Sanction for prosecution under UAPA or IPC stands vitiated if it is not granted within stipulated time, and with application of mind: Kerala HC

The Kerala High Court strictly construes the provisions of the statute, in order to make the restriction on the fundamental rights guaranteed under the Constitution reasonable.

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A division bench of Justices K. Vinod Chandran and C. Jayachandran of the Kerala High Court on March 17 handed down a significant judgment in the context of the prosecution of the offences under the Unlawful(Prevention) Activities Act[UAPA]. The bench held that the stipulation of time to grant sanction for prosecution under the UAPA is a mandatory and sacrosanct requirement and failure to adhere to it, will vitiate the sanction order. Besides, the bench ruled that though Section 45(2) of the UAPA makes it mandatory for the 'Authority' to make an independent review of the evidence gathered in the course of the investigation and make a recommendation within such time as prescribed, to the Government, it does not absolve the latter from applying its mind before passing a final order of according or refusing the sanction.

The bench was ruling on a revision petition filed by one Roopesh who is alleged to be a member of the Communist Party of India [Maoist] which is a proscribed organisation under the UAPA. He was charged under Sections 143[Unlawful assembly], 147[rioting], 148[Rioting, armed with deadly weapon], 124A[Sedition] read with 149[Every member of unlawful assembly guilty of offence committed in prosecution of common object.] IPC and Section 20[Punishment for being member of terrorist gang or organisation] and 38[Offence relating to membership of a terrorist organisation.] of the UAPA. Before the high court, he contended that the sanction granted to prosecute him was not valid on account of the breach of the stipulated time limit under the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008[Rules of 2008] and as a consequence, the cognisance taken by the Special Court stood vitiated.

The case involved the interpretation of Section 45 of the UAPA, in particular, Section 45(2). Section 45 bars a court from taking any cognisance of the offence under UAPA without the previous sanction of the Central Government or the state government, as the case may be. In the present case, the appropriate government was the state government.

The 2008 Rules framed under the UAPA prescribes a specific time of seven days within which the Authority has to make a recommendation, after which the  Government also has to issue a sanction within seven more days. In the present case, the sanction was accorded by the state government after six months from the date of receipt of the recommendation of the authority.

Holding the sanction order having been vitiated not only on account of the delay but also on non-application of mind by the state government, the high court gave three-fold reasons for its conclusion.

Firstly, the Court gave the literal interpretation to the word "shall" in Section 45(2) and the 2008 Rules. It held "The word 'shall' in the context of the UA(P)A & the Rules of 2008, cannot be said to be merely directory". 

Secondly, the Court gave the contextual interpretation to the provisions of the UAPA. It took note of the drastic provisions of the UAPA such as the investigating agency is given wider latitude in so far as the time frame for completing the investigation which in turn makes it more rigorous for the accused, which is made further harsh by the restrictions in granting bail as found in sub-sections (5) & (6) of Section 43-D. Besides, there is a reversal of the presumption of innocence. In addition, the UAPA has an overriding effect on other laws. It is in this view, the high court observed: "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". Thus, the high court strictly construed the time limit requirement.

Thirdly, the Court held the sanction is of the Government and not the Authority and the recommendation of the Authority only aids or assists the Government in arriving at the satisfaction. It thus held that the government has to arrive at satisfaction without merely adopting the recommendation of the Authority. It made these findings because, on facts of the present case, it found that the sanction order merely referred to the records of investigation in the respective crimes, the letter of the State Police Chief and the recommendation of the authority constituted under Section 45 of the UAPA, and did not disclose independent application of mind by the government.

The Court cited precedents to opine that the sanction for prosecution is a solemn and sacrosanct act that requires the sanctioning authority to look at the facts and arrive at the satisfaction, of the requirement of a prosecution.

The Court found the sanction to prosecute for Section 124A IPC also invalid on account of the non-application of mind by the state government.