2024 INSC 718 1|SLP(CRL)4866/2023

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO… ………2024

(Arising out of SLP(Crl.) No.4866 of 2023)

FULESHWAR GOPE ... APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. ... RESPONDENT(S)

J U D G M E N T

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 21

st

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 16

th

January,

2018 in respect of the investigation of Bero P.S. Case No.67/2016 dated 10

th

2|SLP(CRL)4866/2023

November, 2016;

(b) Sanction letter No.11011/51/2017/NIA dated 22

nd

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 25

th

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 16

th

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 12

th

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 :-

3.1 It is alleged that the appellant, Fuleshwar Gope

1

is an associate of

the People’s Liberation Front of India

2

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

1

Hereinafter referred to as A-17

2

Abbreviated as ‘PLFI’

3|SLP(CRL)4866/2023

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 10

th

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, 1967

3

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 9

th

January, 2017, chargesheet No.01/2017 was filed and the

learned Judicial Magistrate 1

st

Class took cognizance thereof. On 18

th

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

3

Abbreviated as ‘UAPA’

4

Abbreviated as ‘MHA’

4|SLP(CRL)4866/2023

16

th

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 16

th

October, 2019 against twelve accused persons, A-1 to A-12.

3.5 On 21

st

October, 2019, a supplementary chargesheet was filed by

NIA wherein the Appellant was named as a witness for the Prosecution, as

PW-65. On 5

th

November, 2019, Special Judge NIA took cognizance of the

same.

3.6 The Appellant was subsequently arrested on 13

th

July, 2020. On 22

nd

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. 23

rd

July, 2020 under Sections 17,

18, 21, and 22C of the UAPA.

3.7 On 14

th

November, 2022, the Appellant filed a Writ Petition before

the High Court seeking for quashing of the Sanction Order dated 22

nd

July,

2020, taking of the cognizance of the second Supplementary Chargesheet

vide an order 25

th

July, 2020 and framing of charges by order dated 16

th

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)

5

Abbreviated as “NIA”

5|SLP(CRL)4866/2023

of the National Investigation Agency Act, 2008

6

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, 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, 2008

8

was not followed. The Court referred to the contents of the sanction order

6

Hereinafter ‘NIA, 2008’

7

(2019) 17 SCC 326

8

Hereinafter ‘2008 Rules’

6|SLP(CRL)4866/2023

dated 22

nd

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 Hasanfatta

10

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.

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

9

(2012) 5 SCC 424

10

(2019) 20 SCC 539

7|SLP(CRL)4866/2023

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 12

th

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

11

; State of Gujarat v. Anwar Osman

11

(2012) 11 SCC 606

8|SLP(CRL)4866/2023

Sumbhaniya

12

; Anirudhsinhji Karansinhji Jadeja v. State of Gujarat

13

;

Rambhai Nathabhai Gadhvi v. State of Gujarat

14

; Seeni Nainar

Mohammed v. State

15

; and Jamiruddin Ansari v. CBI

16

.

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 India

17

and 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 22

nd

May 2018) and sanction in respect

thereof was granted by the Central Government on 16

th

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 22

nd

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

12

(2019) 18 SCC 524

13

(1995) 5 SCC 302

14

(1997) 7 SCC 744

15

(2017) 13 SCC 685

16

(2009) 6 SCC 316

17

(2004) 9 SCC 580

18

(1994) 5 SCC 410

9|SLP(CRL)4866/2023

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 the present appellant vide its letter dated 14

th

July, 2020. The Central Government, in accordance with Section 45(2) of

the UAPA referred the investigation report to the authority by letter dated

15

th

July, 2020, comprising two members for the purpose of independent

review. The authority by its letter dated 16

th

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

10|SLP(CRL)4866/2023

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

11|SLP(CRL)4866/2023

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 the Act reads 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)

12|SLP(CRL)4866/2023

considered the objective of the Act in the following terms in Arup Bhuyan v.

State of Assam

19

:-

“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)

(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

19

(2023) 8 SCC 745

13|SLP(CRL)4866/2023

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 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.

14|SLP(CRL)4866/2023

(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.

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 15

th

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 16

th

July, 2020

15|SLP(CRL)4866/2023

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 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

20

this 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

20

(2014) 14 SCC 295

21

Hereinafter, ‘PC Act’

16|SLP(CRL)4866/2023

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 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

23

, Lodha, 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

22

(2007) 1 SCC 1

23

(2012) 1 SCC 532

17|SLP(CRL)4866/2023

before the sanctioning authority or bias of the sanctioning authority

or the order of sanction having been passed by an 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

Sikkim

25

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 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.”

24

(2020) 17 SCC 664

25

(2001) 6 SCC 704

26

Hereinafter ‘CrPC’

18|SLP(CRL)4866/2023

(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)

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

27

2023 SCC OnLine SC 911

19|SLP(CRL)4866/2023

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

20|SLP(CRL)4866/2023

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 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

21|SLP(CRL)4866/2023

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 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:

22|SLP(CRL)4866/2023

S. No. Details Date

1. First Information Report (F.I.R.) 10

th

November 2016

2. Chargesheet

(It is noted that investigation continues against

A-6)

9

th

January 2017

3. Sanction against A-6 16

th

October 2019

4. First Supplementary Chargesheet

(A-6 is named herein; A-17 is brought in as a

prosecution witness; Investigation continues

still further)

21

st

October 2019

5. Arrest of A-17 13

th

July 2020

6. Sanction against A-17 22

nd

July 2020

7. Second Supplementary Chargesheet

(A-17 is named herein)

23

rd

July 2020

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 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

23|SLP(CRL)4866/2023

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 Assam

29

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

28

Hereinafter referred as ‘TADA’

29

(2011) 6 SCC 358

24|SLP(CRL)4866/2023

words can rarely, if ever, be directory. And this is so

even though the statute provides 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 Gujarat

30

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

30

(2014) 8 SCC 425

31

(2016) 12 SCC 608

25|SLP(CRL)4866/2023

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.

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 14

th

July 2020 recommended prosecution for further seven

persons (A-13 to A-20); the Ministry vide letter dated 15

th

July 2020

forwarded the investigation report to the authority; the authority, the next

day, i.e., 16

th

July 2020, recommended sanction for prosecution against the

seven persons.

28.4 Rules 3 & 4 of the 2008 Rules, reproduced supra, grant the authority

26|SLP(CRL)4866/2023

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 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 136

th

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

27|SLP(CRL)4866/2023

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 19

th

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 non-compliance in strict sense

which flows from the 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

28|SLP(CRL)4866/2023

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 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 India

32

made

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 time-line 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

32

W.P(Crl) 308 of 2022

29|SLP(CRL)4866/2023

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 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

33

2022 SCC OnLine Ker 1372

30|SLP(CRL)4866/2023

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. 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,

34

‘POTA’ for short.

31|SLP(CRL)4866/2023

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.”

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

35

CRA-D-5 of 2023

36

(2023) 1 SCC 329

32|SLP(CRL)4866/2023

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

official Subramanian 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 spoilt many valid prosecutions and is adversely viewed

in public mind that in the name of considering a prayer for sanction,

a protection is given to a corrupt public official as a quid pro quo for

services rendered by the public official in the past or may be in the

future and the sanctioning authority and the corrupt officials were or

are partners in the same misdeeds. …77. By causing delay in

considering the request for sanction, the sanctioning authority

stultifies judicial scrutiny and determination of the allegations

against corrupt official and thus the legitimacy of the judicial

institutions is eroded. It, thus, deprives a citizen of his legitimate and

fundamental right to get justice by setting the criminal law in motion

and thereby frustrates his right to access judicial remedy which is a

constitutionally protected right.”]. This is also a non-sequitur. It must

also be kept in mind that the complainant or victim has no other

remedy available for judicial redressal if the criminal proceedings

stand automatically quashed. At the same time, a decision to

grant deemed sanction may cause prejudice to the rights of the

accused as there would also be non-application of mind in such

cases.”

(Emphasis supplied)

33|SLP(CRL)4866/2023

30. The observations in Vijay Rajmohan (supra) regarding the power of

sanction being open to the standard principle of judicial review; the same being

inbuilt in our legal structure; public confidence being at stake if a rule of law is

violated, are principles that in our considered view it will apply equally to

sanctions under UAPA. In context of the PC Act, it has been held that non-

compliance of a mandatory period cannot ipso facto lead to quashing of criminal

proceedings. This is where a difference emerges between the PC Act and the

UAPA. The implication, social as well as legal of both these acts diverges, in as

much as the latter entails far graver consequences. [See: State of T.N. v.

Sivarasan

37

; Rambhai Nathabhai Gadhvi (supra); and Ashrafkhan (Supra)] The

UAPA provides for a detailed procedure which is to be followed in granting of

sanction and undoubtedly, the same must be followed in absolute letter and spirit.

Construction of 2008 Rules

31. It is well understood that penal statutes are statutes to be interpreted strictly.

This canon of construction has been reiterated time and again. It is apposite here

to refer to certain authorities in this context.

31.1 Maxwell in The Interpretation of Statutes (11

th

Edn.) has observed:

“The effect of the rule of strict construction might almost be

summed up in the remark that, where an equivocal word or

ambiguous sentence leaves a reasonable doubt of its meaning

which the cannons of interpretation failed to solve, the benefit of

the doubt should be given to the subject and against the legislature

which has failed to explain itself. But it yields to the paramount

rule that every statute is to be expounded according to its

expressed or manifest intention and that all cases within the

37

(1997) 1 SCC 682

34|SLP(CRL)4866/2023

mischief aimed at our, if the language permits, to be held to fall

within its remedial influence”

Observations in the twelfth edition, in this context, are also educative:

“The strict construction of penal statutes seems to manifest itself

in four ways : In the requirement of express language for the

creation of an offence; in interpreting strictly words setting out

the elements of an offence; in requiring the fulfillment to the letter

of statutory conditions precedent to the infliction of punishment;

and in insisting on the strict observance of technical provisions

concerning criminal procedure and jurisdiction.”

31.2 In Standard Chartered Bank v. Directorate of Enforcement

38

, a

Constitution Bench while discussing the interpretation of penal statutes, held

as under:

“36. The rule of interpretation requiring strict construction of

penal statutes does not warrant a narrow and pedantic

construction of a provision so as to leave loopholes for the

offender to escape (see Murlidhar Meghraj Loya v. State of

Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493] ). A penal

statute has to also be so construed as to avoid a lacuna and to

suppress mischief and to advance a remedy in the light of the rule

in Heydon's case [(1584) 3 Co Rep 7a : 76 ER 637] . A common-

sense approach for solving a question of applicability of a penal

statute is not ruled out by the rule of strict construction. (See State

of A.P. v. Bathu Prakasa Rao [(1976) 3 SCC 301 : 1976 SCC

(Cri) 395] and also G.P. Singh on Principles of Statutory

Interpretation, 9th Edn., 2004, Chapter 11, Synopsis 3 at pp. 754

to 756.)”

31.3 In State of Jharkhand v. Ambay Cements

39

, a Bench of three judges,

while dealing with an issue relating to Bihar Industrial Promotion Policy,

1995, discussed the construction of penal statutes. The Court observed that:

“26. Whenever the statute prescribes that a particular act is to be

done in a particular manner and also lays down that failure to

comply with the said requirement leads to severe consequences,

such requirement would be mandatory. It is the cardinal rule of

interpretation that where a statute provides that a particular thing

should be done, it should be done in the manner prescribed and

38

(2005) 4 SCC 530

39

(2005) 1 SCC 368

35|SLP(CRL)4866/2023

not in any other way. It is also settled rule of interpretation that

where a statute is penal in character, it must be strictly construed

and followed. Since the requirement, in the instant case, of

obtaining prior permission is mandatory, therefore, non-

compliance with the same must result in cancelling the

concession made in favour of the grantee, the respondent herein.”

31.4 The course of action to be adopted by Courts, in view of language

used in the statutes has been noticed by this Court in Manjit Singh v. CBI

40

,

wherein it has been observed, referring to certain other authorities, that when

the language of a provision is unambiguous it would not be open to Courts

to adopt a hypothetical approach, leading to a different conclusion on the

ground that such different conclusion would be more in sync with the

objective of the statute.

31.5 In Priya Indoria v. State of Karnataka

41

, the position of law was

stated as under:

“84. Maxwell in his treatise on Interpretation of Statutes (10

Edn.), p. 284 states that “the tendency of modern decisions on the

whole is to narrow materially the difference between strict and

beneficial construction”. It follows that criminal statutes such as

the CrPC are interpreted with rational regard to the aim and

intention of the legislature. What has to be borne in the judicial

mind is that the interpretation of all statutes should be favourable

to personal liberty subject to fair and effective administration of

criminal justice.”

(Emphasis supplied)

32. Rules flowing from statutory power, have the effect of a statute. Section 52

of the UAPA grants power to the Central Government to make Rules for the

purpose of carrying out the provisions of the Act. Specifically, Section 52 (2)(ee)

40

(2011) 11 SCC 578

41

(2024) 4 SCC 749

36|SLP(CRL)4866/2023

deals with the present situation, i.e., enables the Government to prescribe the time

for recommendation and grant of sanction under Section 45. The 2008 Rules are

unequivocal in both, using the word ‘shall’ as also providing a specific time period

for both activities, i.e., making recommendation and granting sanction. In the

views of the High Courts discussed above, two have taken the view that the

timelines are directory, while the other two hold them to be mandatory. In the

former view, the word ‘shall’ is interpreted as ‘may’. At this juncture, it would

be apposite to refer to certain pronouncements. Prior to going into that question,

we may also refer to the well-established principles qua criminal statutes.

32.1 In Montreal Street Railway Company v. Normandin

42

, the Judicial

Committee of the Privy Council considered the question of whether a certain

provision in a statute imposing a duty on a public body or authority was

mandatory or directory. The Court observed that:

“…The question whether provisions in a statute are directory

or imperative has very frequently arisen in this country, but it

has been said that no general rule can be laid down, and that in

every case the object of the statute must be looked at. The cases

on the subject will be found collected in Maxwell on Statutes,

5th ed., p. 596 and following pages. When the provisions of a

statute relate to the performance of a public duty and the case

is such that to hold null and void acts done in neglect of this

duty would work serious general inconvenience, or injustice to

persons who have no control over those entrusted with the

duty, and at the same time would not promote the main object

of the Legislature, it has been the practice to hold such

provisions to be directory only, the neglect of them, though

punishable, not affecting the validity of the acts done.”

32.2 A Bench of five learned Judges in State of U.P. v. Manbodhan Lal

42

LR (1917) AC 170

37|SLP(CRL)4866/2023

Srivastava

43

, while construing Article 320 of the Constitution of India,

interpretated the words ‘shall’ and ‘may’ as under:

“11. …Hence, the use of the word “shall” in a statute, though

generally taken in a mandatory sense, does not necessarily mean

that in every case it shall have that effect, that is to say, that unless

the words of the statute are punctiliously followed, the proceeding

or the outcome of the proceeding, would be invalid. On the other

hand, it is not always correct to say that where the word “may”

has been used, the statute is only permissive or directory in the

sense that non-compliance with those provisions will not render

the proceeding invalid. In that connection, the following

quotation from Crawford on Statutory Construction — Article

261 at p. 516, is pertinent:

“The question as to whether a statute is mandatory or

directory depends upon the intent of the legislature

and not upon the language in which the intent is

clothed. The meaning and intention of the legislature

must govern, and these are to be ascertained, not only

from the phraseology of the provision, but also by

considering its nature, its design, and the

consequences which would follow from construing it

the one way or the other….”

32.3 In State of U.P. v. Babu Ram Upadhya

44

, a Constitution Bench

considered the interpretation of the word ‘shall’ as mandatory and observed

as under:

“29. The relevant rules of interpretation may be briefly stated

thus : When a statute uses the word “shall”, prima facie, it is

mandatory, but the Court may ascertain the real intention of the

legislature by carefully attending to the whole scope of the statute.

For ascertaining the real intention of the Legislature the Court

may consider, inter alia, the nature and the design of the statute,

and the consequences which would follow from construing it the

one way or the other, the impact of other provisions whereby the

necessity of complying with the provisions in question is avoided,

the circumstance, namely, that the statute provides for a

contingency of the non-compliance with the provisions, the fact

that the non-compliance with the provisions is or is not visited by

some penalty, the serious or trivial consequences that flow

therefrom, and, above all, whether the object of the legislation

43

1957 SCC OnLine SC 4

44

1960 SCC OnLine SC 5

38|SLP(CRL)4866/2023

will be defeated or furthered.”

32.4 In Bachahan Devi v. Nagar Nigam, Gorakhpur

45

, this Court

considered at length this rule of interpretation. It was observed:

“21. The ultimate rule in construing auxiliary verbs like “may”

and “shall” is to discover the legislative intent; and the use of the

words “may” and “shall” is not decisive of its discretion or

mandates. The use of the words “may” and “shall” may help the

courts in ascertaining the legislative intent without giving to

either a controlling or a determinating effect. The courts have

further to consider the subject-matter, the purpose of the

provisions, the object intended to be secured by the statute which

is of prime importance, as also the actual words employed.”

Although in this case the Court was concerned with a land dispute,

the observation in respect of the use of the words ‘may’ and ‘shall’ are

general principles of statutory construction and are therefore relevant to the

present discussion.

32.5 In Vijay Dhanuka v. Najima Mamtaj

46

, this Court interpreted the

words ‘may’ and ‘shall’ in the context of CrPC as under:

“12. …The use of the expression “shall” prima facie makes the

inquiry or the investigation, as the case may be, by the Magistrate

mandatory. The word “shall” is ordinarily mandatory but

sometimes, taking into account the context or the intention, it can

be held to be directory. The use of the word “shall” in all

circumstances is not decisive. Bearing in mind the aforesaid

principle, when we look to the intention of the legislature, we find

that it is aimed to prevent innocent persons from harassment by

unscrupulous persons from false complaints. Hence, in our

opinion, the use of the expression “shall” and the background and

the purpose for which the amendment has been brought, we have

no doubt in our mind that inquiry or the investigation, as the case

may be, is mandatory before summons are issued against the

accused living beyond the territorial jurisdiction of the

Magistrate.”

45

(2008) 12 SCC 372

46

(2014) 14 SCC 638

39|SLP(CRL)4866/2023

32.6 Crawford's Statutory Construction (1989 reprint)

47

, notes as

follows in regard to ‘mandatory’ and ‘directory’ words:

“Ordinarily the words ‘shall’ and ‘must’ are mandatory, and the

work ‘may’ is directory, although they are often used inter-

changeably in legislation. This use without regard to their literal

meaning generally makes it necessary for the courts to resort to

construction in order to discover the real intention of the

legislature. Nevertheless, it will always be presumed by the court

that the legislature intended to use the words in their usual and

natural meaning. If such a meaning, however, leads to absurdity,

or great inconvenience, or for some other reason is clearly

contrary to the obvious intention of the legislature, then words

which ordinarily are mandatory in their nature will be construed

as directory, or vice versa. In other words, if the language of the

statute, considered as a whole and with due regard to its nature

and object, reveals that the legislature intended the words ‘shall’

and ‘must’ to be directory, they should be given that meaning.

Similarly, under the same circumstances, the word ‘may’ should

be given a mandatory meaning, and especially where the statute

concerns the rights and interests of the public, or where third

persons have a claim de jure that a power shall be exercised, or

whenever something is directed to be done for the sake of justice

or the public good, or is necessary to sustain the statute's

constitutionality.

Yet the construction of mandatory words as directory and

directory words as mandatory should not be lightly adopted. The

opposite meaning should be unequivocally evidenced before it is

accepted as the true meaning; otherwise, there is considerable

danger that the legislative intent will be wholly or partially

defeated.”

(Emphasis supplied)

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

47

Cited in Union of India v. A.K. Pandey, (2009) 10 SCC 552

40|SLP(CRL)4866/2023

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 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

41|SLP(CRL)4866/2023

separation of powers. We find support for our view in the Constitution Bench

decision in A.R. Antulay v. Ramdas Sriniwas Nayak

48

, 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

49

; Institute of Chartered

Accountants of India v. Price Waterhouse

50

*; and Shiv Shakti Coop. Housing

Society v. Swaraj Developers

51

]

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.

Independent Review

34. The bone of contention in this regard is that since both the recommending

and the granting authorities took merely a day each in performing their respective

48

(1984) 2 SCC 500

49

1992 Supp (1) SCC 323

50

(1997) 6 SCC 312

*dissenting opinion of Saghir Ahmad, J.

51

(2003) 6 SCC 659

42|SLP(CRL)4866/2023

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.

35. The meaning of the word independent, as is well understood, is that the act,

or as in this case, 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.

35.1 The Cambridge dictionary defines the word independent to mean: –

“not influenced or controlled in any way by other people,

events, or things”

35.2 The Merriam Webster dictionary defines the word independent as:-

“1: not dependent: such as

a (1): not subject to control by others ; (2): not affiliated with

a larger controlling unit

b (1): not requiring or relying on something else : not

contingent; (2): not looking to others for one's opinions or for

guidance in conduct; (3): not bound by or committed to a

political party

c (1): not requiring or relying on others (as for care or

livelihood); (2): being enough to free one from the necessity

of working for a living

d: showing a desire for freedom”

35.3 The Black’s Law Dictionary defines:

“INDEPENDENT. Not dependent; not subject to control,

restriction, modification, or limitation from a given outside

source.”

Independence, which is the state of being independent would also be

instructive in our understanding.

“INDEPENDENCE. The state or condition of being free from

dependence, subjection, or control. A state of perfect

irresponsibility. Political independence is the attribute of a

nation or state which is entirely autonomous, and not subject

to the government, control, or dictation of any exterior power.”

36. Review, as a concept is to be understood for it is the coming together of

43|SLP(CRL)4866/2023

these two aspects which will form our understanding of the term ‘independent

review’.

36.1 The Cambridge dictionary defines the word review as:

“to think or talk about something again, in order to make

changes to it or to make a decision about it”

36.2 The Merriam Webster dictionary defines the word review to mean

as:

“ …2: to examine or study again especially : to reexamine

judicially

…

4 a: to go over or examine critically or deliberately; b: to give

a critical evaluation of”

36.3 The Burton’s Legal Thesaurus

52

lists the following words as being

similar to ‘review’ – analyse; comment upon; contemplari; criticize; critique;

investigate; mull over; notice; critically; reconsider; reexamine; scrutinize;

study and weigh.

37. The import of the term independent review as can be understood from the

above is a re-examination, scrutiny or critique of something which is not

dependent or subject to control by any other factor or authority. In the present

facts, 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

52

Third Edition; Page 473

44|SLP(CRL)4866/2023

authority, in its act of granting sanction.

38. The legislative intent in bringing about the aspect of independent review,

by way of an amendment brought into effect from 31

st

December 2008, within

Section 45 of the UAPA is required to be noticed.

39. The Minister for Home Affairs in moving the draft Bills before the Council

of States, highlighted the intent behind such introduction as herein below

reproduced:

“Finally, Sir, we have incorporated a very salutary provision. To the

best of our knowledge-I don't know, I may be corrected by the Law

Minister or the Law Secretary later - it is the first time we are

introducing this. In a prosecution under the UAPA, now, it is the

executive Government which registers the case through a police

officer. It is the executive Government which investigates the case

through an investigating agency, namely, the police department. It is

the executive Govt. which sanctions u/s. 45. Therefore, there is a fear

that a vindictive or a wrong executive Govt. could register a case,

investigate and sanction prosecution. There is a fear. May be, it is

not a fear that is entirely justified but you cannot say that it is entirely

unjustified. So what are we doing? The executive Govt. can register

the case because no one else can register a case. The executive Govt.,

through its agency, can investigate the case. But, before sanction is

granted under 45(1) we are interposing an independent authority

which will review the entire evidence, gathered in the investigation,

and then make a recommendation whether this is a fit case of

prosecution. So, here, we are bringing a filter, a buffer, an

independent authority who has to review the entire evidence that is

gathered and, then, make a recommendation to the State Govt. or the

Central Govt. as the case may be, a fit case for sanction. I think, this

is a very salutary safeguard. All sections of the House should

welcome it. This is a biggest buffer against arbitrariness which many

Members spoke about. Sir, these are the features in the Bill.”

In the statement extracted above, the idea, purpose and intent behind

bringing in an independent authority to scrutinize the material gathered by the

investigating agency prior to the government being able to issue or deny a

sanction, has been clearly laid out. It was so done to have checks over the power

45|SLP(CRL)4866/2023

of the executive in this regard.

40. What flows from the above is that independence of this authority is sine

qua non, without which it would have lost its entire purpose. The question, now

to be considered is as to how it may be determined that a particular process shone

with independence or was the same compromised by the clouds of influence,

which may compromise its character.

40.1 In C.S. Krishnamurthy v. State of Karnataka

53

, the Court speaking

in the context of a sanction order under PC Act held:

“9. Therefore, the ratio is sanction order should speak for itself

and in case the facts do not so appear, it should be proved by

leading evidence that all the particulars were placed before the

sanctioning authority for due application of mind. In case the

sanction speaks for itself then the satisfaction of the sanctioning

authority is apparent by reading the order…”

This was also referred to in State of M.P. v. Harishankar Bhagwan

Prasad Tripathi

54

.

40.2 In State of Maharashtra v. Mahesh G. Jain

55

, after considering a

host of authorities, including some that have been cited before in the present

case, the following factors were culled out:

“14.1. It is incumbent on the prosecution to prove that the valid

sanction has been granted by the sanctioning authority after being

satisfied that a case for sanction has been made out.

14.2. The sanction order may expressly show that the sanctioning

authority has perused the material placed before it and, after

consideration of the circumstances, has granted sanction for

prosecution.

53

(2005) 4 SCC 81

54

(2010) 8 SCC 655

55

(2013) 8 SCC 119

46|SLP(CRL)4866/2023

14.3. The prosecution may prove by adducing the evidence that

the material was placed before the sanctioning authority and its

satisfaction was arrived at upon perusal of the material placed

before it.

14.4. Grant of sanction is only an administrative function and the

sanctioning authority is required to prima facie reach the

satisfaction that relevant facts would constitute the offence.

14.5. The adequacy of material placed before the sanctioning

authority cannot be gone into by the court as it does not sit in

appeal over the sanction order.

14.6. If the sanctioning authority has perused all the materials

placed before it and some of them have not been proved that

would not vitiate the order of sanction.

14.7. The order of sanction is a prerequisite as it is intended to

provide a safeguard to a public servant against frivolous and

vexatious litigants, but simultaneously an order of sanction

should not be construed in a pedantic manner and there should not

be a hypertechnical approach to test its validity.”

In the very same judgment, it was observed that “grant of sanction is

a sacrosanct and sacred act” whose aim is to protect a public servant against

vexatious litigation. However, when the order of sanction is (a) by a

competent authority and (b) after due application of mind, it cannot be dealt

with lightly or, in other words, summarily discarded.

40.3 Recently, in Judgebir Singh v. National Investigation Agency

56

,

while examining the application of Rules 3 & 4 of 2008 Rules, this court

observed:

“50. …We place emphasis on the expression “within 7 working

days of the receipt of the evidence gathered by the investigating

officer under the CrPC”. This evidence which Rule 3 of the Rules,

2008 contemplates is the final report i.e., filed by the investigating

agency under Section 173 of the CrPC. How can one expect the

authority under sub section (2) of Section 45 to make its report

containing the recommendations without looking into the

56

2023 SCC OnLine SC 543

47|SLP(CRL)4866/2023

chargesheet thoroughly containing the evidence gathered by the

investigating officer. On the contrary, Rule 3 of the Rules, 2008

makes it explicitly clear that the authority under sub section (2)

of Section 45 of the UAPA is obliged in law to apply its mind

thoroughly to the evidence gathered by the investigating officer

and thereafter, prepare its report containing the

recommendations to the Central Government or the State

government for the grant of sanction. The grant of sanction is

not an idle formality. The grant of sanction should reflect

proper application of mind.

(Emphasis in original)

(Emphasis supplied)

40.4 In State of Punjab v. Mohd. Iqbal Bhatti

57

, the position of law was

stated thus:

“7. Validity of an order of sanction would depend upon

application of mind on the part of the authority concerned and the

material placed before it. All such material facts and material

evidence must be considered by it. The sanctioning authority must

apply its mind on such material facts and evidence collected

during the investigation. Even such application of mind does not

appear from the order of sanction, extrinsic evidence may be

placed before the court in that behalf. While granting sanction,

the authority cannot take into consideration an irrelevant fact nor

can it pass an order on extraneous consideration not germane for

passing a statutory order. It is also well settled that the superior

courts cannot direct the sanctioning authority either to grant

sanction or not to do so…”

40.5 In State (NCT of Delhi) v. Navjot Sandhu

58

, this Court considered

in extenso the provisions and scheme of the TADA in connection with the

‘2001 Parliament Attack’. For the present judgment certain observations

made in regard to sanctions are relevant. They are summarised as follows:-

40.5.1 What is to be considered is whether the material which formed

the raison d’être of the allegations was actually placed before the

57

(2009) 17 SCC 92

58

(2005) 11 SCC 600

48|SLP(CRL)4866/2023

authority.

40.5.2 A reiteration of the contents of the FIR or draft chargesheet

does not constitute consideration or application of mind. It has to be

something further than that.

40.5.3 The order of sanction or recommendation or grant of sanction,

both should on their face indicate consideration of all relevant material.

40.5.4 The standard to be applied in ‘judging’ sanction orders is not

the same as that applied to orders of quasi-judicial bodies for it is a

purely an administrative function.

40.6 The observations of this Court in State of Bihar v. P.P. Sharma

59

,

are instructive. Relevant extract is as under:

“27. The sanction under Section 197 CrPC is not an empty

formality. It is essential that the provisions therein are to be

observed with complete strictness. The object of obtaining

sanction is that the authority concerned should be able to consider

for itself the material before the Investigating Officer, before it

comes to the conclusion that the prosecution in the circumstances

be sanctioned or forbidden. To comply with the provisions of

Section 197 it must be proved that the sanction was given in

respect of the facts constituting the offence charged. It is desirable

that the facts should be referred to on the face of the sanction.

Section 197 does not require the sanction to be in any particular

form. If the facts constituting the offence charged are not shown

on the face of the sanction, it is open to the prosecution, if

challenged, to prove before the court that those facts were placed

before the sanctioning authority. It should be clear from the form

of the sanction that the sanctioning authority considered the

relevant material placed before it and after a consideration of all

the circumstances of the case it sanctioned the prosecution.”

(Emphasis supplied)

59

1992 Supp (1) SCC 222

49|SLP(CRL)4866/2023

41. Having given our attention to the position of law as above, let us now turn

to the instant facts. Simply put, the objection of the appellant arises from the short

amount of time taken in recommending and granting sanction, against him which

he claims to be 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. As has been noted in Superintendent of Police (CBI) v.

Deepak Chowdhary

60

, the authorities are required only to reach a prima facie

satisfaction that the relevant facts, as gathered in the investigation would

constitute the offence or not. In Mahesh G. Jain (supra) it has been held that the

prosecution is to prove that a valid sanction has been granted. This needless to

state, can only be done by adducing evidence at trial, where the defence in

challenge thereto, will necessarily have to be given an opportunity to question the

same and put forward its case that the two essential requirements detailed above,

have not been met. Furthermore, in Mohd. Iqbal M. Shaikh v. State of

Maharashtra

61

, a case under the TADA, this Court was faced with a similar

situation, the sanction wherein was granted by the competent authority, i.e., the

Commissioner of Police, Greater Bombay on the same day that he received the

60

(1995) 6 SCC 225

61

(1998) 4 SCC 494

50|SLP(CRL)4866/2023

papers in that regard. The contention of non-application of mind was not accepted

by the Court observing that so long as the sanction was by a competent authority

and after applying its mind to all materials and the same being reflected in the

order, the sanction would hold to be valid. It was further held that when an order

does not so indicate, the prosecution is entitled to adduce evidence aliunde of the

person who granted the sanction and that would be sufficient compliance. The

Court would then, look into such evidence to arrive at a conclusion as to whether

application of mind was present or absent. In conclusion, we hold that

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. As a result of the conclusion drawn by this

Court on the first issue, it is also to be said that if the sanction is taken exception

to, on the above grounds, it has to be raised at the earliest instance and not

belatedly, however, law does not preclude the same from being challenged at a

later stage. It is to be noted that the scheme of the UAPA does not house a

provision such as Section 19 of the PC Act

62

which protects proceedings having

62

19. Previous sanction necessary for prosecution.—

…

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal,

confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction

required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned

thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the

sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a

failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers

of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

51|SLP(CRL)4866/2023

been initiated on the basis of sanctions which come to be questioned at a later

point in time and, therefore, Courts ought to be careful in entertaining belated

challenges. 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. This we may say so for the reason that 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.

An 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 [See: P.P. Sharma (supra); Navjot

Sandhu (supra) and Mahesh G. Jain (supra)] That being the accepted position

we find no infirmity in the order granting sanction against A-17. It is not

incumbent upon such authority to record detailed reasons to support its conclusion

and, as such, the orders challenged herein, cannot be faulted with on that ground.

ISSUE No.3 – Misjoinder of Charges and Violation of CrPC

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such

sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the

objection could and should have been raised at any earlier stage in the proceedings.

Explanation.—For the purposes of this section,—

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the

instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

52|SLP(CRL)4866/2023

42. The appellant contends that two disjointed transactions have been taken

together, to make him an accused and a member of the larger conspiracy. The

respondent-Union on the other hand argues that all the transactions (First Module,

Second Module, as also the one for which the Appellant was made an accused)

are inter-connected and flow from the first sanction. Further, it has been alleged

by the appellants that there is a gross misuse of powers by the NIA and a violation

of Sections 218-224 of CrPC.

43. Section 218 features in Chapter XVII of the CrPC titled ‘The Charge’ and

more specifically Part B thereof, which is joinder of charges. In a sense, the

appellant has alleged violation of an entire part of the chapter, which submission

on the face of it is difficult to accept. It requires no reiteration that a person when

alleging the contravention of a section or portion of statute, has to substantiate the

same by demonstrating which aspect of the section stood not complied with and

how such non-compliance has prejudicially affected him. In the present case,

however, we are confronted with a sweeping statement of contravention of

provisions of the CrPC with little to no explanation as to how that may be the

case.

43.1 Section 218 provides, first, that there should be a separate charge for

each distinct offence; and secondly, that there should be a separate trial for

every such charge, except in the four cases mentioned in Sections 219, 220,

221 and 223.

43.2 Section 219 provides that the three charges of three offences of the

53|SLP(CRL)4866/2023

same kind committed within one year be tried together. The section

contemplates a joint trial for three separate offences only when the offences

are essentially of a simple kind and do not require the framing of a multitude

of different charges.

43.3 Section 220 relates to the joinder of charges of offences committed

by the same person. It applies to a case, when different offences form part of

the same transaction, and are committed by the same person, then he may be

charged with and tried at one trial for, every such offence.

43.4 Section 221 provides for cases where it is doubtful what offence has

been committed. If a single act or series of acts is of such nature that it is

doubtful which of several offences the facts, which can be proved will

constitute, the charge can be framed for all offences or alternative charges

can be framed. At the trial, if it is established that the accused has committed

an offence, he may be convicted though he may not have been charged with

the offence.

43.5 Section 222 applies to cases in which the charge is of an offence

which consists of several particulars, a combination of some only of which

constitutes a complete minor offence.

43.6 Section 223 provides for joinder of charges against more than one

accused person in the same trial. It deals with the plurality of persons, who

can be tried together, in other words, the joint trial of more than one person.

43.7 Section 224 deals with withdrawal of remaining charges on

54|SLP(CRL)4866/2023

conviction on one of several charges.

44. Sections 218 to 222 pertain to the joinder of charges against the same

person in the same trial. Section 223 deals with plurality of persons, i.e., more

than one accused in the same trial. We may notice a few decisions of this Court,

to put the application of these provisions, in context.

44.1 In Balbir v. State of Haryana

63

, a Bench of three learned Judges

observed as under:

“11. …In both the aforesaid clauses the primary condition is that

persons should have been accused either of the same offence or

of different offences “committed in the course of the same

transaction”. The expression advisedly used is “in the course of

the same transaction”. That expression is not akin to saying “in

respect of the same subject-matter”. It is pertinent to point out that

the same expression is employed in Section 220(1) of the Code

also [corresponding to Section 235(1) of the old Code]. The

meaning of the expression “in the course of the same transaction”

used in Section 223 is not materially different from that

expression used in Section 223(1) [sic 235(1)]. It is so understood

by this Court in State of A.P. v. Cheemalapati Ganeswara Rao

[AIR 1963 SC 1850 : (1964) 3 SCR 297] . The following

observation in the said judgment is contextually quotable:

“The series of acts which constitute a transaction

must of necessity be connected with one another and

if some of them stand out independently, they would

not form part of the same transaction but would

constitute a different transaction or transactions.

Therefore, even if the expression ‘same transaction’

alone had been used in Section 235(1) it would have

meant a transaction consisting either of a single act or

of a series of connected acts. The expression ‘same

transaction’ occurring in clauses (a), (c) and (d) of

Section 239 as well as that occurring in Section

235(1) ought to be given the same meaning according

to the normal rule of construction of statutes.”

12. For several offences to be part of the same transaction, the test

which has to be applied is whether they are so related to one

another in point of purpose or of cause and effect, or as principal

63

(2000) 1 SCC 285

55|SLP(CRL)4866/2023

and subsidiary, so as to result in one continuous action. Thus,

where there is a commonality of purpose or design, where there

is a continuity of action, then all those persons involved can be

accused of the same or different offences “committed in the

course of the same transaction”.”

44.2 In R. Dineshkumar v. State

64

, this Court considered the aspect of

‘transaction’ in the following terms:

“…19.3. This Court after taking note of the fact that the clause

“same transaction” is not defined under the CrPC opined that the

meaning of the clause should depend upon the facts of each case.

However, this Court indicated that where there is a proximity of

time or place or unity of purpose and design or continuity of

action in respect of a series of acts, it is possible to infer that they

form part of the same transaction. This Court also cautioned that

every one of the abovementioned elements need not co-exist for

a transaction to be regarded as the “same transaction”.

20. According to us, the principle enunciated in Ganeswara Rao

case [AIR 1963 SC 1850 : (1963) 2 Cri LJ 671] is that where

several persons are alleged to have committed several separate

offences, which, however, are not wholly unconnected, then

there may be a joint trial unless such joint trial is likely to cause

either embarrassment or difficulty to the accused in defending

themselves.”

44.3 In Nasib Singh v. State of Punjab

65

, DY Chandrachud, J (as his

Lordship then was) speaking for a three-judge Bench formulated the following

principles in respect of joint or separate trials:

“51.1. Section 218 provides that separate trials shall be conducted

for distinct offences alleged to be committed by a person.

Sections 219-221 provide exceptions to this general rule. If a

person falls under these exceptions, then a joint trial for the

offences which a person is charged with may be conducted.

Similarly, under Section 223, a joint trial may be held for persons

charged with different offences if any of the clauses in the

provision are separately or on a combination satisfied.

51.2. While applying the principles enunciated in Sections 218-

223 on conducting joint and separate trials, the trial court should

64

(2015) 7 SCC 497

65

(2022) 2 SCC 89

56|SLP(CRL)4866/2023

apply a two-pronged test, namely, (i) whether conducting a

joint/separate trial will prejudice the defence of the accused;

and/or (ii) whether conducting a joint/separate trial would cause

judicial delay.

51.3. The possibility of conducting a joint trial will have to be

determined at the beginning of the trial and not after the trial

based on the result of the trial. The appellate court may determine

the validity of the argument that there ought to have been a

separate/joint trial only based on whether the trial had prejudiced

the right of accused or the prosecutrix.

51.4. Since the provisions which engraft an exception use the

phrase “may” with reference to conducting a joint trial, a separate

trial is usually not contrary to law even if a joint trial could be

conducted, unless proven to cause a miscarriage of justice.

51.5. A conviction or acquittal of the accused cannot be set aside

on the mere ground that there was a possibility of a joint or a

separate trial. To set aside the order of conviction or acquittal, it

must be proved that the rights of the parties were prejudiced

because of the joint or separate trial, as the case may be.”

The case of appellant, as is evident from the record, falls under the

latter category, i.e., multiple persons in the same trial (appellant is A-17 out

of a total of 20 accused persons). It has been held that joint or separate trial

is a decision to be taken by the learned trial Judge at the beginning of the

trial considering (a) the possibility of prejudice; and b) causing judicial

delay, if any. Further, the language of Section 223 is directory in nature,

signified by the use of word ‘may’.

45. Naseeb Singh (supra) holds that a separate trial would not be contrary to

law unless a miscarriage of justice can be demonstrated. Similarly, we are of the

view that a joint trial, if held, after having considered the two factors given above,

cannot be said to be ipso facto prejudicial to the parties.

57|SLP(CRL)4866/2023

46. It is alleged that Dinesh Gope (A-6), who is the Chief of PLFI, extorts

money from various persons and that this company (A-20) of which the present

appellant is a director, is used to legitimise the proceeds of such unlawful actions.

The appellant, however, contends 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. In State of U.P. v. Paras Nath Singh

66

, the Court observed as under:

“8. …As the provision itself mandates that no finding, sanction

or order by a court of competent jurisdiction becomes invalid

unless it is so that a failure of justice has in fact been occasioned

because of any error, omission or irregularity in the charge

including in misjoinder of charge, obviously, the burden is on the

accused to show that in fact a failure of justice has been

occasioned.”

Therefore, we leave it 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.

ISSUE No. 4 – Whether Section 22A applies to the Appellant?

47. Section 22A of the UAPA reads as under:

“22A. Offences by companies.—

(1) Where an offence under this Act has been committed by a

company, every person (including promoters of the company) who,

at the time the offence was committed, was in charge of, and was

responsible to, the company for the conduct of the business of the

company, as well as the company, shall be deemed to be guilty of

66

(2009) 6 SCC 372

58|SLP(CRL)4866/2023

the offence and shall be liable to be proceeded against and punished

accordingly:

Provided that nothing contained in this sub-section shall render any

such person (including promoters) liable to any punishment provided

in this Act, if he proves that the offence was committed without his

knowledge or that he had exercised reasonable care to prevent the

commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an

offence under this Act has been committed by a company and it is

proved that the offence has been committed with the consent or

connivance of, or is attributable to, any neglect on the part of, any

promoter, director, manager, secretary or other officer of the

company, such promoter, director, manager, secretary or other

officer shall also be deemed to be guilty of that offence and shall be

liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,— (a) “company”

means any body corporate and includes a firm or other association

of individuals; and (b) “director”, in relation to a firm, means a

partner in the firm.”

48. For Section 22A to apply :- (a) offence has to committed by a company;

(b) all persons who at the time of the offence were in control of, or responsible

for, the company’s affairs shall be deemed guilty; (c) such person would be saved

from guilt as under (b) if they can demonstrate that such act was (i) not in their

knowledge; (ii) they had taken reasonable care to prevent such offence from

taking place. The section further provides that if it can be proved that the offence

committed by the company was (1) with consent; (2) in connivance of; (3)

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.

49. The case put forward by the appellant is that he, who is allegedly a director

of A-20 is saved by the statutory language which provides that if a person could

demonstrate and prove that the offence was committed without his knowledge, he

59|SLP(CRL)4866/2023

would be exempt from prosecution. This exemption is recognized in other statutes

as well. We may take support of pronouncements of this Court with reference to

Sections 138 and 141 of the Negotiable Instruments Act, 1881

67

since the latter is

similarly worded and phrased.

“141. Offences by companies.—

(1) If the person committing an offence under section 138 is a

company, every person who, at the time the offence was

committed, was in charge of, and was responsible to, the company

for the conduct of the business of the company, as well as the

company, shall be deemed to be guilty of the offence and shall be

liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render

any person liable to punishment if he proves that the offence was

committed without his knowledge, or that he had exercised all due

diligence to prevent the commission of such offence:

Provided further that where a person is nominated as a Director

of a company by virtue of his holding any office or employment

in the Central Government or State Government or a financial

corporation owned or controlled by the Central Government or

the State Government, as the case may be, he shall not be liable

for prosecution under this Chapter.

(2) Notwithstanding anything contained in sub-section (1), where

any offence under this Act has been committed by a company and

it is proved that the offence has been committed with the consent

or connivance of, or is attributable to, any neglect on the part of,

any director, manager, secretary or other officer of the company,

such director, manager, secretary or other officer shall also be

deemed to be guilty of that offence and shall be liable to be

proceeded against and punished accordingly.

Explanation.—For the purposes of this section, —

(a) “company” means any body corporate and includes a firm or

other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.”

67

‘NI Act’ for short

60|SLP(CRL)4866/2023

49.1 In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla

68

, a Bench of three

Judges held that only a person who is in charge of the affairs of the company,

i.e., a director, manager or secretary and alongside that was connected to the

criminal act being committed, would be liable under this section. Relevant

portion thereof reads thus:

“10. …What is required is that the persons who are sought to be

made criminally liable under Section 141 should be, at the time

the offence was committed, in charge of and responsible to the

company for the conduct of the business of the company. Every

person connected with the company shall not fall within the ambit

of the provision. It is only those persons who were in charge of

and responsible for the conduct of business of the company at the

time of commission of an offence, who will be liable for criminal

action. It follows from this that if a director of a company who

was not in charge of and was not responsible for the conduct of

the business of the company at the relevant time, will not be liable

under the provision. The liability arises from being in charge of

and responsible for the conduct of business of the company at the

relevant time when the offence was committed and not on the

basis of merely holding a designation or office in a company.

Conversely, a person not holding any office or designation in a

company may be liable if he satisfies the main requirement of

being in charge of and responsible for the conduct of business of

a company at the relevant time. Liability depends on the role one

plays in the affairs of a company and not on designation or status.

If being a director or manager or secretary was enough to cast

criminal liability, the section would have said so. Instead of

“every person” the section would have said “every director,

manager or secretary in a company is liable”…, etc. The

legislature is aware that it is a case of criminal liability which

means serious consequences so far as the person sought to be

made liable is concerned. Therefore, only persons who can be said

to be connected with the commission of a crime at the relevant

time have been subjected to action.”

49.2 This is the settled position of law which has been subsequently being

reiterated in numerous judgments of this Court. Illustratively, the recent

68

(2005) 8 SCC 89

61|SLP(CRL)4866/2023

judgment in Susela Padmavathy Amma v. Bharti Airtel Ltd.

69

, referring to

S.M.S. Pharmaceuticals (supra) acquitted the appellant therein of the

offences under Section 138 NI Act. Gavai, J., speaking for the Bench held

as under:

“21. It was held that merely because a person is a director of a

company, it is not necessary that he is aware about the day-today

functioning of the company. This Court held that there is no

universal rule that a director of a company is in charge of its

everyday affairs. It was, therefore, necessary, to aver as to how

the director of the company was in charge of day-to-day affairs of

the company or responsible to the affairs of the company. This

Court, however, clarified that the position of a managing director

or a joint managing director in a company may be different. This

Court further held that these persons, as the designation of their

office suggests, are in charge of a company and are responsible

for the conduct of the business of the company. To escape

liability, they will have to prove that when the offence was

committed, they had no knowledge of the offence or that they

exercised all due diligence to prevent the commission of the

offence.”

[See also: N. Rangachari v. BSNL

70

; Central Bank of India v. Asian Global

Ltd.

71

; Gunmala Sales (P) Ltd. v. Anu Mehta

72

; and Rajesh Viren Shah v.

Redington India Ltd.

73

]

50. Turning our attention to the facts of the present case once more, we find

that in opposing the stand that he is a director, the appellant submits that he, in

fact, is an uneducated person who is a munshi and whose identity has been stolen

by A-7 & A-14. That being the case, this Court cannot, at this stage, decide

69

2024 SCC OnLine SC 311

70

(2007) 5 SCC 108

71

(2010) 11 SCC 203

72

(2015) 1 SCC 103

73

(2024) 4 SCC 305

62|SLP(CRL)4866/2023

whether Section 22A applies to the appellant or not. This is once again a matter

for evidence.

CONCLUSION

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

63|SLP(CRL)4866/2023

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.

….……………… ……J.

(C.T. RAVIKUMAR)

….…………… ….…..J.

(SANJAY KAROL)

New Delhi;

September 23, 2024