FULESHWAR GOPE v. UNION OF INDIA & ORS

Citation: Criminal Appeal No. 3923 of 2024

Court: Allahabad High Court (Lucknow Bench)

Bench: Fuleshwar Gope

Case summary

so as to ensure that there is no misuse of the right of challenge with the aim to stall or delay proceedings - these grounds cannot be allowed to act as roadblocks in trial or cannot be used as weapons in shirking away

Judgment text

SUPREME COURT OF INDIA Fuleshwar Gope v. Union of India & Ors. Criminal Appeal No. 3923 of 2024 [2024] 10 S. C. R. 315 : 2024 INSC 718 Fuleshwar Gope v. Union of India & Ors. (Criminal Appeal No. 3923 of 2024) 23 September 2024 [C. T. Ravikumar and Sanjay Karol,* JJ. ] Issue for Consideration Issue arose as to whether the validity of the Sanction Order can be challenged at any stage; whether violation of s. 45(2) of the UAPA r/w rr. 3 and 4 of the 2008 Rules, if any, vitiates the proceedings, whether violation of statutory timelines and the requirement of independent review which includes application of mind, are necessary aspects of procedure; whether the appellant's involvement were actually independent of the ones in which A-6 and other members were arrayed as accused; and whether the statutory exemption u/s. 22 A of the UAPA applies to the appellant who claims to be unaware of the affairs of the company. Headnotes† Unlawful Activities (Prevention) Act, 1967 - s.

45(2) - Cognizance of offences - Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 - rr. 3 and 4 - Time limit for making a recommendation by the Authority - Time limit for sanction of prosecution -Appellant's case that he was made an accused and a member of the larger conspiracy - Allegations against him that on directions of A 6, a terrorist and chief of People's Liberation Front of India-PLFI, the appellant formed a company, which used to directly/indirectly collect funds for the use of activities of PLFI; and that the appellant criminally conspired and formed an unlawful association with members of PLFI-A 7 and 14 - FIR against six persons alleging that Rs. 25.

83 lakhs of demonetized currency brought to the concerned Bank by A-6 - Appellant sought to quash suo motu letter in respect of the investigation; sanction letter granting sanction qua prosecution of the appellant as accused; and cognizance order under IPC and UAPA - Division Bench refused to quash the same - Challenge to: * Author 316 Held: No infirmity in the order granting sanction against the appellant - It is not incumbent upon the authority to record detailed reasons to support its conclusion and, as such, the orders challenged, cannot be faulted with on that ground - Since trial is underway and numerous witnesses already stand examined, the challenge to the validity of the sanction qua the appellant left it to be raised before the trial judge - Whether or not both A-6 and the appellant are part of the same, continuing, ongoing transactions, is to be decided on the basis of evidence adduced at trial, and not at this stage, by this Court, thus, left to the appellants to raise this issue before the trial judge - Furthermore, as regards, application of exemption u/s.

22A, this 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. [Paras 18, 41, 46, 50] Unlawful Activities (Prevention) Act, 1967 - s.

45(2) - Cognizance of offences - Validity of Sanction Order - Challenged to, at what stage: Held: Validity of sanction should be challenged at the earliest instance available, before the Trial Court - 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 - On facts, keeping in view the submission made that the trial is underway and numerous witnesses (113 out of 125) already stand examined, no finding given 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. [Paras 18, 51. 1] Unlawful Activities (Prevention) Act, 1967 - s.

45(2) - Cognizance of offences - Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 - rr. 3 and 4 - Time limit for making a recommendation by the Authority - Time limit for sanction of prosecution - Timelines in accordance with s. 45(2) r/w rr. 3 & 4 and the requirement of independent review, if necessary aspects of procedure, and non-adherence of which would vitiate proceedings under the UAPA: Fuleshwar Gope v. Union of India & Ors. Held: Timelines mentioned in rr.

3 and 4 are couched in mandatory language and, thus, 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 s.

45 of the UAPA - As regards appellant's case that the timelines were not followed, the first sanction was granted more than a year after the recommendation was moved; and that there was no independent review on the part of both recommending authority and central government, as the sanction was merely granted within a day each, the gap between the first action against A-6 and the arrest of the appellant is a result of continuing investigation, as the appellant was made an accused in the second supplementary chargesheet, arising out of the same FIR; and since the investigation continued, the gap cannot be termed fatal so as to render the arrest of the appellant as unlawful or illegal - Grant of sanction is within the stipulated time - Furthermore, it cannot be said that there was non application of mind and lack of independent review. [Paras 20, 28. 4, 41, 51. 2] Code of Criminal Procedure, 1973 - ss.

218-222 - Misjoinder of charges - Violation of CrPC - Plea 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 A-6 and other members were arrayed as accused; and that that there has been gross misuse of powers by the NIA and a violation ss. 218-224 CrPC: Held: ss. 218-222 not violated - Appellant falls under the latter category-multiple persons in the same trial (appellant is A-17 out of a total of 20 accused persons) - Joint or separate trial is a decision to be taken by the trial judge at the beginning of the trial considering the possibility of prejudice; and causing judicial delay, if any - Language of s.

223 is directory in nature, signified by the use of word 'may' - Joint trial, if held, after having considered the two factors given, cannot be said to be ipso facto prejudicial to the parties - It is alleged that A-6 who is the Chief of PLFI, extorts money from various persons and that the company A-20 of which the appellant is a director, is used to legitimise the proceeds of 318 such unlawful actions - However, appellant's case that there is no connection between the charges levied on A-6 and the transactions because of which he has been made an accused, whereas the prosecution submits that both A-6 and A-17 are part of the same, continuing, ongoing transactions - Whether or not actually the case is a question to be decided on the basis of evidence adduced at trial, and not at this stage, by this Court - Thus, it is left to the appellants to raise this issue before the trial judge, who shall, if such a question is raised, decide it promptly at the appropriate stage. [Paras 44.

3, 45, 46, 52. 1] Unlawful Activities (Prevention) Act, 1967 - s. 22A - Offences by companies - Statutory exemption u/s. 22 A - Applicability to the appellant who claims to be unaware of the affairs of the company: Held: Whether or not the exemption u/s. 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 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. [Paras 50, 52. 2] Unlawful Activities (Prevention) Act, 1967 - s. 22A - Offences by companies - Applicability of s. 22A: Held: For application of s.

22A, offence has to committed by a company; all persons who at the time of the offence were in control of, or responsible for, the company's affairs shall be deemed guilty; such person would be saved from guilt as under if they can demonstrate that such act was not in their knowledge; they had taken reasonable care to prevent such offence from taking place - s. 22A further provides that if it can be proved that the offence committed by the company was with consent; in connivance of; and attributable to neglect on the part of any promoter, director, manager, secretary or any other officer of the company, then they shall be held guilty. [Para 48] Unlawful Activities (Prevention) Act, 1967 - s. 45(2) - Cognizance of offences - Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 - Fuleshwar Gope v. Union of India & Ors. rr.

3 and 4 - Time limit for making a recommendation by the Authority - Time limit for sanction of prosecution - Timelines, whether directory or mandatory: Held: Timelines, generally speaking, as part of statutory framework are extremely essential to an effective, efficient and focused machinery of criminal investigation, prosecution and trial - All stakeholders to the smooth functioning of these procedures of law must do their part in realising such timelines - They are the essential aspects of right to speedy trial, which is enshrined u/Art. 21 of the Constitution of India.

[Para 22] 'Application of mind' - Concept of: Held: Application of mind must form part of any judicial, quasi- judicial or administrative order - To demonstrate the same, consideration of material placed before such authority must be reflected - It being a cerebral exercise, it is not within reason to set out any formula to explain what application of mind may actually mean or look like - It is to be ascertained in the facts and circumstances of each case - In the context of penal laws, 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 - Grant/non-grant of sanction is what sets in motion the machinery of strict laws such as UAPA or TADA. [Paras 25, 26] Unlawful Activities (Prevention) Act, 1967 - s.

45(2) - Cognizance of offences - Procedure for sanction provided under the UAPA: Held: Court is enjoined from taking cognizance without previous sanction either by the Central Government or the State Government, as applicable, and such sanction shall only be given after the report of the authority appointed by the Central Government or the State Government, as the case may be, has been considered - This authority is to make an independent review of the evidence gathered and make a recommendation to the government within a time bound manner - If any Court takes cognizance without prior sanction of the Government, Centre or State, the same shall be in contravention of the Act and thus, bad in law - This sanction is not a function of the Government alone and it can only be granted 320 after an independent body, albeit appointed by the Government, makes an independent review of the evidence. [Paras 28, 28.

1] Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 - rr. 3 and 4 - Time limit for making a recommendation by the Authority - Time limit for sanction of prosecution - Construction of: Held: Penal statutes are statutes to be interpreted strictly - Rules flowing from statutory power, have the effect of a statute - s. 52 of the UAPA grants power to the Central Government to make Rules for the purpose of carrying out the provisions of the Act - s. 52(2)(ee) enables the Government to prescribe the time for recommendation and grant of sanction u/s. 45 - Rules are unequivocal in both, using the word 'shall' as also providing a specfic time period for both activities, i. e.

, making recommendation and granting sanction - 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 - 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 - 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 - Timelines in such cases, serve as essential aspects of checks and balances and of course, are unquestionably important - Legislative intent is clear - Rules made by virtue of statutory powers prescribe both a mandate and a time limit - Same has to be followed - Strict adherence to the timeline mentioned in rr.

3 and 4 of the 2008, Rules to apply prospectively. [Paras 31, 32, 33] Unlawful Activities (Prevention) Act, 1967 - s. 45(2) - Cognizance of offences - Independent review - Meaning - Fuleshwar Gope v. Union of India & Ors.

Plea that since both the recommending and the granting authorities took merely a day each in performing their respective functions, the requirement of an independent review which is to be undertaken by both authorities has been left unfulfilled thereby vitiating the sanction in question: Held: Independent review would mean a contemplation or study of the material gathered by the investigating officer to conclude as to whether or not a sanction to proceed under the provisions of the UAPA ought to be granted - Similarly, at the next stage, the sanctioning authority is to mull over and critically notice both the materials gathered as also the conclusion drawn by the recommending authority, in its act of granting sanction - Independence of this authority is sine qua non, without which it would have lost its entire purpose - Plea of the appellant that short amount of time taken in recommending and granting sanction, against him which is a sign of non-application of mind and lack of independent review, cannot be accepted - There is no question, as there rightly cannot be, on the competence of either of the authorities - Thus, 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 - Thus, 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 - 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 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 - Order passed by an administrative authority is not to be tested by way of judicial review on the same anvil as a judicial or quasi-judicial order - While it is imperative for the latter to record reasons for arriving at a particular decision, for the former it is sufficient to show that the authority passing such order applied its mind to the relevant facts and materials - Thus, no infirmity in the order granting sanction against the appellant - It is not incumbent upon such authority to record detailed reasons to support its conclusion and, as such, the orders challenged, cannot be faulted with on that ground.

[Paras 37, 40, 41] 322 Words and phrases - Word independent - Meaning of: Held: Act, or evaluation is made in a way which is lone standing or which does not rely on any other factor, such as previous consideration or evaluation by another authority, to arrive at its conclusion - Independence, which is the state of being independent would also be instructive in the understanding -Review, as a concept is to be understood for it is the coming together of these two aspects which would form the understanding of the term 'independent review' - Import of the term independent review as can be understood, is a re-examination, scrutiny or critique of something which is not dependent or subject to control by any other factor or authority. [Paras 35-37] Case Law Cited A. R. Antulay v. Ramdas Sriniwas Nayak [1984] 2 SCR 914 :(1984) 2 SCC 500 - followed. State of Karnataka v. S. Subbegowda [2023] 11 SCR 19 : 2023 SCC OnLine SC 911; Nasib Singh v.

State of Punjab [2021] 13 SCR 566 : (2022) 2 SCC 89; State of U. P. v. Paras Nath Singh [2009] 8 SCR 85 : (2009) 6 SCC 372; State (NCT of Delhi) v. Navjot Sandhu[2005] Supp. 2 SCR 79 : (2005) 11 SCC 600; Union of India v. Deoki Nandan Aggarwal[1991] 3 SCR 873 : 1992 Supp (1) SCC 323; Institute of Chartered Accountants of India v. Price Waterhouse[1997] Supp. 2 SCR 267 : (1997) 6 SCC 312; Shiv Shakti Coop. Housing Society v. Swaraj Developers[2003] 3 SCR 762 : (2003) 6 SCC 659 - relied on. Pradeep Ram v. State of Jharkhand & Anr. [2019] 8 SCR 824 : (2019) 17 SCC 326; Bhushan Kumar & Anr. v. State (NCT of Delhi)[2012] 2 SCR 696 : (2012) 5 SCC 424; State of Gujarat v. Afroz Mohammed Hasanfatta[2019] 1 SCR 1104 : (2019) 20 SCC 539; Ashraf Khan v. State of Gujarat(2012) 11 SCC 606; State of Gujarat v. Anwar Osman Sumbhaniya [2019] 2 SCR 749 : (2019) 18 SCC 524; Anirudhsinhji Karansinhji Jadeja v. State of Gujarat [1995] Supp. 2 SCR 637 :(1995) 5 SCC 302; Rambhai Nathabhai Gadhvi v.

State of Gujarat[1997] Supp. 3 SCR 356 : (1997) 7 SCC 744; Seeni Nainar Mohammed v. State [2017] 3 SCR 312 : (2017) 13 SCC 685; Jamiruddin Ansari v. CBI[2009] 7 SCR 759 : (2009) 6 SCC 316; Peoples' Union for Civil Liberties v. Union of India [2004] 1 SCR 232 : (2004) 9 SCC 580; Sanjay Dutt v. State through CBI[1994] Supp. 3 SCR Fuleshwar Gope v. Union of India & Ors. 263 : (1994) 5 SCC 410; Arup Bhuyan v. State of Assam[2023] 8 SCR 496 : (2023) 8 SCC 745; Central Bureau of Investigation v. Ashok Kumar Aggarwal (2014) 14 SCC 295; Parkash Singh Badal v. State of Punjab [2006] Supp. 10 SCR 197 : (2007) 1 SCC 1; Dinesh Kumar v. Airport Authority of India[2011] 13 SCR 260 : (2012) 1 SCC 532 Central Bureau of Investigation & Ors. v. Pramila Virendra Kumar Agarwal (2020) 17 SCC 664; P. K. Pradhan v. State of Sikkim[2001] 3 SCR 1119:(2001) 6 SCC 704; Rangku Dutta v. State of Assam[2011] 8 SCR 639 : (2011) 6 SCC 358; Hussein Ghadially v.

State of Gujarat [2014] 9 SCR 364 : (2014) 8 SCC 425; Mahesh Kariman Tirki v. State of Maharashtra, SLP (Crl. ) Nos. 11072-11073/2022; Binod Ganjhu v. Union of India, W. P(Crl) 308 of 2022; State of Rajasthan v. Mohinuddin Jamal Alvi (2016) 12 SCC 608; Roopesh v. State of Kerala, 2022 SCC OnLine Ker 1372; Vijay Rajmohan v. Central Bureau of Investigation (Anti-Corruption Branch)[2022] 19 SCR 563 : (2023) 1 SCC 329; Standard Chartered Bank v. Directorate of Enforcement [2005] Supp. 1 SCR 49 : (2005) 4 SCC 530; State of Jharkhand v. Ambay Cements[2004] Supp. 6 SCR 125 : (2005) 1 SCC 368; Manjit Singh v. CBI [2011] 1 SCR 997 :(2011) 11 SCC 578; State of T. N. v. Sivarasan [1996] Supp. 8 SCR 243 : (1997) 1 SCC 682; Priya Indoria v. State of Karnataka[2023] 15 SCR 525 : (2024) 4 SCC 749; State of U. P. v. Manbodhan Lal Srivastava [1958] 1 SCR 533 : 1957 SCC OnLine SC 4; State of U. P. v. Babu Ram Upadhya [1961] 2 SCR 679 : 1960 SCC OnLine SC 5; Bachahan Devi v.

Nagar Nigam, Gorakhpur [2008] 2 SCR 424 : (2008) 12 SCC 372; Vijay Dhanuka v. Najima Mamtaj [2014] 4 SCR 171 :(2014) 14 SCC 638; Union of India v. A. K. Pandey (2009) 10 SCC 552; C. S. Krishnamurthy v. State of Karnataka [2005] 2 SCR 1163 : (2005) 4 SCC 81; State of M. P. v. Harishankar Bhagwan Prasad Tripathi[2010] 9 SCR 1148 : (2010) 8 SCC 655; State of Maharashtra v. Mahesh G. Jain [2013] 3 SCR 850 : (2013) 8 SCC 119; Judgebir Singh v. National Investigation Agency[2023] 6 SCR 1 : 2023 SCC OnLine SC 543; State of Punjab v. Mohd. Iqbal Bhatti [2009] 11 SCR 790 : (2009) 17 SCC 92; State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222; Superintendent of Police (CBI) v. Deepak Chowdhary [1995] Supp. 2 SCR 818 : (1995) 6 SCC 225; Mohd. Iqbal M. Shaikh v. State of Maharashtra [1998] 2 SCR 734 : (1998) 4 SCC 494; Balbir v. State of Haryana[1999] Supp. 4 SCR 120 : (2000) 1 SCC 285; R. Dineshkumar v. State[2015] 5 SCR 605 : 324 (2015) 7 SCC 497; S. M. S. Pharmaceuticals Ltd. v.

Neeta Bhalla [2007] 2 SCR 862 : (2005) 8 SCC 89; Susela Padmavathy Amma v. Bharti Airtel Ltd[2024] 3 SCR 647 : 2024 SCC OnLine SC 311; N. Rangachari v. BSNL[2007] 5 SCR 329 : (2007) 5 SCC 108; Central Bank of India v. Asian Global Ltd. [2010] 7 SCR 694 : (2010) 11 SCC 203; Gunmala Sales (P) Ltd. v. Anu Mehta [2014] 10 SCR 1117 : (2015) 1 SCC 103; Rajesh Viren Shah v. Redington India Ltd. (2024) 4 SCC 305 - referred to. Montreal Street Railway Company v. Normandin, LR (1917) AC 170 - referred to. Books and Periodicals Cited Maxwell in Interpretation of Statutes (11th Edn. ); Cambridge dictionary; Merriam Webster dictionary; Black's Law Dictionary; Burton's Legal Thesaurus Third Edition Page 473. List of Acts Unlawful Activities (Prevention) Act, 1967; Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008; Criminal Law Amendment Act, 1908; Code of Criminal Procedure, 1973; National Investigation Agency Act, 2008.

List of Keywords Validity of Sanction Order; Violation of statutory timelines; Requirement of independent review; Application of mind; Statutory exemption u/s. 22 A of the UAPA; Time limit for making recommendation by Authority; Time limit for sanction of prosecution; Terrorist and chief of People's Liberation Front of India-PLFI; Activities of PLFI; Unlawful association; Demonetized currency; Quash suo motu letter; Investigation; Sanction letter; Penal legislation; Strict construction; Grant of sanction; Non- application of mind; Violation of CrPC; Timelines, whether directory or mandatory; Procedure for sanction under the UAPA; Strict adherence to timeline. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3923 of 2024 From the Judgment and Order dated 21. 03. 2023 of the High Court of Jharkhand at Ranchi in WPCR No. 443 of 2022 Fuleshwar Gope v. Union of India & Ors. Appearances for Parties Balaji Srinivasan, Rohan Dewan, Vishwaditya Sharma, Ms.

Harsha Tripathi, Advs. for the Appellant. Vikramjeet Banerjee, A. S. G. , Ms. Swarupama Chaturvedi, Sr. Adv. , Ms. Rukhmini Bobde, Raghav Sharma, Madhav Singhal, Ms. Zeenat Malick, Arvind Kumar Sharma, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment Sanjay Karol, J. Leave granted. 2. Impugned in this appeal by special leave is a judgment of the High Court of Jharkhand at Ranchi dated 21st March, 2023 in W. P. (Crl. ) No. 443 of 2022, whereby the learned Division Bench refused to quash - (a) Suo motu letter No. F. No. 11011/51/2017/IS-IV dated 16th January, 2018 in respect of the investigation of Bero P. S. Case No. 67/2016 dated 10th November, 2016; (b) Sanction letter No. 11011/51/2017/NIA dated 22nd July, 2020 granting sanction qua prosecution of the present appellant as accused No. 17 in R. C. -02/2018/NIA/DLI; and (c) Cognizance order dated 25th July, 2020 u/s 120B of the Indian Penal Code r/w Section 17, 18, 21 & 22 of U. A.

(P) Act, 1967, u/S 17(i) & (ii) of CLA Act, 1908 and charges framed on 16th March, 2021 pending trial before the Court of learned Special Judge, NIA, Ranchi; It is to be noted that initially quashing was also sought in respect of sanction vide letter No. 06/Avi-01/21/2017-2637 dated 12th May, 2017 granted by the Principal Secretary, Department of Home, Prisons & Disaster Management, Ranchi. However, paragraph 4 of the impugned judgment records that this specific prayer was not pressed before it. BACKGROUND FACTS 3. The facts necessary for the disposal of the present appeal, shorn of unnecessary detail are :- 326 3. 1 It is alleged that the appellant, Fuleshwar Gope1 is an associate of the People's Liberation Front of India2 and is acquainted with the facts that Dinesh Gope @ Kuldeep Yadav @ Banku (A-6) is a terrorist and the chief of PLFI who collects money through extortion.

He is 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). 3. 2 On the direction of A-6, it is alleged that the appellant formed a company M/s. Shiv Shakti Samridhi Infra Pvt. Ltd. (A-20) along with A-14 which was more in the nature of a partnership. This 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. 3. 3 On 10th November, 2016, FIR No. 67 of 2016 at Bero, Jharkhand was registered against six persons under Section 212, 213/34, 414 of the Indian Penal Code, 1860 and Sections 13, 17, 40 of the Unlawful Activities (Prevention) Act, 19673 and Section 17 of the Criminal Law Amendment Act, 1908 on the allegation that Rs. 25. 83 lakhs of demonetized currency was brought to the concerned branch of the State Bank of India by A-6. 3.

4 On 9th January, 2017, chargesheet No. 01/2017 was filed and the learned Judicial Magistrate 1st Class took cognizance thereof. On 18th March, 2017, Deputy Commissioner, Ranchi sought sanction to prosecute which was granted by the Principal Secretary, Department of Home, Prisons & Disaster Management. However, subsequently, the Ministry of Home Affairs,4 Government of India issued a transfer order in respect thereto on 16th January, 2018 and as such the FIR was re- registered as a case under the National Investigation Agency. 5 MHA further initiated suo-motu sanction on 16th October, 2019 against twelve accused persons, A-1 to A-12. 1 Hereinafter referred to as A-17 2 Abbreviated as 'PLFI' 3 Abbreviated as 'UAPA' 4 Abbreviated as 'MHA' 5 Abbreviated as "NIA" Fuleshwar Gope v. Union of India & Ors. 3. 5 On 21st October, 2019, a supplementary chargesheet was filed by NIA wherein the Appellant was named as a witness for the Prosecution, as PW-65.

On 5th November, 2019, Special Judge NIA took cognizance of the same. 3. 6 The Appellant was subsequently arrested on 13th July, 2020. On 22nd July, 2020, suo-motu sanction was issued against an additional seven persons (A-13 to A-20), the Appellant is A-17. A second Supplementary Chargesheet was filed the next day i. e. 23rd July, 2020 under Sections 17, 18, 21, and 22C of the UAPA. 3. 7 On 14th November, 2022, the Appellant filed a Writ Petition before the High Court seeking for quashing of the Sanction Order dated 22nd July, 2020, taking of the cognizance of the second Supplementary Chargesheet vide an order 25th July, 2020 and framing of charges by order dated 16th March, 2021. 3. 8 It is in this backdrop, that the judgment impugned was passed. IMPUGNED JUDGMENT 4.

Before the High Court it was contended primarily that Sections 6(2) & (3) of the National Investigation Agency Act, 20086 were not complied with and thereby the statutory timelines mentioned therein were completely ignored. Further, it was argued that Sections 45(1) & (2) of the UAPA were not adhered to. 5. The High Court framed the following issues for its consideration: "8. ... (i) Whether the Central Government has got suo-moto power to handover the investigation to the N. I. A. once the investigation has been completed by the District Police. (ii) Whether the Order of Sanction dated 22. 07. 2020 issued by the Under Secretary to the Government of India in exercise of power conferred under Section 45(2) of U. A. (P) Act, 1967 suffers from any illegality. (iii) Whether the order taking cognizance against the petitioner under Section 120B I. P. C read with Sections 17, 6 Hereinafter 'NIA, 2008' 328 18, 21 & 22C of U. A. (P) Act, 1967 and Section 17(i) & (ii) of C. L.

A Act, 1908 suffers from any infirmity. " 5. 1 The Court in deciding the first issue placed reliance on Pradeep Ram v. State of Jharkhand & Anr. ,7 and more particularly paragraph 49 thereof, to hold that there is no lack of jurisdiction on the part of NIA to carry out further investigation and submit the supplementary report(s). 5. 2 The second issue concerned the legality and propriety of sanction which was challenged on the ground that Rule 3 of the Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 20088 was not followed. The Court referred to the contents of the sanction order dated 22nd July, 2020, impugned before it, and then concluded that the timeline stipulated in Rule 3 referred to supra, has been strictly adhered to. 5. 3 The third issue is as to whether the cognizance order is afflicted by non-application of mind. The Court considered the judgment in Bhushan Kumar & Anr. v. State (NCT of Delhi)9 and State of Gujarat v.

Afroz Mohammed Hasanfatta10 to examine the power of the Magistrate at the stage of issuing process or summons. It was finally concluded that the approach of the learned Special Judge in dealing with the material placed before them by way of case diary, statements of various prosecution witnesses, other documents and material objects, requires no interference. 6. Aggrieved by the above findings of the High Court, the appellant is before this Court. ARGUMENTS ADVANCED 7. We have heard Mr. Balaji Srinivasan, learned Advocate-on-Record for the appellant and Mr. Vikramjit Banerjee, learned Additional Solicitor General of India and Ms. Swarupama Chaturvedi, learned Senior Counsel for the Union of India. 7 [2019] 8 SCR 824 : (2019) 17 SCC 326 8 Hereinafter '2008 Rules' 9 [2012] 2 SCR 696 : (2012) 5 SCC 424 10 [2019] 1 SCR 1104 : (2019) 20 SCC 539 Fuleshwar Gope v. Union of India & Ors. 8. In assailing the impugned judgment, the appellants have advanced the following contentions. 8.

1 Section 45 of UAPA read with Rules 3 and 4 of the 2008 Rules provided for a detailed procedure with respect to grant of sanction along with a timeline within which the same is to be granted. The impugned sanction is not in consonance with the statutory mandate as the same was issued 2 years and 11 months after the incident and 2 years and 6 months after the letter dated 12th May, 2017. 8. 2 Clause (2) of Section 45 of the UAPA was violated as the requirement of 'independent review' while according sanction was not complied with. It is contended that the sanction order was passed mechanically without supplying any reasons or application of mind. The orders are stereotypical and standard. It is submitted that Section 45 requires independent scrutiny and application of mind at each stage - by requisitioning authority; by an independent agency and then by the sanctioning authority. Since, in the present facts the same was not complied with, sanction orders are liable to be quashed. 8.

3 Validity of sanction is a question that can be raised at any stage of proceedings. There are instances of this Court setting aside convictions after completion of trial and even quashing entire proceedings upon the filing of bail application, before trial on the ground of invalidity of sanction. In furtherance of this submission, various judgments have been referred to. Ashraf Khan v. State of Gujarat;11State of Gujarat v. Anwar Osman Sumbhaniya;12Anirudhsinhji Karansinhji Jadeja v. State of Gujarat;13Rambhai Nathabhai Gadhvi v. State of Gujarat;14 Seeni Nainar Mohammed v. State;15 and Jamiruddin Ansari v. CBI. 16 11 [2012] 12 SCR 1033 : (2012) 11 SCC 606 12 [2019] 2 SCR 749 : (2019) 18 SCC 524 13 [1995] Supp. 2 SCR 637 : (1995) 5 SCC 302 14 [1997] Supp. 3 SCR 356 : (1997) 7 SCC 744 15 [2017] 3 SCR 312 : (2017) 13 SCC 685 16 [2009] 7 SCR 759 : (2009) 6 SCC 316 330 8.

4 Both the requisitioning and sanctioning authorities have not considered that mens rea is absent which, as is well established, is a requisite to constitute a criminal offence unless explicitly excluded. Reference is made to Peoples' Union for Civil Liberties v. Union of India17and Sanjay Dutt v. State through CBI. 18 In referring to latter judgment, reliance is placed on the holding that if a reasonable interpretation exists which permits the avoidance of penalty, Courts are bound to take that approach. 8. 5 The appellant was not made an accused in the first module, i. e. , FIR No. 67/2016 nor in the second module (initiated by an alleged hawala transaction which took place on 22nd May 2018) and sanction in respect thereof was granted by the Central Government on 16th October, 2019. He was, in fact, made an accused in an independent transaction involving A-20 regarding which the sanction order (impugned herein) was issued on 22nd July, 2020. 8.

6 The proviso to Section 22A exempts a person who is not in charge of and responsible for the affairs of the company, from prosecution. The appellant contends that he has wrongly been roped into the proceedings even when he is a Munshi working as a daily wager. He is illiterate and does not understand business transactions. A-6 took undue advantage of his situation, once A-7 and A-14 stole his identity. 8. 7 No particular role has been ascribed to the appellant. This case by the NIA has been thrust upon him given, (a) he is a director in the company which is A-20; (b) the said company allegedly received funds that were to be used by PLFI; (c) he hails from the same locality and is a distant acquaintance of Dinesh Gope who is the leader of the PLFI. 9. The stand of the respondent - Union of India, as can be understood from the materials on record and the written submissions, is that - 9.

1 The sanction order that has led to the present proceedings has been granted after following due process. The NIA recommended prosecution of the accused persons including 17 [2004] 1 SCR 232 : (2004) 9 SCC 580 18 [1994] Supp. 3 SCR 263 : (1994) 5 SCC 410 Fuleshwar Gope v. Union of India & Ors. the present appellant vide its letter dated 14th July, 2020. The Central Government, in accordance with Section 45(2) of the UAPA referred the investigation report to the authority by letter dated 15th July, 2020, comprising two members for the purpose of independent review. The authority by its letter dated 16th July, 2020 forwarded its report to the Ministry within the stipulated time period under Rule 3 of 2008 Rules. In other words, there is no violation of the Rules. 9. 2 The impugned sanction order has been passed considering all the relevant materials on record, including the recommendation of the authority constituted under Section 45(2) of the UAPA.

The authority consisted of a retired High Court Judge and the retired Law Secretary. 9. 3 Independent review took place at all relevant stages pursuant to which Central Government accorded sanction. Merely because the sanction was granted within one day of the recommendation, it cannot be said that there was non-application of mind. 9. 4 Second and Third Module as explained in the supplementary chargesheets are not independent and separate transactions from that initiated in the FIR, but rather, are a part of the same continuing transaction undertaken by the accused persons to channel the Proceeds of Terrorism. The NIA on being entrusted with the investigation, had investigated the same and submitted the two supplementary chargesheets. 9. 5 The appellant is an active member of a terrorist gang and a close associate of Dinesh Gope (A-6) and was involved in collecting and channelizing funds by forming companies.

A-20 of which the Appellant/A-17 was a director, served as a front to launder proceeds of terrorism. The claim of the appellant that A-7 & A-14 stole his identity is unsustainable and quashing cannot be placed on such a vague plea. 9. 6 The trial is at a very advanced stage, and as such, no discretion be exercised in quashing the criminal proceedings. 10. At the outset, we clarify that despite the last of the submissions made by the learned Additional Solicitor General, the Appellant invited findings on his submissions. Hence, we proceed to decide the issue on merits. QUESTIONS FOR CONSIDERATION BEFORE THIS COURT 11. Having considered the factual matrix and the submissions advanced by the learned counsel for the parties the following questions arise for our consideration:- (i) Whether the Validity of the Sanction Order can be challenged at any stage? (ii) 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? (iii) 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? (iv) 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? CONSIDERATION (a) UAPA : An Introduction 12.

The preamble of theActreads as under:- "An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations [,and for dealing with terrorist activities,] and for matters connected therewith. " 13. A Bench of Three Judges of this Court (of which both of us were members) considered the objective of the Act in the following terms in Arup Bhuyan v. State of Assam19:- 19 [2023] 8 SCR 496 : (2023) 8 SCC 745 Fuleshwar Gope v. Union of India & Ors. "85. The main objective of the UAPA is to make powers available for dealing with activities directed against the integrity and sovereignty of India. It is also required to be noted that pursuant to the recommendation of the Committee on National Integration and Regionalisation appointed by the National Integration Council Act on whose recommendation the Constitution (Sixteenth Amendment) Act, 1963 was enacted, UAPA has been enacted.

It appears that the National Integration Council appointed a Committee on National Integration and Regionalisation to look into, inter alia, the aspect of putting reasonable restrictions in the interests of sovereignty and integrity of India and thereafter the UAPA has been enacted. Therefore, the UAPA has been enacted to make powers available for dealing with the activities directed against integrity and sovereignty of India. 86. Now let us consider the Preamble to the UAPA, 1967. As per Preamble, the UAPA has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Therefore the aim and object of enactment of the UAPA is also to provide for more effective prevention of certain unlawful activities.

That is why and to achieve the said object and purpose of effective prevention of certain unlawful activities Parliament in its wisdom has provided that where an association is declared unlawful by a notification issued under Section 3, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to 2 years, and shall also be liable to fine. Therefore, Parliament in its wisdom had thought it fit that once an association is declared unlawful after following due procedure as required under Section 3 and subject to the approval by the Tribunal still a person continues to be a member of such association is liable to be punished/ penalised. " (Emphasis supplied) 334 (b) Relevant Statutory Provisions 14. At this juncture, we may refer to the applicable statute and rules. 14. 1 The requisite clauses of Section 2 (definitions clause of the Act) are as under:- "2. Definitions.

-(1) In this Act, unless the context otherwise requires,- ... ... ... (e) "Designated Authority" means such officer of the Central Government not below the rank of Joint Secretary to that Government, or such officer of the State Government not below the rank of Secretary to that Government, as the case may be, as may be specified by the Central Government or the State Government, by notification published in the Official Gazette; ... ... ... (ec) "person" includes-- (i) an individual, (ii) a company, (iii) a firm, (iv) an organisation or an association of persons or a body of individuals, whether incorporated or not, (v) every artificial juridical person, not falling within any of the preceding sub- clauses, and (vi) any agency, office or branch owned or controlled by any person falling within any of the preceding sub-clauses;] (f) "prescribed" means prescribed by rules made under this Act; ... ... ...

(g) "proceeds of terrorism" means,-- (i) all kinds of properties which have been derived or obtained from commission of any terrorist act or have been acquired through funds traceable to a terrorist act, irrespective of person in whose name such proceeds are standing or in whose possession they are found; or (ii) any property which is being used, or is intended to be used, for a terrorist act or for the purpose of an individual terrorist or a terrorist gang or a terrorist Fuleshwar Gope v. Union of India & Ors. organisation. Explanation. --For the purposes of this Act, it is hereby declared that the expression "proceeds of terrorism" includes any property intended to be used for terrorism;" 14. 2 Section 45 of the Act is extracted below for ready reference. "45. Cognizance of offences.

-- [(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 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 where 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. " (Emphasis supplied) 14.

3 Rules 3 & 4 of the 2008 Rules read as follows:- "3. Time limit for making a recommendation by the Authority. - The Authority shall, under sub-section (2) of Section 45 of the Act, make its report containing the recommendations to the Central Government [or, as the case may be, the State Government] within seven working days of the receipt of the evidence gathered by the investigating officer under the Code. 336 4. Time limit for sanction of prosecution. -The Central Government [or, as the case may be, the State Government] shall, under sub-section (2) of Section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority. " (Emphasis supplied) ISSUE No. 1- Challenge to validity of sanction - at what stage? 15. Now, we proceed to examine the first question before this Court. In order to do so it is essential to extract the relevant portion of the sanction order:- "5.

And whereas, the Central Government in terms of the provisions of Section 45(2) of the Unlawful Activities (Prevention) Act, 1967 (as amended) and the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 referred the above mentioned Investigation Report vide this Ministry's letter of even no. dated 15th July, 2020 to the Authority comprising of two members namely Justice Dr. Satish Chandra (Retired) and Dr TK Vishwanathan, Law Secretary (Retired), constituted vide this Ministry's order No. 11034/1/2009/IS-IV dated 03. 07. 2015 for making an independent review of the evidence gathered in the course of investigation (term of the Authority extended till 31. 07. 2021 vide this Ministry's order dated 12. 06. 2020); 6.

And whereas, the Authority vide letter dated 16th July, 2020 forwarded its report to this Ministry within the time limit as prescribed in rule Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 and, after being satisfied with the material available on record and facts and circumstances therein, recommended for sanction for prosecution against the above mentioned accused persons/entities under the relevant sections of law including the Unlawful Activities (Prevention) Act, 1967; 7. And now, therefore, the Central Government, after carefully examining the material placed on record and the recommendations of the Authority, is satisfied that a Fuleshwar Gope v. Union of India & Ors. prima facie case is made out against the accused persons/ entities under the relevant sections of law and hereby accords sanction for prosecution under section 45(1) of the Unlawful Activities (Prevention) Act, 1967...

" BY ORDER AND IN THE NAME OF THE PRESIDENT OF INDIA Sd/- (Dharmendar Kumar) Under Secretary to the Government of India" (Emphasis supplied) 16. The question of validity of sanction being challenged, and at what stage it may be permissible, has engaged this Court on few previous occasions, albeit in context of different statutes. It shall be useful to refer to them. 16. 1 In Central Bureau of Investigation v. Ashok Kumar Aggarwal 20this Court noted the importance of the process of grant of sanction. It has been termed "not an acrimonious exercise but a solemn and sacrosanct act" in the context of the Prevention of Corruption Act, 1988. 21 The Court summarised the essentials for validity of prosecution as under:- "16. In view of the above, the legal propositions can be summarised as under: 16. 1.

The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16. 2. The authority itself has to do complete and conscious scrutiny of the whole record so produced 20 [2013] 14 SCR 983 : (2014) 14 SCC 295 21 Hereinafter, 'PC Act' 338 by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. 16. 3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 16. 4.

The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16. 5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law. " (Emphasis supplied) 16. 2 In Parkash Singh Badal v. State of Punjab,22 this Court held that an authority, which is the sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is to be done at the stage of framing of charge. What the law requires is that materials must be placed before the sanctioning authority so as to enable the application of mind in arriving at a decision. 16. 3 In Dinesh Kumar v. Airport Authority of India,23Lodha, J.

(as he then was) observed: "10. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an 22 [2006] Supp. 10 SCR 197 : (2007) 1 SCC 1 23 [2011] 13 SCR 260: (2012) 1 SCC 532 Fuleshwar Gope v. Union of India & Ors. authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind--a category carved out by this Court in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , the challenge to which can always be raised in the course of trial. " 16. 4 In Central Bureau of Investigation & Ors. v.

Pramila Virendra Kumar Agarwal,24 while referring to Dinesh Kumar (supra), this Court reiterated the distinction between absence of sanction and the alleged invalidity of sanction on account of non-application of mind. It was held that absence as in issue can be raised at the threshold, however, invalidity, as in issue can only be raised at trial. 16. 5 A Bench of three learned Judges in P. K. Pradhan v. State of Sikkim25 discussed the application of Section 197 of the Code of Criminal Procedure, 1973. 26 Having referred to a host of precedents, it was concluded that: "15. ... It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well.

But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In 24 (2020) 17 SCC 664 25 [2001] 3 SCR 1119 : (2001) 6 SCC 704 26 Hereinafter 'CrPC' 340 such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. " (Emphasis supplied) 16. 6 In recent past, this court, in State of Karnataka v. S.

Subbegowda,27 while addressing the question of sanction and its validity in the context of PC Act underscored that challenge to sanction should be brought at the earliest stage possible and held that: "10. ... It is also well settled proposition of law that the question with regard to the validity of such sanction should be raised at the earliest stage of the proceedings, however could be raised at the subsequent stage of the trial also. In our opinion, the stages of proceedings at which an accused could raise the issue with regard to the validity of the sanction would be the stage when the Court takes cognizance of the offence, the stage when the charge is to be framed by the Court or at the stage when the trial is complete i. e. , at the stage of final arguments in the trial.

Such issue of course, could be raised before the Court in appeal, revision or confirmation, however the powers of such court would be subject to sub-section (3) and sub-section (4) of Section 19 of the said Act. It is also significant to note that the competence of the court trying the accused also would be dependent upon the existence of the validity of sanction, and therefore it is always desirable to raise the issue of validity of sanction at the earliest point of time. It cannot be gainsaid that in case the sanction is found to be invalid, the trial court can discharge the accused and relegate the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with the law. " (Emphasis supplied) 27 [2023] 11 SCR 19 : 2023 SCC OnLine SC 911 Fuleshwar Gope v. Union of India & Ors. 17.

The afore-cited authorities point to only one conclusion which is that sanction, though should be challenged at the earliest possible opportunity, it can be challenged at a later stage as well. These judgments, although not specifically in the context of laws such as UAPA, posit a generally acceptable rule that a right available to the accused, which may provide an opportunity to establish innocence, should not be foreclosed by operation of law, unless specifically provided within the statutory text. At the same time, challenging validity of sanction cannot and should not be a weapon to slow down or stall otherwise valid prosecution. Other legislations such as the CrPC provide mechanisms for the sanction and subsequent actions to be saved from being invalidated due to any irregularity etc. Section 465 CrPC provides for the possibility that a sanction granted under Section 197 CrPC can be saved by its operation.

Similarly, a sanction under the PC Act, if found that there was any error, omission or irregularity would not be vitiated unless the same has resulted in failure of justice. 18. The UAPA does not provide for any such saving of the sanction. This implies that, in the wisdom of the legislature, the inbuilt mechanism of the Act of having two authorities apply their mind to the grant of a sanction, is sufficient. This emphasizes the role and sanctity of the operation to be carried out by both these authorities. In order to challenge the grant of sanction as invalid, the grounds that can be urged are that (1) all the relevant material was not placed before the authority; (2) the authority has not applied its mind to the said material; and (3) insufficiency of material. This list is only illustrative and not exhaustive. The common thread that runs through the three grounds of challenge above is that the party putting forward this challenge has to lead evidence to such effect.

That, needless to say, can only be done before the Trial Court. In that view of the matter, 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. [See: S.

Subbegowda(supra)] In the attending facts and circumstances of the present case, keeping in view the submission made at the bar that the trial is underway 342 and numerous witnesses (113 out of 125) already stand examined, we refrain from returning any finding on the challenge to the validity of the sanction qua the present appellant and leave it to be raised before the Trial Judge, who shall, if such a question is raised decide, it promptly. ISSUE No. 2 : 19. The next issue that we must consider is whether 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 procedure, non-adherence of which would vitiate proceedings.

As already reproduced above, the rules provide a seven day period within which the concerned authority is to make its recommendation on the basis of materials gathered by the investigating officer and a further seven days period for the government to grant sanction for prosecution, having considered the report of the authority. 20. The ins and outs of the Appellant's contention is that the said timelines were not followed and, in fact, the first sanction was granted more than a year after the recommendation was moved. This contention ties into another submission that there was no independent review on the part of both recommending authority and central government, as the sanction was merely granted within a day each. Timelines, whether directory or mandatory? 21. Let us now consider one of the primary arguments of the appellants, i. e. , non-following of the statutory timelines. 22.

Timelines, generally speaking, as part of statutory framework are extremely essential to an effective, efficient and focused machinery of criminal investigation, prosecution and trial. It cannot be gainsaid that all stakeholders to the smooth functioning of these procedures of law must do their part in realising such timelines. They are the essential aspects of right to speedy trial, which is enshrined under Article 21 of the Constitution of India. 23. The appellant's objections regarding timelines is two-fold. One, that there is a large gap between the first sanction and his own arrest, given that he is allegedly part of the same continuing transaction according to the respondent union, and two, that since the authority despite Fuleshwar Gope v. Union of India & Ors.

having been granted a seven day period to consider the materials gathered by the investigating officers and make their recommendation, did so within barely a day, and that to in a manner which could be termed mechanical, thereby afflicting the recommendations from the vice of non-application of mind. 24. The first objection appears to us, to be superficial at best. In order to understand this objection some important dates must be referred to: S. No. Details Date 1. First Information Report (F. I. R. ) 10th November 2016 2. Chargesheet 9th January 2017 (It is noted that investigation continues against A-6) 3. Sanction against A-6 16th October 2019 4. First Supplementary Chargesheet 21st October 2019 (A-6 is named herein; A-17 is brought in as a prosecution witness; Investigation continues still further) 5. Arrest of A-17 13th July 2020 6. Sanction against A-17 22nd July 2020 7.

Second Supplementary Chargesheet 23rd July 2020 (A-17 is named herein) The gap between the first action against A-6 and the arrest of the appellant is a result of continuing investigation, as evidenced by the fact that the appellant was made an accused in the second supplementary chargesheet, arising out of the same FIR under which A-6 was initially named an accused. 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. 25. In order to consider the merits of the second objection, 'application of mind' as a concept must be understood. It is trite in law that application of mind must form part of any judicial, quasi-judicial or administrative order.

To demonstrate the same, consideration of material placed 344 before such authority must be reflected. At the same time, it being a cerebral exercise, it is not within reason to set out any formula to explain what application of mind may actually mean or look like. It is to be ascertained in the facts and circumstances of each case. 26. In the context of penal laws, 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.

28 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. 27. 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 general principle, when the provision is couched negatively has been noticed by this court in Rangku Dutta v. State of Assam29 in the following terms: "18. It is obvious that Section 20-A(1) is a mandatory requirement of law.

First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression "No" after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command. Reference in this connection can be made to G. P. Singh's Principles of Statutory Interpretation, 12th Edn. , at pp. 404-05, the learned author has stated: "... As stated by Crawford: 'Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides 28 Hereinafter referred as 'TADA' 29 [2011] 8 SCR 639 : (2011) 6 SCC 358 Fuleshwar Gope v. Union of India & Ors. no penalty for disobedience. ' As observed by Subbarao, J. : 'Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative.

' Section 80 and Section 87-B of the Code of Civil Procedure, 1908; Section 77 of the Railways Act, 1890; Section 15 of the Bombay Rent Act, 1947; Section 213 of the Succession Act, 1925; Section 5-A of the Prevention of Corruption Act, 1947; Section 7 of the Stamp Act, 1899; Section 108 of the Companies Act, 1956; Section 20(1) of the Prevention of Food Adulteration Act, 1954; Section 55 of the Wild Life (Protection) Act, 1972; the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 (as amended in 1956); Section 10-A of the Medical Council Act, 1956 (as amended in 1993), and similar other provisions have therefore, been construed as mandatory. A provision requiring 'not less than three months' notice' is also for the same reason mandatory. " We are in respectful agreement with the aforesaid statement of law made by the learned author.

" For instance, under the TADA, it has been held that if the sanctioning authority as mentioned under Section 20-A is not the one who granted sanction and instead it was a higher authority, even then the said sanction would be illegal. Reference in this regard may be made to Hussein Ghadially v. State of Gujarat30 and State of Rajasthan v. Mohinuddin Jamal Alvi. 31 28. Now turning to the procedure for sanction provided under the UAPA, we find that a Court is enjoined from taking cognizance without previous sanction either by the Central Government or the State Government, as applicable, and such sanction shall only be given after the report of the authority appointed by the Central Government or the State Government, as the case may be, has been considered. 30 [2014] 9 SCR 364 : (2014) 8 SCC 425 31 (2016) 12 SCC 608 346 This authority is to make an independent review of the evidence gathered and make a recommendation to the government within a time bound manner. 28.

1 What flows from the above description of Section 45 is that if any Court takes cognizance without prior sanction of the Government, Centre or State, the same shall be in contravention of the Act and therefore bad in law. This sanction is not a function of the Government alone and it can only be granted after an independent body, albeit appointed by the Government, makes an independent review of the evidence. 28. 2 The fact that sanction has been granted is not in dispute. What is disputed by the appellant is in which the manner the same has been granted. According to the case put up by him, the authority's recommendation, and immediately thereafter the Government's grant of sanction is evidence of non-application of mind and stereotypical or 'cyclostyle' orders. 28.

3 Although we have taken note of the facts leading up the present appeal, for immediate reference we may recall here that the NIA vide its letter dated 14th July 2020 recommended prosecution for further seven persons (A-13 to A-20); the Ministry vide letter dated 15th July 2020 forwarded the investigation report to the authority; the authority, the next day, i. e. , 16th July 2020, recommended sanction for prosecution against the seven persons. 28. 4 Rules 3 & 4 of the 2008 Rules, reproduced supra, grant the authority as also the Government a week's time each to recommend and then grant sanction. On the face of it, the present grant of sanction is within the stipulated time. However, as is submitted by the appellant, is the fact that the recommendation, consideration and grant of sanction took place within three days enough to vitiate the prosecution to its entirety? 28.

5 One week's time, given to both the authorities is to enable them to independently evaluate, first the materials placed on record then recommend the grant of sanction; and second, to evaluate the material and the recommendation so made above, to finally ink the order of sanction. If the time so granted Fuleshwar Gope v. Union of India & Ors. is thoroughly under-utilised or if either of the two authorities overshoot the time, as stipulated in the rules, what is the fate of the sanction which was underway? We find there to be divergent views taken on this issue by the High Courts. It is a recognised principle of law that the law should apply equally to all persons which then implies that there should be uniformity, despite various jurisdictions being at play, in how the law is applied. The Law Commission of India in its 136th Report recognised that "the want of uniformity" is "an evil". The problem has been recognised stating thus :- "1. 2 Want of uniformity an evil.

- It is needless to point out that want of uniformity in law not only impairs the quality or the substantive or procedural law but also causes serious inconvenience to citizens in general. Those whose business is to advise persons who consult them on questions of law, find it difficult to give such advice with confidence where the decisions are conflicting. Those who are entrusted with the functions of adjudicating on questions of law must spend considerable time in between two or more possible views on a subject which falls to be considered before them, In this process, there is bound to result considerable waste of time and energy. That apart, it is not a satisfactory situation that on a given topic, the rule of law prevailing in one part of the country should be different from the rule prevailing in another part of the country when the disparity arises from conflicting judicial interpretations. " 28. 5. 1 The High Court of Judicature at Bombay (Nagpur Bench), in Criminal Appeal Nos.

136 & 137 of 2017 titled as Mahesh Kariman Tirki v. State of Maharashtra' on remand from this Court (by order dated 19th April 2023 passed in SLP (Crl. )Nos. 11072-11073/2022 for decision on merits as also validity of sanction), regarding timelines mentioned in the 2008 Rules, held as under: "153. Though the word "shall" no doubt connotes the sense of urgency, but the consequence of noncompliance in strict sense which flows from the 348 wordings in the rule, has not been spelt out under the statute. Neither at an initial stage of the prosecution nor even before us the defence has projected any prejudice from strict non-compliance of time frame. 154. The very purport of the provision is to convey that the process has to be complied with and completed in an expeditious manner. Particularly, we have taken into account the contingency which may occur, if the word "shall" in the context is held mandatory.

In that case, even if a single days delay would stifle the prosecution intending to curb the act of terrorism. Certainly, the legislative intent behind incorporating the term "shall" is not to stifle the prosecution on such insignificant technicality, but conveys that the process ought to be completed in an expeditious manner. We are unable to persuade ourselves to accept the contention that the term "shall" is to be strictly treated as a mandatory provision and failure to comply with the timeline strictly vitiates the process. Therefore, we respectfully defer with the view taken by the Kerala High Court in the case of Roopesh (supra) in that regard. 155. We are of the view that and accordingly hold that to achieve legislative intent the dual mandate is to be complied with in its true spirit.

Though a minuscule delay would not thwart the legislative intent, but delay if writ large from the record, which is unexplained, would certainly have its own adverse impact on the process of sanction. " The import of the above extract is that the timelines mentioned in Rules 3 and 4 of the 2008 Rules, despite having the word 'shall' in them, are to be taken as directory for, if the timeline is interpreted strictly, it may thwart the purpose of the legislation which is to curb unlawful activities of a specified nature. We notice that an appeal from the judgement extracted above, is pending before this Court. In the course of the present judgement, we make no comments on the merits thereof and clarify, that the above extract is only for the purpose of determining the question of Fuleshwar Gope v. Union of India & Ors. law, in respect of the timelines mentioned in the 2008 Rules, being either mandatory or directory in nature. 28. 5.

2 The Jharkhand High Court, recently, in Binod Kumar Ganjhu @Vinod Kumar Ganjhu @Binod Ganjhu v. Union of India32made similar observations and held that the timelines in the 2008 Rules are directory. It was observed- "23. The decision in "Roopesh" is not a binding precedent and we do not find ourselves bound by the considerations of judicial comity and propriety. We are unable to record our agreement to the observations made by the Kerala High Court in "Roopesh" that the time-line provided under Rules 3 and 4 of the Sanction Rules is mandatory. It is indeed not an issue for debate that the expression "shall" would not always convey mandatory compliance of the provision in law.

In our opinion, the Sanction Rules lay down a timeline which is in the nature of a guideline keeping in mind personal liberty of a person but such time-line cannot be held to be mandatory and, that too, in cases where serious allegations of commission of offence under UAP Act have been made and found prima-facie true by the NIA. 24. Long back, it has been held by the Hon'ble Supreme Court that the only principle which governs the criminal justice system is miscarriage of justice. This rule has its origin in the rules of principles of natural justice and that is why time and again the Hon'ble Supreme Court has laid stress on fair trial. Even on conclusion of the trial, the judgment rendered by a competent Court was not held illegal where a charge was not framed by the Court [refer, "Begu v. King-Emperor" ILR (1925) 6 Lah 226].

In this context, we may also refer to the provisions under sections 468 to 473 of the Code of Criminal Procedure which provide period of limitation for taking cognizance and exclusion as well as extension of period of limitation in certain cases. The scheme of the Code of Criminal Procedure thus indicates that it is not every irregularity which vitiates the trial and except in very exceptional kind of 32 W. P(Crl) 308 of 2022 350 cases the Court would not step into and hold the judgment rendered illegal. The fundamental right of an accused is of fair trial in which he has sufficient opportunity to defend himself by cross-examining the prosecution witnesses to bring out falsity in the prosecution case. But beyond this, an accused has only a statutory right to establish that the procedure as prescribed under the law has not been followed and such non-adherence to the procedure prescribed has deprived him a fair opportunity to defend himself which occasioned in miscarriage of justice.

As noticed above, the Court has taken cognizance of the offence under the UAP Act and charge has also been framed for committing such offence. In our considered opinion, the Sanction Rules would have no application in the cases of this nature because a criminal prosecution cannot be frustrated on mere technicalities. " Though the Special Leave Petition against this Order was dismissed, however, it was clarified that the question of sanction under Section 45 of the UAPA was not considered. 28. 5. 3 Taking a diametrically opposite view, the Kerala High Court in Roopesh v. State of Kerala,33 held that the timeline stipulated cannot be taken to be directory, keeping in view the Legislature's express inclusion of the same, departing from the practice adopted in other similarly placed laws such as TADA or Prevention of Terrorism Act, 2002,34 it held as under: "12.

The word 'shall' used in the Rules of 2008 has a well defined texture as available from the identical 'shall' employed in the text of sub-section (1) & (2) of S. 45 of the UA(P)A; and the power conferred on the Central Government by S. 52 to make rules for carrying out the provisions of the Act. The Rules of 2008 prescribed the time of seven days; as spoken of in the enactment. The Act itself is enacted, to prevent unlawful activities of individuals and associations as also dealing with terrorist activities, which terms are specifically defined under the enactment itself. 33 2022 SCC OnLine Ker 1372 34 'POTA' for short. Fuleshwar Gope v. Union of India & Ors. The colour is perceivable from the context in which the enactment is saved from the challenge of having infringed the fundamental rights guaranteed under the Constitution, only on the ground of a reasonable restriction; which has to be construed very strictly.

The Parliament, in bringing out the enactment and the Government, in promulgating the Rules had the prior experience of the TADA and POTA as also S. 196 Cr. P. C; none of which had a time frame for issuance of sanction. UA(P)A as it was originally enacted, in its Statements of Objects and Reasons, declared it to be in the interest of the sovereignty and integrity of India, intended to bring in reasonable restrictions to (i) freedom of speech and expression, (ii) right to assemble peaceably and without arms; and (iii) right to form associations or unions. The original enactment by S. 17 required a sanction from the Central Government or the authorised officer to initiate prosecution. ... 14. The Parliament, in 2008, while enacting Amending Act 35 of 2008 had consciously incorporated the provision requiring a recommendation from an Authority and retained the requirement of sanction from the appropriate Government, as provided in sub-section (1).

It was by sub- section (2) that an Authority was contemplated, to make recommendations after reviewing the evidence gathered and a specific time was permitted to be prescribed by rules. The Central Government having brought out the Rules of 2008 specifying the time, within which the recommendation and sanction has to be made, the time is sacrosanct and according to us, mandatory. It cannot at all be held that the stipulation of time is directory, nor can it be waived as a mere irregularity under S. 460 (e) or under S. 465 Cr. P. C. S. 460 saves any erroneous proceeding, inter- alia of taking cognizance; if done in good faith. When sanction is statutorily mandated for taking cognizance and if cognizance is taken without a sanction or on the strength of an invalid one, it cannot be said to be an erroneous proceeding taken in good faith and the act of taking cognizance itself would stand vitiated.

" 352 The State of Kerala, being aggrieved by the final conclusion that the sanction was bad in law, carried in appeal to this Court. The Special Leave Petition bearing number SLP (Crl. ) Nos. 6981-6983 of 2022, was dismissed as withdrawn with the question of law left open. 28. 5. 4 A similar view was taken by the High Court of Punjab and Haryana in Manjeet Singh v. State of Punjab. 35 Although decided in the context of bail, it was held that if no decision is taken, in keeping with the timelines of the Rules 2008, the accused would be entitled to interim bail. It concurred with the view expressed by the Kerala High Court in Roopesh (supra). 29. This Court has considered the issue of time-bound sanction. While dealing with sanctions under the PC Act, it was observed by Pamidighantam Sri Narsimha J. speaking for this Court, in Vijay Rajmohan v. Central Bureau of Investigation (Anti-Corruption Branch) 36 as under: "23.

Grant of sanction being an exercise of executive power, it is subject to the standard principles of judicial review such as application of independent mind; only by the competent authority, without bias, after consideration of relevant material and by eschewing irrelevant considerations. As the power to grant sanction for prosecution has legal consequences, it must naturally be exercised within a reasonable period. This principle is anyway inbuilt in our legal structure, and our constitutional courts review the legality and proprietary of delayed exercise of power quite frequently... ... 29. The sanctioning authority must bear in mind that public confidence in the maintenance of the rule of law, which is fundamental in the administration of justice, is at stake here.

By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny, thereby vitiating the process of determination of the allegations against the corrupt officialSubramanian 35 [2022] 19 SCR 563 : CRA-D-5 of 2023 36 (2023) 1 SCC 329 Fuleshwar Gope v. Union of India & Ors. Swamy [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] . Delays in prosecuting the corrupt breeds a culture of impunity and leads to systemic resignation to the existence of corruption in public life. Such inaction is fraught with the risk of making future generations getting accustomed to corruption as a way of life. ... ... 32.

In the first place, non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public interest having a direct bearing on the rule of law [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666. Per A. K. Ganguly, J. : (SCC p. 102, paras 76-77)"76. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of the rule of law which is fundamental in the administration of justice. Delay in granting such sanction has sp