Trial Without Sanction Under UAPA Void: Bombay High Court

CASE TITLE:
Mahesh Kariman Tirki and Ors. Vs. State of Maharashtra and ors.

DATE OF ORDER:
29 September 2022

JUDGES:
Justice Rohit Deo and Justice Anil Pansare

PARTIES:
Appellant: Mahesh Kariman Tirki and Ors
Respondent: State of Maharashtra and ors.

SUBJECT

The Bombay High Court declared the whole trial against former DU Professor GN Saibaba and five others in a maoist-linked case exonerated under the strict UAPA because it lacked a legal authority under section 45(1) of the Unlawful Activities Prevention Act. The Maharashtra government approved the prosecution of GN Saibaba under the UAPA after the trial against him started rather than before, the bench of Justices Rohit Deo and Anil Pansare noted, rendering the entire trial illegal.

IMPORTANT PROVISIONS

Unlawful Activities Prevention Act

• Section 13 - Punishment for unlawful activities. - Whoever takes part in or commits, or advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
• Section 18 - Punishment for conspiracy, etc. - Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
• Section 20 - Punishment for being member of terrorist gang or organisation.—Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
• Indian Penal Code
• Section 120B - Punishment of criminal conspiracy. - (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

BRIEF FACTS

• Former professor GN Saibaba, farmers Mahesh Kariman Tirki (22), late Pandu Pora Narote (27), professor Hem Keshavdatta Mishra (32), journalist Prashant Rahi Narayan Sanglikar (54), and labourer Vijay Nan Tirki (30) were all charged with violating Sections 13, 18, 20, 38, and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), which is read with Section 120.
• As GN Saibaba was later apprehended, the trials of the accused were later combined. The prosecution relied on the confiscation of pamphlets and purported anti-national information in electronic form, mostly at Saibaba’s request in Gadchiroli, to support its claims that they were working for the outlawed CPI(Moist) from frontal organisations like RDF.
• According to the prosecution, Saibaba connected them with undercover members of the CPI (Maoist) and its front organisation RDF. A 16 GB memory card was also supplied to Naxalites sheltering in the Abuzmad woodland area, according to the report.
• It should be noted, however, that the bench acknowledged there was no obstacle to the prosecution’s request for freedom to retry the accused with appropriate sanctions. The court ruled that if an improper sanction tainted a trial, the principle of double jeopardy would not apply.

ISSUES RAISED

• Whether in view of the cognizance taken by the learned Sessions Judge qua accused 6-G.N. Saibaba in the absence of sanction, the subsequent proceedings are rendered void?
• Whether the sanction order dated 15-2-2014 qua accused 1 to 5 is defective?
• Whether the defects in the sanction order are curable?

ARGUMENTS ADVANCED BY THE APPELLANT

• The learned counsel on behalf of the appellant submitted that the sanction order dated 15-2-2014 issued by Mr. Amitabh Ranjan (PW19) was invalid due to lack of application of mind. In addition to the vice of non-application of mind, the penalty order dated 15-2-2014 Exhibit 17 has two more flaws that are fatal to the prosecution’s case. It was asserted that subsection (2) of Section 45 of the UAPA requires the designated authority to conduct an independent evaluation of the material gathered throughout the course of the inquiry and to present a report and recommendation to the sanctioning authority.
• It was further submitted that the legislative intent that the sanctioning authority must be aided and assisted by the review made by an independent and legally trained mind is defeated because the report of the review committee Exhibit 358 conveys only the recommendation without summary of the analysis of the evidence collected. The 2008 Rules’ deadline for making recommendations and granting sanctions was missed; therefore the sequitur had to be a declaration that the sanction order was illegal.
• In the lack of sanction, which was finally granted later on April 6, 2015, the learned Sessions Judge took cognizance, filed a charge, recorded the plea of the accused, 6-G.N. Saibaba, and started gathering evidence. According to the argument, the proceedings were invalid since the learned Sessions Judge was unable to recognise the offence in the absence of a sentence. The extension of the argument was that the lack of sanctions is a fundamental flaw that cannot be fixed, undermining the Court’s jurisdiction. It was further argued that the egregious flaw or lack of punishment cannot be fixed and that the accused need not show that the objection was raised as soon as possible or that the flaw caused bias.
• It was claimed that the sanctioning authority was not given access to the CFSL report or the call logs, which is speculative. It was also claimed that neither the sanctioning authority nor the investigating officer had engaged in any effective cross-examination on the subject. Additionally, the penalty order is self-explanatory and specifies the information in sufficient detail to demonstrate how the sanctioning body came to the conclusion that a case was made for applying sanctions.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The learned counsel on behalf of the respondent submitted that the sanctioning authority was not given access to the CFSL report or the call logs, which is speculative. It was also claimed that neither the sanctioning authority nor the investigating officer had engaged in any effective cross-examination on the subject. Additionally, the penalty order was self-explanatory and specifies the information in sufficient detail to demonstrate how the sanctioning body came to the conclusion that a case was made for applying sanctions.
• It was further submitted that he recommendation of the authority was not required to be written in a particular manner under sub-section (2) of Section 45 of the UAPA. The recommendation was based on the designated authority’s subjective satisfaction and was not justiciable. The manner in which the authority delivered the recommendation was negligible in light of reliable evidence that the authority chosen to conduct the review was given all pertinent information.
• Additionally the exercise of the sanctioning authority’s power, which is not constrained by the review authority’s recommendation, could not be contested on the spurious grounds that the review authority’s report was not comprehensive or that its summary of the analysis of the evaluation of the evidence was not discernible. The extension of the argument was that, absent a breach of justice, no inference of prejudice against the accused can be made.

JUDGMENT ANALYSIS

• The Court observed that the provisions of sub-section (2) of Section 45 of the UAPA to the extent the sanction shall be granted by the sanctioning authority only after considering the report of the appointed authority are clearly mandatory. The use of expression “only after considering the report” of such authority is a mandate that the sanctioning authority must give due consideration to the report, and to enable the sanctioning authority to be aided and assisted, the report of the authority which makes an independent review must, at the very minimum incorporate summary of the evaluation or review of the evidence gathered in the course of investigation. Any other view shall water down if not eviscerate the legislative intent of providing an additional filter or safeguard to the accused.
• According to the Bench, the legislature did not intend for the designated authority to provide a report to the sanctioning authority, and a laconic message that merely conveys the recommendation without summarising or analysing the evaluation of the evidence falls into the same category as a lack of report. Under the law, a penalty for prosecution must only be given after taking into account the report of the appointed authority, which must independently assess the evidence acquired during the course of the inquiry and offer a recommendation.
• The well-established legal doctrine holds that the sanction order should ideally be self-explanatory. Ordinarily, the face of the sanction order must include all the facts and circumstances upon which the sanction is based. To prove that the sanctioning authority took into account the pertinent facts and evidence, extraneous evidence may be introduced.
• According to the deliberative opinion of the bench, the use of the words “shall” and the prescription of a time range is meant to instill a sense of urgency in the authorities charged with carrying out statutory obligations. While the period prescribed is not mandatory in the sense that the violation vitiates the sanction given, and while ordinarily substantial compliance is required, we reiterate that the accused will have to prove some prejudice or causation of failure of justice because the time framed statutorily prescribed was not followed.
• Since the accused did not dispute the sanction order during the course of the trial based on the violation of the statutorily required time limit for making the recommendation and imposing the sanction, we are hesitant to examine the challenge to the sanction order based on the factual matrix.

CONCLUSION

It was held that in the lack of a legal sanction under Section 45(1) of the UAPA, the procedures in Sessions Trials 30/2014 and 130/2015 were null and void, and that the common judgement at issue be set aside. It was also held that if the trial is deemed tainted by the absence of sanctions or the trial’s invalidity, the prohibition against double jeopardy does not apply. Vijay Nan Tirki, the fifth accuser, is free on bail after his bail bond was satisfied. Unless their detention is needed in another case, accused number one Mahesh Kariman Tirki, accused number three Hem Keshavdatta Mishra, accuser number four Prashant Rahi Nrayan Sanglikar, and accused number six G.N. Saibaba are to be freed from custody right away. In accordance with Section 437-A of the Code of 1973, the appellants must each execute a bond for Rs. 50,000 with a guarantor for the same amount, to the satisfaction of the trial court. The appeals are dismissed under the outlined conditions.

Click here to download the original copy of the judgement

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE