Independent review by authority recommending and granting sanction are necessary aspects of compliance with Section 45 of the UAPA.
Judgment dated 23rd September 2024
Cause title : FULESHWAR GOPE VS UNION OF INDIA & ORS.
Case No: SLP (Crl.) No. 4866 of 2023
A Bench of Supreme Court Hon'ble Justice Mr. C.T. RAVIKUMAR and Hon'ble Justice SANJAY KAROL dismissed the Special Leave Petition filed by the accused. The SLP was filed against 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 letter for investigation, sanction and charge sheet pending trial before the Court of learned Special Judge, NIA, Ranchi.
Facts of the case are:
It is alleged that the appellant, Fuleshwar Gope is an associate of the People's Liberation Front of India and is acquainted with the facts that Dinesh Gope @ Kuldeep Yadav @ Banku 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 and Hira Devi @ Anita Devi. On the direction of Accused No. 6, it is alleged that the appellant formed a company M/s. Shiv Shakti Samridhi Infra Pvt. Ltd. along with Accused No. 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 Accused No. 6.
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 Accused No. 6. On 9th January, 2017, charge
sheet 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,
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. MHA further initiated
suo-motu sanction on 16th October, 2019 against twelve accused
persons, A-1 to A-12.
On 21st October, 2019, a supplementary charge sheet 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. The Appellant was subsequently arrested on 13th July,
2020. On 22nd July, 2020, suo-motu sanction was issued against an
additional seven persons (Accused No. 13 to 20), the Appellant is
Accused No. 17. A second Supplementary Charge sheet was filed the
next day i.e. 23rd July, 2020 under Sections 17, 18, 21, and 22C of
the UAPA.
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
Charge sheet vide an order 25th July, 2020 and framing of charges by
order dated 16th March, 2021.
Final order of the Hon'ble Supreme Court:
"51. Consequent to the discussion made herein above, the conclusions
drawn by this Court in respect of the questions of law for our
consideration, are as under:
51.1 The 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.
51.2 The timelines mentioned in Rules 3 & 4 of the 2008 Rules are
couched in mandatory language and, therefore, have to be strictly
followed.
This is keeping in view that UAPA being a penal legislation, strict
construction must be accorded to it. Timelines imposed by way of
statutory Rules are a way to keep a check on executive power which
is a necessary position to protect the rights of accused persons.
Independent review by both the authority recommending sanction and
the authority granting sanction, are necessary aspects of compliance
with Section 45 of the UAPA.
52. For the next two questions, which depend on analysis of facts
for their conclusions, their answers are as below :
52.1 Sections 218-222, CrPC, are not violated. In respect of Section
223, the position of law is the one taken in Paras Nath Singh
(supra). Therefore, this Court prudently leaves it for the Trial
Court to decide, if such an issue is raised before it.
52.2 Whether or not the exemption under Section 22A applies is a
matter to be established by the way of evidence for the person
claiming such exemption has to demonstrate that either he was not in
charge of the affairs of the company which has allegedly committed
the offence, or that he had made reasonable efforts to prevent the
commission of the offence. This, once again, is a matter for the
Trial Court to consider and not for this Court to
decide at this stage, keeping in view that the trial is underway and
proceeded substantially.
53. For the reasons afore-stated, the appeal lacks merit and,
accordingly, is dismissed. Pending applications, if any, shall stand
disposed of."
Download Judgment dated 23rd September 2024 in FULESHWAR GOPE VS UNION OF INDIA & ORS, SLP (Crl.) No. 4866 of 2023.