Karnataka High Court
Ghayur Ahmed Jamali vs State By Cubbon Park Police on 23 July, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NOS.22854-855 OF 2017(GM-RES)
&
WRIT PETITION NO.22857 OF 2017(GM-RES)
BETWEEN:
1. GHAYUR AHMED JAMALI
S/O NASRULLA JAML JAMALI,
AGE ABOUT 24 YEARS,
R/AT SAKRI VILLAGE,
SAKRI TANE,
MADHUBHANI DISTRICT,
BIHAR STATE.
2. AFTAB ALAM @ FAROOQ
S/O SHEIK MOHAMMED AYUB,
AGE ABOUT 27 YEARS,
R/AT DINESH BALWA POST,
ADHANG JALALGARH THANA,
PURMIA DISTRICT,
BIHAR STATE. (IN W.P.NOS.22854-855/2017)
3. MOHAMMED THARIKH ANJUM AHSAN
@ TARIQ,
S/O MOIHAMMED BADRUZZAMA,
AGE ABOUT 34 YEARS,
R/AT AHMEDABAD VILLAGE,
MEHANOWDA POST,
NALANDA DISTRICT,
BIHAR STATE,
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AND RESIDENT AT
FLAT NO.F-210, F BLOCK,
ABDU FAZAL ENCLAVE - 2,
SHAHINBAGH, OKHLA,
JAMIYANAGAR,
NEW DELHI. (IN W.P.NO.22857/2017)
..PEITITONERS
(BY SRI.MOHAMMED TAHIR, ADVOCATE)
AND
1. STATE BY CUBBON PARK POLICE
BANGALORE
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX BUILDING,
BANGALORE - 560 001.
2. PRINCIPLE SECRETARY
ADMINSTRATIVE DEPT,
KARNATAKA STATE GOVERNMENT
VIDHANA SOUDHA,
BANGALORE-01.
3. DIRECTOR
DEPARTMENT OF PROSECUTION
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE - 01.
...RESPONDENTS
(BY SANDESH J.CHOUTA, AAG A/W
SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA READ WITH SECTION 482
OF CR.P.C TO QUASH THE SANCTION ORDER ISSUED BY
RESPONDENT NO.2 AT ANNEXURE B1 TO B5 IN SC NO.871/2013
(ARISING OUT OF CRIME NO.92/2010) SC NO.871/2013
(ARISING OUT OF CRIME NO.92/2010) SC NO.869/2013
(ARISING OUT OF CRIME NO.93/2010) SC NO.870/2013
(ARISING OUT OF CRIME NO.94/2010) SC 872/2013 (ARISING
OUT OF CRIME NO.95/2010) AND SC NO.868/2013 (ARISING
OUT OF CRIME NO.96/2010) RESPECTIVELY, AND
CONSEQUENTLY ALSO QUASH CHARGES IN ALL FIVE CASES
UNDER SECTIONS 13(1)(a), 13(1) (b), 16(1)(b), 18, 19, 20 of
UAPA ACT.
THESE WRIT PETITIONS ARE COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT
MADE THE FOLLOWING:-
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ORDER
Prayer made in these petitions is to quash the sanction issued by respondent No.2-Principal Secretary, Administrative Department, Karnataka State Government at Annexures B1 to B5 in S.C.Nos.871/2013, 869/2013, 870/2013, 872/2013 and 868/2013.
2. Heard learned counsel for petitioners and learned A.A.G. for respondents. Perused the records.
3. Five charge sheets came to be filed against the petitioners for the alleged offences punishable under Sections 121, 121A, 123, 201, 212, 435, 307, 120B Indian Penal Code and Section 13(1)(a), 13(1)(b), 16(1)(b), 18, 19, 20 of Unlawful Activities (Prevention) Act (hereinafter referred to as the UA(P) Act r/w. Section 120B of Indian Penal Code and Sections 4(a), 5(b) and 6 of Explosive Substance Act r/w. Section 120B Indian Penal Code and Section 4 of the Prevention of Damage of Public Property Act.
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4. Petitioners are accused Nos.3, 4 and 6 respectively. Writ petitions filed by accused Nos.5, 12 and 13 have been dismissed as having become infructuous vide order dated 18.7.2019.
5. The case of the prosecution is that A7 to 10 and A16 to 18 conspired with A5, 6, 11, 12 and 13 to wage war against Government of India by carrying out serial bomb blasts during IPL cricket match at Chinnaswamy Cricket Stadium, Bengaluru City with an intention to threaten the integrity, sovereignty, security and unity of India, to strike terror in the people, to convert India into an Islamic State by terrorist activities, to create panic, fear and intimidate the national and international investors in India and in furtherance of the said conspiracy, carried out unlawful activities and terrorist acts in India.
6. Charges were framed against the respective accused on 22.7.2016. Petitioners herein pleaded not guilty to the charges. When the matter was set down for trial, petitioners moved applications under Section 216 of Cr.P.C. seeking alteration of the charges. In the course of hearing, petitioners 6 assailed the validity of the sanction issued by the Government under Section 45 of the UA(P) Act. The Trial Court by its order dated 5.5.2017 rejected the application. The petitioners appear to have not challenged the said order instead, have preferred these petitions seeking to quash the sanction order issued in the name of the Governor, State of Karnataka.
7. Contention of the learned Counsel for the petitioners is that sanction for prosecution of the petitioners is not granted by the Authority appointed under the UP(A) Act. It is not preceded by any recommendation of the Authority as prescribed under the Act. The Principal Secretary, Administrative Department, who issued the sanction order is not the Authority appointed under the Act. This sanction is invalid and defective for the added reason that it is not granted within the time prescribed under Section 45(2)(i) of the Act and therefore, the prosecution of the petitioners on the basis of the said sanction is illegal and bad in law. Consequently, the entire proceedings are vitiated and are liable to be quashed on that score. 7
8. In support of his submission, learned counsel has placed reliance on the decision of the Orissa High Court in the case of Subhashree Das Mili Panda and Others vs. State of Orissa (2011 SCC Online Orissa 61) with emphasis on the following portion of the judgment :
"In this aspect, Learned Counsel for the petitioners placed reliance upon the speech of Hon'ble Home Minister while moving the draft bills in the Rajya Sabha and in his speech, the Hon'ble Home Minister, clearly stated that the legislative intent behind Section 45(2) of the Act was for "creating an independent executive to review the entire evidence gathered in course of investigation and then to make a recommendation whether the case was a fit for prosecution or not" . This was prescribed by the Hon'ble Home Minister in order to filter and buffer and such independent authority who was required to review the entire evidence would provide they very salutary safeguard. Such an authority independent from the investigators was the "biggest buffer against arbitrariness"
9. Per contra, the submissions of the learned AAG are that the conduct of the petitioners disentitles them for the relief 8 claimed in the petitions. Charges framed against the petitioners are not challenged and the trial has already commenced. Out of 122 witnesses cited by the prosecution, 36 witnesses have been examined in S.C.No.869/2013 and out of 151 witnesses, 42 witnesses have been examined in S.C.No.870/2013, out of 122 witnesses, 37 witnesses have been examined in S.C.No.872/2013 and out of 101 witnesses, 36 witnesses are examined in S.C.No.868/2013 and therefore, at this juncture the challenge to the sanction order is not tenable.
10. I have bestowed my careful consideration to the rival contentions urged at the Bar. A perusal of the sanction order discloses that the Governor of Karnataka has independently applied his mind to the material placed before him and has granted sanction. The said proceedings therefore, cannot be challenged in view of the Constitutional immunity provided under Article 361 of the Constitution of India whereby the Governor by his constitutional position is entitled to act upon his own discretion. These proceedings do not suffer from any illegality as sought to be contended by the learned counsel for the 9 petitioners. The Principal Secretary is merely an issuing authority and not a sanctioning authority. Even otherwise, no material is produced before this Court to show that the sanction in question is not issued in accordance with the procedure prescribed under the UA(P) Act. Contentions urged by the petitioners are based on facts and law and which could be decided only on the basis of the records of the proceedings. In the absence of any such material, contention urged by the petitioners that the requisite formalities as per Section 45(2) of UA(P) Act have not been complied is required to be substantiated only by way of evidence during trial. Therefore, reserving liberty to the petitioners to substantiate the said pleas before the trial Court, petition is disposed of.
Sd/-
JUDGE rs/sv