The Supreme Court of India.
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New Delhi: The Supreme Court on Monday held that when the sanction for prosecution of an accused under the Unlawful Activities (Prevention) Act is taken exception to, it has to be raised at the earliest instance and not belatedly, however, law does not preclude it from being challenged at a later stage.
"If it is raised belatedly, however, the court seized of the matter, must consider the reasons for the delay prior to delving into the merits of such objections. Belated challenges 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," a bench of Justices C T Ravikumar and Justice Sanjay Karol said.
The court also held independent review as well as application of mind with regard to sanction by the authorities concerned 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.
The court said 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 demonstrated clear intention on the part of the Legislature. A compulsion has been imposed, and for compliance with that compulsion, a timeline has been provided, the court said.
"Timelines 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.
While the legislation is aimed at curbing unlawful activities and practices detrimental to national security, 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 bench said.
The court rejected a contention by advocate Balaji Srinivasan, appearing for the appellant, Fuleshwar Gope, an associate of outlawed People’s Liberation Front of India, that the sanction was not in consonance with the statutory mandate as it was issued two years and 11 months after the incident and two years and six months after the letter of May 12, 2017.
The counsel contended clause (2) of Section 45 of the UAPA was violated as the requirement of ‘independent review’ while according sanction was not complied with.
The counsel also said the proviso to Section 22A of the UAPA exempted a person who is not in charge of and responsible for the affairs of the company, from prosecution.
The appellant allegedly 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. He was arrested by the NIA on July 13, 2020.
An was FIR lodged in Jharkhand on November 10, 2016 when PLFI chief Dinesh Gope alias Kuldeep Yadav alias Banku allegedly brought Rs.25.83 lakhs of demonetised currency to an SBI branch.
The bench, however, said since the investigation has continued in the matter, the gap cannot be termed fatal so as to render the arrest of the appellant as unlawful or illegal. In the first supplementary chargesheet, the appellant was initially a witness for the prosecution and with further investigation was made an accused thereafter, it pointed out.
The court rejected his objection to short amount of time taken in recommending and granting sanction, against him as 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 appellant also claimed that he, in fact, is an uneducated person who is a munshi and whose identity has been stolen by co-accused for the purpose, so as per Section 22A (offences by companies) of the UAPA can't be applied. To this, the bench said the court cannot at this decide this issue as it is a matter of evidence and can be examined by the trial court.