika
-1- W.P.(Cr.) No. 283 of 2024
and its analogous cases
Apartment, P.O.- G.P.O. & P.S.- Lalpur, District-
Ranchi, Jharkhand (834001).
..... ... Petitioners
Versus
1. The State of Jharkhand through its Principal
Secretary, Department of Home, Jail and Disaster
Management, having its office at 2nd Floor, Project
Bhawan, P.O & P.S- Dhurwa, Dist.- Ranchi
(Jharkhand).
2. Secretary, Department of Law, having its office
at Project Bhawan, P.O & P.S- Dhurwa, Dist.
Ranchi (Jharkhand).
3. Director General of Police, Jharkhand, having its
office at Police Headquarters, Dhurwa, P.O. & P.S.
Dhurwa Town and District - Ranchi (Jharkhand).
4. Additional Director General of Police Law &
Order, Jharkhand having its office at Police
Headquarters, Dhurwa, P.O. & P.S. Dhurwa Town
and District Ranchi (Jharkhand).
5. Deputy Commissioner, Ranchi, having its office
at DC office, P.O & P.S- Kutchery, Dist.- Ranchi,
Jharkhand.
6. Sr. Superintendent of Police, Ranchi, having its
office at S.S.P office, P.O & P.S- Kutchery, Dist.-
Ranchi, Jharkhand.
7. Officer-in-charge, ATS Ranchi having its office
at Dhurva, P.O & PS - Dhurva, Dist. Ranchi
(Jharkhand).
8. Investigating officer, ATS Ranchi having its
office at Dhurva, P.O & PS - Dhurva, Dist.- Ranchi
(Jharkhand).
..... ... Respondents
with
W.P.(Cr.) No. 419 of 2024
1. Anand Pareekh, aged about 44 years, S/o Asha
Ram Pareekh, R/o Ward No. 40, Kalubass, PO &
PS Shridunagargarh, District Bikaner, Rajasthan.
-2- W.P.(Cr.) No. 283 of 2024
and its analogous cases
2. Sunil Kumar Sharma, aged about 29 years, S/o
Brij Lal Sharma, R/o Village Hemasar, PO & PS
Shridunagargarh, District Bikaner, Rajasthan.
3. Anil Sharma, aged about 27 years, S/o Tilok
Ram Sharma, R/o Village Moondar, PO & PS
Nokha, District Bikaner, Rajasthan.
4. Anil Kumar Sharma, aged about 30 years, S/o
Brij Lal Sharma, R/o Village Hemasar, PO & PS
Shridunagargarh, District Bikaner, Rajasthan.
..... ... Petitioners
Versus
1. State of Jharkhand through ATS Ranchi, situated
at PO & PS Dhurwa, District Ranchi.
2. Department of Home, Jail and Disaster
Management through its Principal Secretary,
situated at Project Bhawan, PO & PS Dhurwa,
District Ranchi, Jharkhand.
3. Department of Law, through its Secretary
situated at Project Bhawan, PO & PS Dhurwa,
District Ranchi, Jharkhand.
4. Deputy Commissioner, Ranchi having its office
at Kutchery Road, PO GPO, PS Kotwali, District
Ranchi, Jharkhand.
5. DGP Jharkhand, having its office at Police
Headquarters, PO & PS Dhurwa, District Ranchi,
Jharkhand.
..... ... Respondents
with
W.P.(Cr.) No. 676 of 2024
Md. Ariz Hasnain alias Ariz Hasnain, aged about
21 years, S/o Quaiser Hasnain, R/o 18, Asanbani,
Rehmatnagar, Mahmood Nagar, PO & PS-Godda,
District Godda, Jharkhand.
..... ... Petitioners
Versus
1. State of Jharkhand through ATS, Jharkhand,
situated at PO & PS Dhurwa, District Ranchi.
2. Department of Home, Jail and Disaster
-3- W.P.(Cr.) No. 283 of 2024
and its analogous cases
Management through its Principal Secretary,
situated at Project Bhawan, PO & PS Dhurwa,
District Ranchi, Jharkhand.
3. Department of Law, through its Principal
Secretary situated at Project Bhawan, PO & PS
Dhurwa, District Ranchi, Jharkhand.
4. Deputy Commissioner, Ranchi having its office
at Kutchery Road, PO GPO, PS Kotwali, District
Ranchi, Jharkhand.
5. DGP Jharkhand, having its office at Police
Headquarters, PO & PS-Dhurwa, District Ranchi,
Jharkhand.
..... ... Respondents
--------
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
——
For the Petitioners : Mr. Jitendra Shankar Singh, Advocate.
[in W.P.(Cr.) Nos. 283 of 2023 & 476 of 2023]
: Mr. Indrajit Sinha, Advocate.
: Mrs. Shruti Shreshtha, Advocate.
[in W.P.(Cr.) No. 279 of 2024]
: Mr. Shailesh Poddar, Advocate.
[in W.P.(Cr.) Nos. 419 and 676 of 2024]
For the State : Mr. Jai Prakash, A.A.G.-IA.
: Mr. A.K. Geasen, A.C. to A.A.G.-IA
[in W.P.(Cr.) Nos. 279 and 676 of 2024]
: Mr. Achyut Keshav, A.A.G.-V.
: Mr. Shubham Gautam, A.C. to A.A.G.-V
[in W.P.(Cr.) Nos. 283 of 2024 and 476 of 2023]
: Mr. Deepankar, A.C. to G.A.-III
[in W.P.(Cr.) No. 419 of 2024]
——
C.A.V. on 09.12.2024 Pronounced on 18.12.2024
In all these writ petitions, common question of fact and
law are involved in view of that all these writ petitions have been
heard together with the consent of the respective parties.
2. Heard Mr. Jitendra S. Singh, Mr. Indrajit Sinha and Mr.
Shailesh Poddar, learned counsel appearing for the petitioners and
Mr. Jai Prakash, Mr. Achyut Keshav and Mr. Deepankar, learned
counsel appearing for the respondents-State in respective cases.
W.P.(Cr.) No. 283 of 2024.
3. Prayer in this writ petition is made for quashing of the
order dated 14.03.2024, passed in ATS Case No. 01 of 2022 by the
-4- W.P.(Cr.) No. 283 of 2024
and its analogous cases
learned AJC-XVIII-Cum-Special Judge, ATS, Ranchi, whereby the
petition filed by the prosecution for taking cognizance for the
offences under Sections 16, 17, 18, 20 and 21 of The Unlawful
Activities (Prevention) Act, 1967 [hereinafter referred to as UAP
Act] has been taken and further for a direction to direct the accused
persons to join the trial by amalgamating the supplementary
records, the case is pending before the court of learned AJC-XVIII-
Cum-Special Judge, ATS, Ranchi.
4. The prosecution case is that one Luv Kumar Singh, Police
Inspector, ATS Ranchi, has lodged a FIR alleging therein that he
received a secret information that gangster Aman Srivastava along
with his other criminal associates including the present petitioner
were involved in extorting illegal money from businessman and use
to transfer that illegal money to Hawala Channels, and spreading
terror in and around the Jharkhand state. It is further stated in the
FIR that the informant constituted a special team to carry out raids
in different locations associated with Aman Srivastava gang and its
members. During their raids on 16.01.2022 the police personnel
entered into the house of the petitioner Binod Kumar Pandey and
recovered illegal cash of around 5,42,000/- from the possession of
the petitioner which he has obtained from Aman Srivastava’s
associates and hence this FIR.
W.P.(Cr.) No. 476 of 2023.
5. Prayer in this writ petition is made for a direction to
release the petitioner forthwith, who is lying in judicial custody, in
connection with Mandu (W.B.) P.S. Case No. 236 of 2021, on the
ground that the petitioner has been remanded in the said case
without taking cognizance of the offences after submission of the
chargesheet, the case is pending in the court of learned Additional
Chief Judicial Magistrate, Ramgarh.
6. The FIR was lodged alleging therein that one Shyamal
Mukharjee has submitted a written report alleging therein that the
manager of his company received a call on his mobile whereby
threatening has been given to close his office at Ramgarh and not to
-5- W.P.(Cr.) No. 283 of 2024
and its analogous cases
work without managing Aman Srivastava. Similar threatening calls
were made to the other companies also. On 27.11.2021 at about
12.15 P.M. while the officials were in consultation one miscreant
entered into the office and exploded bomb. The informant also
heard the sound of several explosion and firing. After some time
when they came out Informant found injuries on his back and left
thigh further several others also got injured. The security guard
informed that four persons came on motorcycle and they exploded
bomb and made firing. The miscreants also left one pamphlet
wherein it was mentioned that without managing Aman Srivastava
no work can be done.
W.P.(Cr.) No. 279 of 2024.
7. Prayer in this writ petition is made for quashing of the
letter dated 03.10.2023 as contained in Memo No. 361 (Annexure-
11), whereby, the respondent No. 2 has granted the sanction for
prosecution against the petitioner for the offences under Sections
16, 17, 18, 20 and 21 of the UAP Act, in connection with A.T.S. P.S.
Case No. 01 of 2022. Further prayer is made for stay of the entire
criminal proceedings, the case is pending in the court of learned
AJC-XVIII-Cum-Special Judge, ATS, Ranchi.
8. FIR being ATS Ranchi P.S case No. 01 of 2022 was
instituted by Respondent ATS against the Petitioner and other
accused persons. The expose of the prosecution case is that the
informant of the case is posted as police inspector at ATS. On
15/1/2022 the Superintendent of Police gave secret information
that Aman Shrivastav in connivance with others is extorting money
from businessmen who were carrying on their business in coal and
other businesses. It was further revealed that Aman Shrivastav is
involved in such illegal activities and is procuring the said amount
through Hawala.
W.P.(Cr.) No. 419 of 2024.
9. Prayer in this writ petition is made for quashing of the
letter dated 03.10.2023 as contained in Memo No. 361 (Annexure-
7), whereby sanction for prosecution has been given against the
-6- W.P.(Cr.) No. 283 of 2024
and its analogous cases
petitioners for the offences under Sections 16, 17, 18, 20 and 21 of
the UAP Act, arising out of A.T.S. Ranchi Case No. 01 of 2022, the
case is pending in the court of learned Special Judge, ATS, Ranchi.
10. The case of the prosecution is based on the Singh self-
statement of the informant namely, Luv Kumar Singh, Officer in-
charge, A.T.S that on 15.01.2022 at around 10:45, the
Superintendent of Police, A.T.S received secret information that the
absconding criminal Aman Srivastav along with other accused
persons namely 1. Abhik Srivastav, 2. Manjari Srivastav, 3.
Chandraprakash Ranu, 4. Siddharth Sahu, 5. Asley Lakda, 6. Prince
Raj and his other associates, 7. Vinod Pandey, 8. Amjad Khan, 9.
Zaheer Ansari, 10. Mahmood alias Nepali, 11. Aslam, 12. Firoz Khan
and others extorts huge amounts of money from businessmen and
keep it with him through the medium of hawala. It is further alleged
that Siddharth Sahu is in possession of huge amounts of extorted
money that he intends to send to Aman Srivastav and Abhik
Srivastav through hawala and they plan on extorting other people to
create an atmosphere of fear and panic. Upon receiving the secret
information, a special team was formed. The raiding party caught
one person namely Sanjay Karmarkar who claimed himself to be the
bodyguard of Prince Raj. A revolver and 06 live bullets, 04 rounds 32
bore and 02 rounds 7.65 bore were recovered from the possession
of Sanjay Karmakar. When Mr. Sanjay Karmakar was asked to
produce the license and papers for the gun and bullets, he produced
a license issued in Jammu and Kashmir for the gun and 32 bullets. A
case under the Arms Act was registered against him on 17.01.2022.
Further on 16.01.2022 at around 23:40 pm, a raid was conducted at
the house of Siddharth Sahu wherein Rs. 28 Lakh 88 thousand were
recovered from the almirah of his house. Upon questioning he
disclosed that before this he had received huge amounts of money
on the instructions of Manjari Srivastav and Abhik Srivastav through
Pintu. He used to give the money to Sunil or his other associates
who would then deliver the same in the bank accounts of Aman
Srivastav through hawala or other means. Aman Srivastav after the
-7- W.P.(Cr.) No. 283 of 2024
and its analogous cases
death of his father Sushil Srivastav who was an infamous gangster of
Jharkhand runs his gang along with his brother Abhik Srivastav,
sister Manjari Srivastav and brother-in-law Chandraprakash Sahu.
Other than the brother and sister of Aman Srivastav, 1. Ashley Lakra,
2. Prince Raj. 3. Vinod Kumar Pandey, 4. Amjad Khan, 5. Zaheer
Ansari, 6. Mahmood alias Nepali, 7. Aslam, 8. Firoz Khan were
involved in the criminal activities and extortion racket of Aman
Srivastav. During the raid at the house of Vinod Kumar Pandey on
16.01.2022 at around 22:50 pm, 100 notes of Rs. 2000 and 684
notes of Rs. 500, a total of Rs. 5,42,000/-were recovered. Upon
asking the source of the recovered money from Vinod Kumar
Pandey, he confessed that he is an active member of the gang of
Aman Srivastav and the recovered money was gained through
extortion which he was supposed to deposit in the bank accounts of
Aman Srivastav and Abhik Srivastav through hawala. Accordingly, a
case against Aman Srivastav and his other associates namely 1.
Abhik Srivastav, 2. Manjari Srivastav, 3. Ashley Lakda, 4. Prince Raj, 5.
Vinod Kumar Pandey, 6. Amjad Khan. 7. Zaheer Ansari, 8. Mahmood
alias Nepali, 9. Aslam, 10. Firoz Khan, 11. Sidharth Sahu, 12.
Chandraprakash Sahu, 13. Pintu, and 14. Sunil was registered.
W.P.(Cr.) No. 676 of 2024.
11. Prayer in this writ petition is made for quashing of the
sanction order dated 14.05.2024 (Annexure-3), whereby, the
sanction for prosecution against the petitioner for the offences
under Sections 16, 18, 38(2) and 39(2) of the UAP Act has been
given, in connection with A.T.S. P.S. Case No. 13 of 2023. Further
prayer is made for stay of the entire criminal proceedings, the case
is pending in the court of learned Special Judge, ATS, Ranchi.
12. The FIR was lodged alleging therein that the police
station in charge of the anti-terrorism squad (ATS), Ranchi,
Jharkhand namely Luv Kumar Singh received secret information on
02.11.2023 that the present Petitioner is promoting the activities of
ISIS through social media and also misleading innocent people and
linking them with the organization. Thereafter upon the direction of
-8- W.P.(Cr.) No. 283 of 2024
and its analogous cases
the senior official, the informant started investigation and during
the investigation, a suspicious chat was found in his telegram on his
mobile which he told belonged to another person namely Mohd.
Naseem, who is associated with the terrorist organization and sent
him books like Jihad and Kufr Beeth Tagoot. It is alleged that the
Petitioner started watching banned videos of various organizations
through social media. It is alleged that incriminating photos and
videos were found in his mobile phone. In this form, being a
member of a banned terrorist organization, anti-national
organization, propagating collecting funds, activities, creating the
conducting tension between two communities, sending messages
among different people, glorifying the members terrorist
organizations, falls etc. criminal offences. Hence the present FIR.
13. Mr. Jitendra S. Singh, learned counsel appearing for the
petitioners in W.P.(Cr.) No. 283 of 2024 and W.P.(Cr.) No. 476 of
2023 has submitted that by the orders dated 20.12.2022 and
21.03.2023, the request made for sanction was rejected twice,
which is contained in Annexure-3 series. He submits that by way of
Annexure-7 by the impugned order dated 03.10.2023, the sanction
has been granted by the Principal Secretary-Cum-Law, Government
of Jharkhand. He further submitted that in absence of no fresh
recommendation, the said sanction has been granted. He then
submitted that who is the competent authority of granting sanction
is not clear. By way of drawing the attention of the court to Section
45 of the UAP Act, he submitted that in light of the said Section, no
court can take cognizance in absence of previous sanction by the
appropriate authority. He further draws the attention of the court
to Rule 2(1)(b) of The Unlawful Activities (Prevention,
Recommendation and Sanction of Prosecution) Rules, 2008 and
submitted that the authority means the Authority to be appointed
by the Central Government in light of sub-Section (2) of Section 45
of UAP Act. By way of referring the said Rule, he submitted that
whether the authority is competent to sanction, it is not clear. He
further refers to Rules 3 and 4 of the said Rule and submitted that
-9- W.P.(Cr.) No. 283 of 2024
and its analogous cases
there is time limit for making the recommendation by the authority
and further time is prescribed under Rule-4 for sanction of
prosecution. By way of referring two Rules, he submitted that the
recommendation should be within seven working days of the receipt
of the evidence gathered by the investigating officer under the Code
and within seven working days of the sanction of prosecution. He
further submitted that belatedly the sanction was granted which is
not in accordance with the law, in view of these facts, the order of
sanction and order dated 14.03.2024, passed by the learned Special
Court, ATS, Ranchi is violative, in view of that these orders may
kindly be quashed. He relied in the case of Fuleshwar Gope Versus
Union of India & Ors., reported in 2024 SCC OnLine SC 2610,
where in para-33, the Hon’ble Supreme Court has held as under:-
“33. In matters of strict construction,
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. 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 concern expressed by the
Bombay High Court is that a strict
interpretation of the timeline may defeat-10- W.P.(Cr.) No. 283 of 2024
and its analogous cases
the objective of the legislation. While on
first blush, such a statement is attractive,
we cannot lose sight of the fact that the
time granted is only for consideration of
the material collected by way of an
independent review and then making a
recommendation whereafter the
sanctioning authority may then consider
the materials as well as recommendation
to finally, grant or deny the sanction. It is
not for the purpose of the investigation
itself, which understandably can be a
time-consuming process, given the
multiple variables involved. There have to
be certain limitations within which
administrative authorities of the
Government can exercise their powers.
Without such limitations, power will
enter the realm of the unbridled, which
needless to state is, antithetical to a
democratic society. Timelines in such
cases, serve as essential aspects of checks
and balances and of course, are
unquestionably important. If the view of
the Bombay and Jharkhand High Courts
is allowed to stand it would be
tantamount to the Judicial Wing
supplanting its view in place of the
legislature which is impermissible in view
of the doctrine of separation of powers.
We find support for our view in the
Constitution Bench decision in A.R.
Antulay v. Ramdas Sriniwas Nayak,
wherein D.A. Desai, J., held as under:
“18. It is a well-established cannon of
construction that the court should read
the section as it is and cannot rewrite it
to suit its convenience; nor does any
cannon of construction permit the court
to read the section in such manner as to
render it to some extent otiose.”
[See also : Union of India v. Deoki Nandan
Aggarwal; Institute of Chartered
-11- W.P.(Cr.) No. 283 of 2024
and its analogous cases
Accountants of India v. Price Waterhous*;
and Shiv Shakti Coop. Housing
Society v. Swaraj Developers]
The legislative intent is clear. Rules
made by virtue of statutory powers
prescribe both a mandate and a time
limit. The same has to be followed. Here
itself we may clarify that the conclusion
arrived at by us in respect of the strict
adherence to the timeline mentioned in
Rules 3 & 4 of the 2008, Rules shall not
affect any decision of the authorities
where the same may or may not have
been followed as on date of this
judgment. For ample clarity, it is stated
that the observations made in this
judgment shall apply prospectively.
14. Relying on the above para, he submitted that the strict
construction of timeline is required to be followed, as has been held
by the Hon’ble Supreme court , in view of that the orders of the
learned court must go.
15. Mr. Indrajit Sinha, learned counsel appearing for the
petitioner in W.P.(Cr.) No. 279 of 2024 has adopted the argument of
Mr. Singh and further added by way of referring Sub-Section (2) of
Section 45 of the UAP Act and submitted that in absence of review
committee recommendation, Sanction is bad. He also relied on the
same judgment of Fuleshwar Gopa (supra). He submitted that in
absence of any new material, the sanction has been provided, which
is against the mandate of law. He relied in the case of The State of
Telangana Versus C. Shobha Rani in Criminal Appeal No. 4954 of
2024, wherein the Hon’ble Apex Court in para-5, it has been held as
follows:-
“5. On the issue qua sanction, we are in
agreement with the views expressed by
the High Court. The subsequent sanction
was given based on the same material,
therefore, in the absence of any other
contra material which weighed in the-12- W.P.(Cr.) No. 283 of 2024
and its analogous cases
mind of the sanctioning authority, the
same cannot be sustained in the eye of
law. However, we find force in the other
submission made by learned senior
counsel for the appellant that the High
Court did not even go into the charges
pertaining to Sections 420, 467, 468, 471
and 1298 of the IPC. We are also in
agreement with the submission made by
learned senior counsel appearing for the
appellant that there is no need for grant
of sanction under Section 197 of IPC.”
16. Mr. Indrajit Sinha, learned counsel appearing for the
petitioner has further relied in the case of Sanjay Dutt Versus State
through C.B.I. Bombay (II), reported in (1994) 5 SCC 410 and he
refers to paras-13 to 17, which are as under:-
“13. The TADA Act was enacted to make
special provisions for the prevention of,
and for coping with, terrorist and
disruptive activities and for matters
connected therewith or incidental thereto
in the background of escalation of the
terrorist and disruptive activities in the
country. There is also material available
for a reasonable belief that such activities
are encouraged even by hostile foreign
agencies which are assisting influx of
lethal and hazardous weapons and
substances into the country to promote
escalation of these activities. The felt need
of the times is, therefore, proper
balancing of the interest of the nation vis-
a-vis the rights of a person accused of an
offence under this Act. The rights of a
person found in unauthorised possession
of such a weapon or substance in this
context, to prove his innocence of
involvement in a terrorist or disruptive
activity, is to be determined.
14. The construction made of any
provision of this Act must, therefore, be to
promote the object of its enactment to-13- W.P.(Cr.) No. 283 of 2024
and its analogous cases
enable the machinery to deal effectively
with persons involved in, and associated
with, terrorist and disruptive activities
while ensuring that any person not in
that category should not be subjected to
the rigours of the stringent provisions of
the TADA Act. It must, therefore, be borne
in mind that any person who is being
dealt with and prosecuted in accordance
with the provisions of the TADA Act must
ordinarily have the opportunity to show
that he does not belong to the category of
persons governed by the TADA Act. Such a
course would permit exclusion from its
ambit of the persons not intended to be
covered by it while ensuring that any
person meant to be governed by its
provisions, will not escape the provisions
of the TADA Act, which is the true object
of the enactment. Such a course while
promoting the object of the enactment
would also prevent its misuse or abuse.
Such a danger is not hypothetical but real
in view of serious allegations supported
by statistics of the misuse of provisions of
the TADA Act and the concern to this
effect voiced even by the National Human
Rights Commission.
15. It is the duty of courts to accept a
construction which promotes the object of
the legislation and also prevents its
possible abuse even though the mere
possibility of abuse of a provision does
not affect its constitutionality or
construction. Abuse has to be checked by
constant vigilance and monitoring of
individual cases and this can be done by
screening of the cases by a suitable
machinery at a high level. It is reported
that in some States, after the decision of
this Court in Kartar Singh [(1994) 3 SCC
569 : 1994 SCC (Cri) 899] , high-powered
committees have been constituted for
screening all such cases. It is hoped that-14- W.P.(Cr.) No. 283 of 2024
and its analogous cases
this action will be taken in all the States
throughout the country. Persons aware of
instances of abuse, including the National
Human Rights Commission, can assist by
reporting such instances with particulars
to that machinery for prompt and
effective cure. However, that is no reason,
in law, to doubt its constitutionality or to
alter the proper construction when there
is a felt need by Parliament for enacting
such a law to cope with, and prevent
terrorist and disruptive activities
threatening the unity and integrity of the
country.
16. The settled rule of construction of
penal provisions is, that “if there is a
reasonable interpretation which will
avoid the penalty in any particular case,
we must adopt that construction and if
there are two reasonable constructions,
we must give the more lenient one”; and if
“two possible and reasonable
constructions can be put upon a penal
provision, the court must lean towards
that construction which exempts the
subject from penalty rather than the one
which imposes penalty”. (See London &
North Eastern Rly Co.v. Berriman [(1946)
1 All ER 255, 270 (HL)]
; TolaramRelumal v. State of
Bombay [(1955) 1 SCR 158 : AIR 1954 SC
496 : 1954 Cri LJ 1333] and State of
M.P. v. Azad Bharat Finance Co. [1966
Supp SCR 473 : AIR 1967 SC 276 : 1967
Cri LJ 285] )
17. Applying the settled rule of
construction of penal statutes in Niranjan
Singh Karam Singh
Punjabi v. JitendraBhimrajBijjaya [(1990)
4 SCC 76 : 1991 SCC (Cri) 47] , a Division
Bench of this Court speaking through one
of us (Ahmadi, J.) construing certain
provisions of the TADA Act reiterated the
principle thus : (SCC pp. 85-86, para 8)
-15- W.P.(Cr.) No. 283 of 2024
and its analogous cases
“The Act is a penal statute. Its
provisions are drastic in that they provide
minimum punishments and in certain
cases enhanced punishments also; make
confessional statements made to a police
officer not below the rank of a
Superintendent of Police admissible in
evidence and mandates raising of a
rebuttable presumption on proof of facts
stated in clauses (a) to (d) of sub-section
(1) of Section 21. Provision is also made in
regard to the identification of an accused
who is not traced through photographs.
There are some of the special provisions
introduced in the Act with a view to
controlling the menace of terrorism.
These provisions are a departure from the
ordinary law since the said law was found
to be inadequate and not sufficiently
effective to deal with the special class of
offenders indulging in terrorist and
disruptive activities. There can, therefore,
be no doubt that the legislature considered
such crimes to be of an aggravated
nature which could not be checked or
controlled under the ordinary law and
enacted deterrent provisions to combat
the same. The legislature, therefore, made
special provisions which can in certain
respects be said to be harsh, created a
special forum for the speedy disposal of
such cases, provided for raising a
presumption of guilt, placed extra
restrictions in regard to the release of the
offender on bail, and made suitable
changes in the procedure with a view to
achieving its objects. It is well settled that
statutes which impose a term of
imprisonment for what is a criminal
offence under the law must be strictly
construed.
***
Therefore, when a law visits a person with
serious penal consequences extra care
-16- W.P.(Cr.) No. 283 of 2024
and its analogous cases
must be taken to ensure that those whom
the legislature did not intend to be
covered by the express language of the
statute are not roped in by stretching the
language of the law.”
With respect, we fully concur with the
above perception for construing the
provisions of the TADA Act.
17. Relying on the above judgments, he submitted that if the
statute provides certain way, the provision is required to be followed
in strict way, in view of the settled rule of construction of penal
provision. On these grounds, he submitted that the orders are bad in
law, in view of that, those orders may kindly be quashed.
18. Mr. Shailesh Poddar, learned counsel appearing for the
petitioners in W.P.(Cr.) Nos. 419 and 676 of 2024 has also adopted
the arguments of Mr. Jitendra S. Singh and Mr. Indrajit Sinha and
further added by way of relying the case of Ashraf Khan @ Babu
Munne Khan & Ors. Versus State of Gujarat, reported in
MANU/SC/0790/2012 / (2012) 11 SCC 606. He refers to Paras-
32, 43 and 46, which are as under:-
32. Another question which needs our
attention is the effect of approval dated
15th of June, 1994 given by the Additional
Chief Secretary, Home Department of the
State. Section 20-A of TADA authorises the
District Superintendent of Police to grant
approval for recording the offence and
Additional Chief Secretary of the Home
Department or for that matter, State
Government does not figure in that. The
legislature has put trust on the District
Superintendent of Police and therefore it is
for him to uphold that trust and nobody
else. Hence approval by the Additional
Chief Secretary is inconsequential and it
will not save the prosecution on this count,
if found vulnerable otherwise. We may
however observe that in order to prevent
the abuse of TADA, the State Government
may put other conditions and prescribe-17- W.P.(Cr.) No. 283 of 2024
and its analogous cases
approval by the Government or higher
officer in the hierarchy but the same
cannot substitute the requirement of
approval by the District Superintendent of
Police. Not only this, the District
Superintendent of Police is obliged to
grant approval on its own wisdom and
outside dictate would vitiate his decision.
This view finds support from the decision
of this Court in the case of Anirudhsinhji
Karansinhji Jadeja (Supra).
43. We appreciate the anxiety of the police
officers entrusted with the task of
preventing terrorism and the difficulty
faced by them. Terrorism is a crime far
serious in nature, more graver in impact
and highly dangerous in consequence. It
can put the nation in shock, create fear
and panic and disrupt communal peace
and harmony. This task becomes more
difficult when it is done by organized
group with outside support. Had the
investigating agency not succeeded in
seizing the arms and explosives, the
destruction would have been enormous.
However, while resorting to TADA, the
safeguards provided therein must
scrupulously be followed. In the country of
Mahatma, “means are more important
than the end”. Invocation of TADA without
following the safeguards resulting into
acquittal gives an opportunity to many and
also to the enemies of the country to
propagate that it has been misused and
abused. District Superintendent of Police
and Inspector General of Police and all
others entrusted with the task of operating
the law must not do anything which allows
its misuse and abuse and ensure that no
innocent person has the feeling of
sufferance only because “My name is
Khan, but I am not a terrorist”.
46. In the result, we allow the appeals
preferred by those accused who have been
convicted and sentenced by the Designated
-18- W.P.(Cr.) No. 283 of 2024
and its analogous cases
Court and set aside the judgment and
order of their conviction and sentence.
However, we dismiss the appeals preferred
by the State against the inadequacy of
sentence and acquittal of some of the
accused persons.
19. Relying on the above judgment, he submitted that there
is non-compliance of the statutory provision, as such the impugned
orders will not survive. He further added that the procedure
prescribed in the Act has not been followed. On these grounds, he
submitted that these orders may kindly be quashed.
20. Per Contra, Mr. Jai Prakash, learned A.A.G.-IA, appearing
for the respondents-State has opposed the prayer and submitted
that these arguments can only be appreciated in the trial and that
cannot be a subject matter of Article 226 of the Constitution of India.
He submitted that in light of The National Investigation Agency Act,
2008 (hereinafter referred to as the NIA Act) the definition of
Section 2(1)(f) is “schedule” means the schedule to this Act. By way
of referring the Schedule, he submitted that UAP Act is also coming
under the Schedule offence under the NIA Act. By way of further
referring definition 2(1)(i), he submitted that in light of this the
expression used but not defined in this Act the Code will apply. He
submitted that in view of the above, the Cr.P.C. is also applicable in
the case, arising out of the UAP Act. He further refers to Sub-
Sections (4), (5) and (6) of Section 6 of the NIA Act and submitted
that where the Central Government is of the opinion that the
offence is a Scheduled Offence, can be transferred to the competent
Government in the case registered under Section 154 of the Cr.P.C.
21. By way of referring Section-4 of the Cr.P.C. he submitted
that the procedure prescribed therein is to be followed. He further
submitted that the NIA Act does not provide procedure, in view of
that the procedure of Cr.P.C. is being followed.
22. By way of referring the FIR, contained in Annexure-1 in
W.P.(Cr.) No. 279 of 2024, which is registered under Section 154 of
the Cr.P.C. is there and in light of Annexure-3, he submitted that the
-19- W.P.(Cr.) No. 283 of 2024
and its analogous cases
report is there that is under the Cr.P.C. He submitted that the once
the offence either under the NIA Act or under the UAP Act, the Cr.P.C.
is also applicable. He relied in the case of State of Bihar & Ors.
Versus Rajmangal Ram, reported in (2014) 11 SCC 388 and he
refers to Paras-3, 6, 7, 8 and 9, which are as under:-
“3. Though the learned counsel for both
sides have elaborately taken us through
the materials on record including the
criminal complaints lodged against the
respondents; the pleadings made in
support of the challenge before the High
Court, the respective sanction orders as
well as the relevant provisions of the Rules
of Executive Business, we do not consider
it necessary to traverse the said facts in
view of the short question of law arising
which may be summed up as follows:
“Whether a criminal prosecution ought
to be interfered with by the High Courts at
the instance of an accused who seeks mid-
course relief from the criminal charges
levelled against him on grounds of
defects/omissions or errors in the order
granting sanction to prosecute including
errors of jurisdiction to grant such
sanction?”
6. In a situation where under both the
enactments any error, omission or
irregularity in the sanction, which would
also include the competence of the
authority to grant sanction, does not
vitiate the eventual conclusion in the trial
including the conviction and sentence,
unless of course a failure of justice has
occurred, it is difficult to see how at the
intermediary stage a criminal prosecution
can be nullified or interdicted on account
of any such error, omission or irregularity
in the sanction order without arriving at
the satisfaction that a failure of justice has
also been occasioned. This is what was
decided by this Court in State v. T.
-20- W.P.(Cr.) No. 283 of 2024
and its analogous cases
Venkatesh Murthy [(2004) 7 SCC 763 :
2004 SCC (Cri) 2140 (paras 10 and 11)]
wherein it has been inter alia observed
that : (SCC p. 767, para 14)
“14. … Merely because there is any
omission, error or irregularity in the
matter of according sanction, that does not
affect the validity of the proceeding unless
the court records the satisfaction that such
error, omission or irregularity has resulted
in failure of justice.”
(emphasis supplied)
7. The above view also found reiteration
in Parkash Singh Badal v. State of
Punjab [(2007) 1 SCC 1 : (2007) 1 SCC
(Cri) 193 (para 29)] wherein it was, inter
alia, held that mere omission, error or
irregularity in sanction is not to be
considered fatal unless it has resulted in
failure of justice. In Parkash Singh
Badal [(2007) 1 SCC 1 : (2007) 1 SCC
(Cri) 193 (para 29)] it was further held
that Section 19(1) of the PC Act is a matter
of procedure and does not go to the root of
jurisdiction. On the same line is the
decision of this Court in R.
Venkatkrishnan v. CBI [(2009) 11 SCC 737
: (2010) 1 SCC (Cri) 164] . In fact, a
three-Judge Bench in State of
M.P. v. Virender Kumar Tripathi [(2009)
15 SCC 533 : (2010) 2 SCC (Cri) 667]
while considering an identical issue,
namely, the validity of the grant of
sanction by the Additional Secretary of the
Department of Law and Legislative Affairs
of the Government of Madhya Pradesh
instead of the authority in the parent
department, this Court held that in view of
Section 19(3) of the PC Act, interdicting a
criminal proceeding mid-course on ground
of invalidity of the sanction order will not
be appropriate unless the court can also
reach the conclusion that failure of justice
had been occasioned by any such error,
-21- W.P.(Cr.) No. 283 of 2024
and its analogous cases
omission or irregularity in the sanction. It
was further held that failure of justice can
be established not at the stage of framing
of charge but only after the trial has
commenced and the evidence is led (para
10 of the report).
8. There is a contrary view of this Court
in State of Goa v. Babu Thomas [(2005) 8
SCC 130 : 2005 SCC (Cri) 1995] holding
that an error in grant of sanction goes to
the root of the prosecution. But the
decision in Babu Thomas [(2005) 8 SCC
130 : 2005 SCC (Cri) 1995] has to be
necessarily understood in the facts thereof,
namely, that the authority itself had
admitted the invalidity of the initial
sanction by issuing a second sanction with
retrospective effect to validate the
cognizance already taken on the basis of
the initial sanction order. Even otherwise,
the position has been clarified by the
larger Bench in State of M.P. v. Virender
Kumar Tripathi [(2009) 15 SCC 533 :
(2010) 2 SCC (Cri) 667] .
9. In the instant cases the High Court had
interdicted the criminal proceedings on the
ground that the Law Department was not
the competent authority to accord sanction
for the prosecution of the respondents.
Even assuming that the Law Department
was not competent, it was still necessary
for the High Court to reach the conclusion
that a failure of justice has been
occasioned. Such a finding is
conspicuously absent rendering it difficult
to sustain the impugned orders
[Rajmangal Ram v. State of Bihar,
Criminal Writ No. 487 of 2011, order
dated 23-3-2012 (Pat)] , [Shankar
Prasad v. State of Bihar, Criminal Misc.
No. 44151 of 2008, order dated 3-3-2011
(Pat)] of the High Court.”
23. Relying on the above judgment, he submitted that the
sanction and any matter arising out of the sanction can only be
-22- W.P.(Cr.) No. 283 of 2024
and its analogous cases
appreciated in the trial and when the trial is proceeded and
something is coming then only the court can examine the same.
24. Mr. Jai Prakash, learned counsel appearing for the
respondent-State submitted that relying on the several judgments,
the Bombay High Court in the case of Pragya Singh
Chandrapalsingh Thakur Versus State of Maharashtra, through
National Investigating Agency (MA) New Delhi, reported in 2017
SCC OnLine Bom 493, in para-81, it has been held as under:-
“81. Therefore, what follows from the
discussion of above decisions is that, it
depends upon the nature of objection
raised to the Sanctioned Order as to
when it can be decided. In this respect,
one can safely place reliance on the
Judgment of our own High Court in Anil
Sadashiv Nanduskar v. State of
Maharashtra, Laws (Bom) -2007-11-96,
cited by learned counsel for Intervenor.
In this case, the ‘sanction’ granted under
the provisions of Section 21A and 23(2)
of the MCOC Act was challenged on the
ground that concerned authorities had
not applied the mind properly. It was
contended that the letter of approval did
not disclose the material placed before
the Sanctioning Authority and the
Sanction Order, ex-facie, did not disclose
that the concerned authority has
considered as to whether the Appellant
was member of the alleged syndicate
involved in commission of the offence.
While dealing with these submissions,
after taking into consideration the law
laid down by the Hon’ble Apex Court in
various authorities, the Division Bench
of this Court was pleased to observe as
follows:–
“The settled law by a catena of
decisions of Apex Court is to the effect
that it is desirable that every order-23- W.P.(Cr.) No. 283 of 2024
and its analogous cases
whether the approval or sanction, it
should speak for itself, i.e. ex-facie, it
should disclose consideration of the
materials placed before it and
application of mind thereto. However,
failure to reproduce or refer those
recitals in the resolution or order itself
would not render the order of approval
or sanction to be invalid unless the
prosecution fails to establish by leading
evidence that all the materials necessary
for the grant of approval or sanction
were placed before the concerned
authority for due application of mind by
such authority before the grant of
approval and or sanction. It apparently
discloses that question of validity of
approval or sanction cannot be decided
unless the prosecution is afforded
opportunity to lead evidence in that
regard. Undoubtedly, an accused
desiring to raise objection regarding the
defects in such approval or sanction, or,
grant, he can raise such objection;
however, for conclusive decision on the
said point, the accused has to wait till the
trial is complete and on that ground, he
cannot insist for discharge unless the
objection relates to inherent lack of
jurisdiction to the concerned authority to
grant sanction or approval and such
issue can be decided on undisputed
facts. The law being well settled to the
effect that the prosecution in a case
where sanction or the approval order
does not ex-facie show consideration of
all the materials and/or application of
mind, is entitled to establish the same by
leading necessary evidence regarding
production of materials before the
concerned authority, the question of
discharge of accused merely on the basis
of such objection being raised cannot-24- W.P.(Cr.) No. 283 of 2024
and its analogous cases
arise. The decision on the point of defect,
if any, in the order of approval or
sanction will have to be at the conclusion
of the trial.” [Emphasis Supplied]
25. Relying on the above judgment, he submitted that on the
point of defect, if any, in the order of approval or sanction, if any, will
have be considered at the conclusion of the trial. On these grounds,
he submitted that these writ petitions are fit to be rejected. He
distinguished the judgment relied by Mr. Poddar in the case of
Ashraf Khan @ Babu Munne Khan & Ors. (Supra) and submitted
that in that case, the trial was over and judgment was delivered and
thereafter that order was passed, in view of that the said order is
distinguishable in the facts of the present case. He further refers to
the judgment relied by Mr. Jitendra S. Singh and Mr. Indrajit Sinha,
learned counsels in the case of Fuleshwar Gope (Supra) is
concerned, that in view of para-33 thereof in the last part of that
para, it has been observed that the judgment will apply
prospectively. He further submitted that the case of Fuleshwar
Gope (supra) is arising out of the judgment of the Division Bench of
this Court, in which the sanction was also under challenge, however,
that case has also been dismissed with certain observation. On these
grounds, he submitted that those orders cannot be the subject
matter of scrutiny, unless the trial begins.
26. Mr. Jitendra S. Singh, learned counsel appearing for the
petitioners by way of reply, has submitted that the earlier refusal
and further sanction is not explained and how the further sanction
was made that is not explained by the State counsel. He submitted
that the sanction has to be granted at the earliest and if it is not
done, that is required to be questioned at the earliest, as observed
in the case of Fuleshwar Gope (Supra). He further submitted that
so far the judgment in the case of Fuleshwar Gope (Supra) with
regard to prospectivity is concerned, that is with regard to time limit
only.
27. In view of the above submissions of the learned counsel
-25- W.P.(Cr.) No. 283 of 2024
and its analogous cases
appearing for the parties, the only question is required to be
answered by this court as to whether the sanction order is bad or
not and if the court is proceeded that can be looked into in the trial
or at this stage.
28. The allegation against the petitioner Binod Kumar
Pandey @ Vinod Kumar Pandey in W.P.(Cr.) No. 283 of 2024 is made
of illegal extortion of money from the businessmen and used to
transfer that illegal money through hawala channels and spreading
terror in and round the State of Jharkhand.
29. The allegation against the petitioner Kumar Shivendra @
Shiv Sharma @ Raju Sharma in W.P.(Cr.) No. 476 of 2023 is of
threatening and not to work without managing Aman Srivastava
and similar threatening calls were made to the other companies also
and exploding of the bomb in the office of one Shayamal Mukherjee
as well as firing.
30. The allegation against the petitioner Siddharth Sahu in
W.P.(Cr.) No. 279 of 2024 of extorting the money from businessmen,
who were carrying on their business in coal and other businesses
and one Aman Srivastava is involved in such illegal activities and is
procuring the illegal amount through hawala channel.
31. The allegation against the petitioners Anand Pareekh,
Sunil Kumar Sharma, Anil Sharma and Anil Kumar Sharma, in
W.P.(Cr.) No. 419 of 2024 of extorting huge amount from the
businessmen through the medium of hawala and further allegations
are there against them of retaining huge amount.
32. The allegation against the petitioner Md. Ariz Hasnain
alias Ariz Hasnain in W.P.(Cr.) No. 676 of 2024 of promoting the
activities of ISIS through social media and misleading innocent
people and linking them with the organization. Further allegations
are there of anti-national organization propagating and collecting
funds activities creating the tension between two communities.
33. Thus, the serious allegations are there against all the
petitioners and chargesheet has also been submitted against them.
34. It is an admitted position that by Annexure-3 series in
-26- W.P.(Cr.) No. 283 of 2024
and its analogous cases
W.P.(Cr.) No. 283 of 2024, earlier the sanction was refused, however,
later on by order dated 03.10.2023, the sanction has been granted
under Sections 16, 17, 18, 20 and 21 of the UAP Act. Further in
W.P.(Cr.) No. 476 of 2023, the sanction was granted by order dated
11.01.2024 and in W.P.(Cr.) No. 279 of 2024, the sanction was
granted by order dated 03.10.2023. In W.P.(Cr.) No. 419 of 2024, the
sanction as granted by order dated 03.10.2023 and in W.P.(Cr.) No.
676 of 2024, the sanction was also granted by order dated
14.05.2024 and all these sanctions were granted by the Law
Secretary-cum-Legal Advisor and all these were granted looking
into the nature of allegations made against the petitioners. The
learned court, relying on the said and after receiving of the sanction
order, has proceeded in the matter and a petition was filed with
regard to delay in the sanction and proceeding in the matter, the
learned court has decided the same by order dated 14.03.2024. The
learned court has proceeded considering that prima facie case has
been made out and the sanction has been granted and the
sanctioning authority has perused the material and thereafter the
reasons have been given of proceeding in the matter and dismissing
the petition, filed by the defence by order dated 14.03.2024.
35. Rule-2(1)(b) of The Unlawful Activities (Prevention,
Recommendation and Sanction of Prosecution) Rules, 2008 defines
the authority. Rules-3 and 4 of the said Rule speaks of time limit for
making the recommendation by the authority and Hon’ble Supreme
Court in the case of Fuleshwar Gope (Supra) in para-33, has held
that it is required to be followed strictly, however, in the same para,
it has been observed that the judgment will operate prospectively
and these case are prior of the delivery of the said judgment.
Section 45 of the UAP Act, speaks as under:-
[(1)] No court shall take cognizance of
any offence–
(i) under Chapter III without the
previous sanction of the Central
Government or any officer authorised
by the Central Government in this-27- W.P.(Cr.) No. 283 of 2024
and its analogous cases
behalf;
(ii)under Chapter IV and VI without the
previous sanction of the Central
Government or, as the case may be, the
State Government, and [if] such offence
is committed against the Government
of a foreign country without the
previous sanction of the Central
Government.
[(2) Sanction for prosecution under
sub-section (1) shall be given within
such time as may be prescribed only
after considering the report of such
authority appointed by the Central
Government or, as the case may be, the
State Government which shall make an
independent review of the evidence
gathered in the course of investigation
and make a recommendation, within
such time as may be prescribed, to the
Central Government or, as the case may
be, the State Government.]”
36. Section 45(1)(i) of the UAP Act mandates that no court
shall take cognizance of any offence under chapter-III of the said Act
without the previous sanction of the Central Government or any
officer, authorized by the Central Government. The Parliament in its
wisdom has incorporated such a provision and also created an
independent authority to review the proposal for prosecution
sanction. It is by now well settled that such procedural safeguards
has been prescribed to protect an accused from unwarranted
prosecution and trial, inasmuch as the provisions of UAP Act are
very stringent. Therefore, in the considered opinion of this court,
such provision is an additional safeguard to an accused.
37. The Hon’ble Apex Court in the case of Ashrafkhan @
Babu @ Munnekhan Pathan & Anr. Versus State of Gujarat,
reported in (2012) 11 SCC 606, while dealing with a similar
provision of Section 20(A) of the Terrorist and Disruptive Activities
(Prevention) Act (hereinafter referred to TADA) has held that the
proposition that negative words can rarely be held directory. It was
-28- W.P.(Cr.) No. 283 of 2024
and its analogous cases
laid that the plain ordinary grammatical meaning affords the best
guide to ascertain the intention of the legislature. Other methods to
understand the meaning of the statute are resorted to when the
language is ambiguous or leads to absurd result. When a content
starts with negative words, no such ambiguity exists.
38. The face of Section 45(2) of the UAP Act, the
requirement of prior approval cannot be said to be directory in
nature, as the provision itself starts with negative words, no court
shall take cognizance.
39. The law is well settled that the such sanction must be
valid sanction and a sanction under Section 45 of the UAP Act is a
condition precedent for empowering the prosecuting agency to
approach the Court, so that the Court can take cognizance of the
offences under Part-III of the UAP Act and thereafter only the court
can take the cognizance. It appears that for the reasons behind is
that the provisions of UAP Act are rigorous and the penalty provided
is more stringent compared to offences under the IPC, and as such,
the procedure of sanction has been introduced and an Independent
Review Committee has been created to safeguard a citizen from any
vexatious prosecution under UAP Act.
40. So far as Rules 3 and 4 of The Unlawful Activities
(Prevention, Recommendation and Sanction of Prosecution) Rules,
2008 are concerned, that are mandatory, as has been held by the
Hon’ble Apex Court in the case of Fuleshwar Gope (Supra), but the
same will be prospectively.
41. In the case of Judgebir Singh alias Jasbir Singh Samra
alias Jasbir & Ors. Versus National Investigation Agency,
reported in 2023 SCC OnLine SC 543, UAP Act has been considered
and it has been held in paras-46 and 47, which are as follows:-
“46. In the case of Central Bureau of
Investigation v. R.S. Pai and
Another reported in (2002) 5 SCC 82, it
was observed by this Court that “…it
cannot be held that the additional
documents cannot be produced-29- W.P.(Cr.) No. 283 of 2024
and its analogous cases
subsequently. If some mistake is
committed in not producing the relevant
documents at the time of submitting the
report or the charge-sheet, it is always
open to the investigating officer to
produce the same with the permission of
the court.” It was further observed that
“….the word “shall” used in sub-section
(5) cannot be interpreted as mandatory,
but as directory. Normally, the
documents gathered during the
investigation upon which the prosecution
wants to rely are required to be
forwarded to the Magistrate, but if there
is some omission, it would not mean that
the remaining documents cannot be
produced subsequently. Analogous
provision under Section 173(4) of the
Code of Criminal Procedure, 1898 was
considered by this Court in Narayan Rao
v. State of A.P. [AIR 1957 SC 737 : 1958
SCR 283 : 1957 Cri LJ 1320] (SCR at p.
293) and it was held that the word “shall”
occurring in sub-section (4) of Section
173 and sub- section (3) of Section 207-A
is not mandatory but only directory.
Further, the scheme of sub-section (8) of
Section 173 also makes it abundantly
clear that even after the charge-sheet is
submitted, further investigation, if called
for, is not precluded. If further
investigation is not precluded then there
is no question of not permitting the
prosecution to produce additional
documents which were gathered prior to
or subsequent to the investigation. In
such cases, there cannot be any prejudice
to the accused….”
47. From the aforesaid, it is evident that
the order of sanction passed by the
competent authority can be produced
and placed on record even after the filing
-30- W.P.(Cr.) No. 283 of 2024
and its analogous cases
of the chargesheet. It may happen that
the inordinate delay in placing the order
of sanction before the Special Court may
lead to delay in trial because the
competent court will not be able to take
cognizance of the offence without a valid
sanction on record. In such an
eventuality, at the most, it may be open
for the accused to argue that his right to
have a speedy trial could be said to have
been infringed thereby violating Article
21 of the Constitution. This may at the
most entitle the accused to pray for
regular bail on the ground of delay in
trial. But the same cannot be a ground to
pray for statutory/default bail under the
provisions of Section 167(2) of the CrPC.”
42. In the above judgment, the Hon’ble Apex Court has held
that even after filing of the chargesheet, the sanction can be
produced and in the cases in hand, after receiving the sanction only,
the learned court has proceeded.
43. Further in the case of State of Goa Versus Babu
Thomas, reported in (2005) 8 SCC 130, the Hon’ble Supreme Court
has held that seeing the gravity of the allegations leveled against the
respondent, the authority competent under the Rules concerned,
permitted to issue a fresh sanction order and proceed afresh against
the respondent from the stage of taking cognizance of the offence. In
the cases in hand, after receiving of the sanction order, the learned
court has taken the cognizance.
44. In view of the above so far as the defect in sanction is
concerned, unless the prosecution fails to establish by leading
evidence that all the materials necessary for the grant of approval or
sanction were placed before the concerned authority for due
application of mind by such authority before the grant of approval
and or sanction, cannot be said to be invalid and that cannot be
decided unless the prosecution is afforded opportunity to lead
evidence in that regard and for conclusion of the decision on the
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said point, the accused has to wait till the trial is complete and on
that ground, he cannot insist for discharge.
45. In the case of State of Bihar & Ors. Versus Rajmangal
Ram (Supra), relied by learned counsel appearing for the
respondent-State, the sanction was also granted by the Law
Department and in para-9 of the said judgment, the Hon’ble
Supreme Court has held that even assuming that the Law
Department was not competent, it was still necessary for the High
Court to reach the conclusion that a failure of justice has been
occasioned and it was held that the more appropriate stage for
reaching the said conclusion would have been only after evidence in
the cases had been led on the issue in question. The sanctioning
authority is required to apply its mind on the basis of facts, gathered
in course of investigation by the Investigating Agency and that can
be considered once the prosecution is allowed to led the evidence on
the issue in question.
46. Thus, what has been argued by the learned counsels
appearing for the petitioners in respective cases, that can be
pointed only once the trial is started and the evidence on the issue
in question is led and the same cannot be the subject matter at this
stage. There are serious allegations against all these petitioners.
Further charge can be altered at any stage under Section 216 of the
Cr.P.C.
47. In the case of Fuleshwar Gope (Supra), the Hon’ble
Supreme court in para-33, in the last part, it has been observed that
the said will be prospective.
48. The case relied by Mr. Poddar, learned counsel appearing
for the petitioners in the case of Ashraf Khan @ Babu Munne Khan
& Ors. (Supra), the trial was over and the judgment was delivered
and thereafter the Hon’ble Supreme court has come to that
conclusion.
49. The case relied by the learned counsel appearing for the
petitioners in the case of Sanjay Dutt (Supra), sanction was not the
issue, the case was related to the TADA Act and the key question
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and its analogous cases
before the Constitution Bench is the proper construction of Section
5 of the TADA Act, outlining the ingredients of offence and the scope
of defences available to the accused, the interpretation of Clause-(bb)
of Sub-Section (4) of Section 20 of the TADA Act, focusing on the
nature of the right to be released on bail in case of default in
completing the investigation, the case in hand is on other issue, as
such, this case is not helping the petitioners.
50. Further the case relied by the petitioners in the case of C.
Shobha Rani (Supra) is not in dispute, sanction has to be given
based on the same material, here the case in hand after analyzing
the materials on record, sanction has been given by the authority
concerned, as such, this case is also not helping the petitioners.
51. In view of the above facts, reasons and analysis, this
court comes to a conclusion that once the evidence will be led on the
issue in question, then only that can be the subject matter of
consideration before any higher court and the sanction is valid or
not that will be considered after evidence is led on the said issue and
that can be the subject matter of trial only. The issues in question
are answered accordingly.
52. As such, these petitions are dismissed. Pending I.A., if
any, stands dismissed.
53. Interim orders, granted earlier, in respective cases, stand
vacated.
(Sanjay Kumar Dwivedi, J.)
Jharkhand High Court, Ranchi.
Dated the 18th December, 2024.
AFR/ Amitesh/-
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