Jharkhand High Court
Binod Kumar Pandey @ Vinod Kumar Pandey vs The State Of Jharkhand on 18 December, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 283 of 2024
Binod Kumar Pandey @ Vinod Kumar Pandey,
aged about 52 years, son of Late Kamta Pandey,
resident of village- Sildaha, P.O. & P.S.- Jori,
District- Chatra, Jharkhand.
..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Secretary, Home, R/O Project Bhawan, P.O.
Dhurwa, P.S. Jagannathpur, Dist- Ranchi.
3. The Deputy Superintendent of Police cum
Investigating Officer, Anti Terrorist Squad, R/O-
Police House, P.O. Dhurwa, P.S. - Jagannathpur,
Dist.- Ranchi.
..... ... Respondents
with
W.P.(Cr.) No. 476 of 2023
Kumar Shivendra @ Shiv Sharma @ Raju Sharma
aged about 27 years, son of Aman Kumar Ishwar,
resident of Village- Shivri, P.O. & P.S.-Bariyarpur,
District-Begusarai (Bihar).
..... ... Petitioners
Versus
1. The State of Jharkhand.
2. The Director General of Police, Jharkhand,
Situated at Jharkhand Police Headquarters,
Dhurwa, P.O. & P.S.-Dhurwa, District- Ranchi.
3. The Superintendent of Police, Ramgarh, P.O.&
P.S-Ramgarh, District-Ramgarh.
4. The Officer-In-Charge, Mandu P.S.. P.O. & P.S.
Mandu, District- Ramgarh.
..... ... Respondents
with
W.P.(Cr.) No. 279 of 2024
Siddharth Sahu, aged about 32 years, Son of Manoj
Kumar Sahu, resident of House No. 78/B, Burdwan
Compound, Kali Mandir Road, Shree Ambika
-1- W.P.(Cr.) No. 283 of 2024
and its analogous cases
Apartment, P.O.- G.P.O. & P.S.- Lalpur, District-
Ranchi, Jharkhand (834001).
..... ... Petitioners
Versus
1. The State of Jharkhand through its Principal
Secretary, Department of Home, Jail and Disaster
Management, having its office at 2nd Floor, Project
Bhawan, P.O & P.S- Dhurwa, Dist.- Ranchi
(Jharkhand).
2. Secretary, Department of Law, having its office
at Project Bhawan, P.O & P.S- Dhurwa, Dist.
Ranchi (Jharkhand).
3. Director General of Police, Jharkhand, having its
office at Police Headquarters, Dhurwa, P.O. & P.S.
Dhurwa Town and District - Ranchi (Jharkhand).
4. Additional Director General of Police Law &
Order, Jharkhand having its office at Police
Headquarters, Dhurwa, P.O. & P.S. Dhurwa Town
and District Ranchi (Jharkhand).
5. Deputy Commissioner, Ranchi, having its office
at DC office, P.O & P.S- Kutchery, Dist.- Ranchi,
Jharkhand.
6. Sr. Superintendent of Police, Ranchi, having its
office at S.S.P office, P.O & P.S- Kutchery, Dist.-
Ranchi, Jharkhand.
7. Officer-in-charge, ATS Ranchi having its office
at Dhurva, P.O & PS - Dhurva, Dist. Ranchi
(Jharkhand).
8. Investigating officer, ATS Ranchi having its
office at Dhurva, P.O & PS - Dhurva, Dist.- Ranchi
(Jharkhand).
..... ... Respondents
with
W.P.(Cr.) No. 419 of 2024
1. Anand Pareekh, aged about 44 years, S/o Asha
Ram Pareekh, R/o Ward No. 40, Kalubass, PO &
PS Shridunagargarh, District Bikaner, Rajasthan.
-2- W.P.(Cr.) No. 283 of 2024
and its analogous cases
2. Sunil Kumar Sharma, aged about 29 years, S/o
Brij Lal Sharma, R/o Village Hemasar, PO & PS
Shridunagargarh, District Bikaner, Rajasthan.
3. Anil Sharma, aged about 27 years, S/o Tilok
Ram Sharma, R/o Village Moondar, PO & PS
Nokha, District Bikaner, Rajasthan.
4. Anil Kumar Sharma, aged about 30 years, S/o
Brij Lal Sharma, R/o Village Hemasar, PO & PS
Shridunagargarh, District Bikaner, Rajasthan.
..... ... Petitioners
Versus
1. State of Jharkhand through ATS Ranchi, situated
at PO & PS Dhurwa, District Ranchi.
2. Department of Home, Jail and Disaster
Management through its Principal Secretary,
situated at Project Bhawan, PO & PS Dhurwa,
District Ranchi, Jharkhand.
3. Department of Law, through its Secretary
situated at Project Bhawan, PO & PS Dhurwa,
District Ranchi, Jharkhand.
4. Deputy Commissioner, Ranchi having its office
at Kutchery Road, PO GPO, PS Kotwali, District
Ranchi, Jharkhand.
5. DGP Jharkhand, having its office at Police
Headquarters, PO & PS Dhurwa, District Ranchi,
Jharkhand.
..... ... Respondents
with
W.P.(Cr.) No. 676 of 2024
Md. Ariz Hasnain alias Ariz Hasnain, aged about
21 years, S/o Quaiser Hasnain, R/o 18, Asanbani,
Rehmatnagar, Mahmood Nagar, PO & PS-Godda,
District Godda, Jharkhand.
..... ... Petitioners
Versus
1. State of Jharkhand through ATS, Jharkhand,
situated at PO & PS Dhurwa, District Ranchi.
2. Department of Home, Jail and Disaster
-3- W.P.(Cr.) No. 283 of 2024
and its analogous cases
Management through its Principal Secretary,
situated at Project Bhawan, PO & PS Dhurwa,
District Ranchi, Jharkhand.
3. Department of Law, through its Principal
Secretary situated at Project Bhawan, PO & PS
Dhurwa, District Ranchi, Jharkhand.
4. Deputy Commissioner, Ranchi having its office
at Kutchery Road, PO GPO, PS Kotwali, District
Ranchi, Jharkhand.
5. DGP Jharkhand, having its office at Police
Headquarters, PO & PS-Dhurwa, District Ranchi,
Jharkhand.
..... ... Respondents
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioners : Mr. Jitendra Shankar Singh, Advocate.
[in W.P.(Cr.) Nos. 283 of 2023 & 476 of 2023] : Mr. Indrajit Sinha, Advocate.
: Mrs. Shruti Shreshtha, Advocate.
[in W.P.(Cr.) No. 279 of 2024]
: Mr. Shailesh Poddar, Advocate.
[in W.P.(Cr.) Nos. 419 and 676 of 2024] For the State : Mr. Jai Prakash, A.A.G.-IA.
: Mr. A.K. Geasen, A.C. to A.A.G.-IA [in W.P.(Cr.) Nos. 279 and 676 of 2024] : Mr. Achyut Keshav, A.A.G.-V. : Mr. Shubham Gautam, A.C. to A.A.G.-V [in W.P.(Cr.) Nos. 283 of 2024 and 476 of 2023] : Mr. Deepankar, A.C. to G.A.-III [in W.P.(Cr.) No. 419 of 2024]
------
C.A.V. on 09.12.2024 Pronounced on 18.12.2024 In all these writ petitions, common question of fact and law are involved in view of that all these writ petitions have been heard together with the consent of the respective parties.
2. Heard Mr. Jitendra S. Singh, Mr. Indrajit Sinha and Mr. Shailesh Poddar, learned counsel appearing for the petitioners and Mr. Jai Prakash, Mr. Achyut Keshav and Mr. Deepankar, learned counsel appearing for the respondents-State in respective cases. W.P.(Cr.) No. 283 of 2024.
3. Prayer in this writ petition is made for quashing of the order dated 14.03.2024, passed in ATS Case No. 01 of 2022 by the -4- W.P.(Cr.) No. 283 of 2024 and its analogous cases learned AJC-XVIII-Cum-Special Judge, ATS, Ranchi, whereby the petition filed by the prosecution for taking cognizance for the offences under Sections 16, 17, 18, 20 and 21 of The Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as UAP Act] has been taken and further for a direction to direct the accused persons to join the trial by amalgamating the supplementary records, the case is pending before the court of learned AJC-XVIII- Cum-Special Judge, ATS, Ranchi.
4. The prosecution case is that one Luv Kumar Singh, Police Inspector, ATS Ranchi, has lodged a FIR alleging therein that he received a secret information that gangster Aman Srivastava along with his other criminal associates including the present petitioner were involved in extorting illegal money from businessman and use to transfer that illegal money to Hawala Channels, and spreading terror in and around the Jharkhand state. It is further stated in the FIR that the informant constituted a special team to carry out raids in different locations associated with Aman Srivastava gang and its members. During their raids on 16.01.2022 the police personnel entered into the house of the petitioner Binod Kumar Pandey and recovered illegal cash of around 5,42,000/- from the possession of the petitioner which he has obtained from Aman Srivastava's associates and hence this FIR.
W.P.(Cr.) No. 476 of 2023.
5. Prayer in this writ petition is made for a direction to release the petitioner forthwith, who is lying in judicial custody, in connection with Mandu (W.B.) P.S. Case No. 236 of 2021, on the ground that the petitioner has been remanded in the said case without taking cognizance of the offences after submission of the chargesheet, the case is pending in the court of learned Additional Chief Judicial Magistrate, Ramgarh.
6. The FIR was lodged alleging therein that one Shyamal Mukharjee has submitted a written report alleging therein that the manager of his company received a call on his mobile whereby threatening has been given to close his office at Ramgarh and not to -5- W.P.(Cr.) No. 283 of 2024 and its analogous cases work without managing Aman Srivastava. Similar threatening calls were made to the other companies also. On 27.11.2021 at about 12.15 P.M. while the officials were in consultation one miscreant entered into the office and exploded bomb. The informant also heard the sound of several explosion and firing. After some time when they came out Informant found injuries on his back and left thigh further several others also got injured. The security guard informed that four persons came on motorcycle and they exploded bomb and made firing. The miscreants also left one pamphlet wherein it was mentioned that without managing Aman Srivastava no work can be done.
W.P.(Cr.) No. 279 of 2024.
7. Prayer in this writ petition is made for quashing of the letter dated 03.10.2023 as contained in Memo No. 361 (Annexure-
11), whereby, the respondent No. 2 has granted the sanction for prosecution against the petitioner for the offences under Sections 16, 17, 18, 20 and 21 of the UAP Act, in connection with A.T.S. P.S. Case No. 01 of 2022. Further prayer is made for stay of the entire criminal proceedings, the case is pending in the court of learned AJC-XVIII-Cum-Special Judge, ATS, Ranchi.
8. FIR being ATS Ranchi P.S case No. 01 of 2022 was instituted by Respondent ATS against the Petitioner and other accused persons. The expose of the prosecution case is that the informant of the case is posted as police inspector at ATS. On 15/1/2022 the Superintendent of Police gave secret information that Aman Shrivastav in connivance with others is extorting money from businessmen who were carrying on their business in coal and other businesses. It was further revealed that Aman Shrivastav is involved in such illegal activities and is procuring the said amount through Hawala.
W.P.(Cr.) No. 419 of 2024.
9. Prayer in this writ petition is made for quashing of the letter dated 03.10.2023 as contained in Memo No. 361 (Annexure-
7), whereby sanction for prosecution has been given against the -6- W.P.(Cr.) No. 283 of 2024 and its analogous cases petitioners for the offences under Sections 16, 17, 18, 20 and 21 of the UAP Act, arising out of A.T.S. Ranchi Case No. 01 of 2022, the case is pending in the court of learned Special Judge, ATS, Ranchi.
10. The case of the prosecution is based on the Singh self- statement of the informant namely, Luv Kumar Singh, Officer in- charge, A.T.S that on 15.01.2022 at around 10:45, the Superintendent of Police, A.T.S received secret information that the absconding criminal Aman Srivastav along with other accused persons namely 1. Abhik Srivastav, 2. Manjari Srivastav, 3. Chandraprakash Ranu, 4. Siddharth Sahu, 5. Asley Lakda, 6. Prince Raj and his other associates, 7. Vinod Pandey, 8. Amjad Khan, 9. Zaheer Ansari, 10. Mahmood alias Nepali, 11. Aslam, 12. Firoz Khan and others extorts huge amounts of money from businessmen and keep it with him through the medium of hawala. It is further alleged that Siddharth Sahu is in possession of huge amounts of extorted money that he intends to send to Aman Srivastav and Abhik Srivastav through hawala and they plan on extorting other people to create an atmosphere of fear and panic. Upon receiving the secret information, a special team was formed. The raiding party caught one person namely Sanjay Karmarkar who claimed himself to be the bodyguard of Prince Raj. A revolver and 06 live bullets, 04 rounds 32 bore and 02 rounds 7.65 bore were recovered from the possession of Sanjay Karmakar. When Mr. Sanjay Karmakar was asked to produce the license and papers for the gun and bullets, he produced a license issued in Jammu and Kashmir for the gun and 32 bullets. A case under the Arms Act was registered against him on 17.01.2022. Further on 16.01.2022 at around 23:40 pm, a raid was conducted at the house of Siddharth Sahu wherein Rs. 28 Lakh 88 thousand were recovered from the almirah of his house. Upon questioning he disclosed that before this he had received huge amounts of money on the instructions of Manjari Srivastav and Abhik Srivastav through Pintu. He used to give the money to Sunil or his other associates who would then deliver the same in the bank accounts of Aman Srivastav through hawala or other means. Aman Srivastav after the -7- W.P.(Cr.) No. 283 of 2024 and its analogous cases death of his father Sushil Srivastav who was an infamous gangster of Jharkhand runs his gang along with his brother Abhik Srivastav, sister Manjari Srivastav and brother-in-law Chandraprakash Sahu. Other than the brother and sister of Aman Srivastav, 1. Ashley Lakra,
2. Prince Raj. 3. Vinod Kumar Pandey, 4. Amjad Khan, 5. Zaheer Ansari, 6. Mahmood alias Nepali, 7. Aslam, 8. Firoz Khan were involved in the criminal activities and extortion racket of Aman Srivastav. During the raid at the house of Vinod Kumar Pandey on 16.01.2022 at around 22:50 pm, 100 notes of Rs. 2000 and 684 notes of Rs. 500, a total of Rs. 5,42,000/-were recovered. Upon asking the source of the recovered money from Vinod Kumar Pandey, he confessed that he is an active member of the gang of Aman Srivastav and the recovered money was gained through extortion which he was supposed to deposit in the bank accounts of Aman Srivastav and Abhik Srivastav through hawala. Accordingly, a case against Aman Srivastav and his other associates namely 1. Abhik Srivastav, 2. Manjari Srivastav, 3. Ashley Lakda, 4. Prince Raj, 5. Vinod Kumar Pandey, 6. Amjad Khan. 7. Zaheer Ansari, 8. Mahmood alias Nepali, 9. Aslam, 10. Firoz Khan, 11. Sidharth Sahu, 12. Chandraprakash Sahu, 13. Pintu, and 14. Sunil was registered. W.P.(Cr.) No. 676 of 2024.
11. Prayer in this writ petition is made for quashing of the sanction order dated 14.05.2024 (Annexure-3), whereby, the sanction for prosecution against the petitioner for the offences under Sections 16, 18, 38(2) and 39(2) of the UAP Act has been given, in connection with A.T.S. P.S. Case No. 13 of 2023. Further prayer is made for stay of the entire criminal proceedings, the case is pending in the court of learned Special Judge, ATS, Ranchi.
12. The FIR was lodged alleging therein that the police station in charge of the anti-terrorism squad (ATS), Ranchi, Jharkhand namely Luv Kumar Singh received secret information on 02.11.2023 that the present Petitioner is promoting the activities of ISIS through social media and also misleading innocent people and linking them with the organization. Thereafter upon the direction of -8- W.P.(Cr.) No. 283 of 2024 and its analogous cases the senior official, the informant started investigation and during the investigation, a suspicious chat was found in his telegram on his mobile which he told belonged to another person namely Mohd. Naseem, who is associated with the terrorist organization and sent him books like Jihad and Kufr Beeth Tagoot. It is alleged that the Petitioner started watching banned videos of various organizations through social media. It is alleged that incriminating photos and videos were found in his mobile phone. In this form, being a member of a banned terrorist organization, anti-national organization, propagating collecting funds, activities, creating the conducting tension between two communities, sending messages among different people, glorifying the members terrorist organizations, falls etc. criminal offences. Hence the present FIR.
13. Mr. Jitendra S. Singh, learned counsel appearing for the petitioners in W.P.(Cr.) No. 283 of 2024 and W.P.(Cr.) No. 476 of 2023 has submitted that by the orders dated 20.12.2022 and 21.03.2023, the request made for sanction was rejected twice, which is contained in Annexure-3 series. He submits that by way of Annexure-7 by the impugned order dated 03.10.2023, the sanction has been granted by the Principal Secretary-Cum-Law, Government of Jharkhand. He further submitted that in absence of no fresh recommendation, the said sanction has been granted. He then submitted that who is the competent authority of granting sanction is not clear. By way of drawing the attention of the court to Section 45 of the UAP Act, he submitted that in light of the said Section, no court can take cognizance in absence of previous sanction by the appropriate authority. He further draws the attention of the court to Rule 2(1)(b) of The Unlawful Activities (Prevention, Recommendation and Sanction of Prosecution) Rules, 2008 and submitted that the authority means the Authority to be appointed by the Central Government in light of sub-Section (2) of Section 45 of UAP Act. By way of referring the said Rule, he submitted that whether the authority is competent to sanction, it is not clear. He further refers to Rules 3 and 4 of the said Rule and submitted that -9- W.P.(Cr.) No. 283 of 2024 and its analogous cases there is time limit for making the recommendation by the authority and further time is prescribed under Rule-4 for sanction of prosecution. By way of referring two Rules, he submitted that the recommendation should be within seven working days of the receipt of the evidence gathered by the investigating officer under the Code and within seven working days of the sanction of prosecution. He further submitted that belatedly the sanction was granted which is not in accordance with the law, in view of these facts, the order of sanction and order dated 14.03.2024, passed by the learned Special Court, ATS, Ranchi is violative, in view of that these orders may kindly be quashed. He relied in the case of Fuleshwar Gope Versus Union of India & Ors., reported in 2024 SCC OnLine SC 2610, where in para-33, the Hon'ble Supreme Court has held as under:-
"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 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 -10- W.P.(Cr.) No. 283 of 2024 and its analogous cases 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 separation of powers.
We find support for our view in the Constitution Bench decision in A.R. Antulay v. Ramdas Sriniwas Nayak, 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; Institute of Chartered -11- W.P.(Cr.) No. 283 of 2024 and its analogous cases Accountants of India v. Price Waterhous*;
and Shiv Shakti Coop. Housing Society v. Swaraj Developers] 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.
14. Relying on the above para, he submitted that the strict construction of timeline is required to be followed, as has been held by the Hon'ble Supreme court , in view of that the orders of the learned court must go.
15. Mr. Indrajit Sinha, learned counsel appearing for the petitioner in W.P.(Cr.) No. 279 of 2024 has adopted the argument of Mr. Singh and further added by way of referring Sub-Section (2) of Section 45 of the UAP Act and submitted that in absence of review committee recommendation, Sanction is bad. He also relied on the same judgment of Fuleshwar Gopa (supra). He submitted that in absence of any new material, the sanction has been provided, which is against the mandate of law. He relied in the case of The State of Telangana Versus C. Shobha Rani in Criminal Appeal No. 4954 of 2024, wherein the Hon'ble Apex Court in para-5, it has been held as follows:-
"5. On the issue qua sanction, we are in agreement with the views expressed by the High Court. The subsequent sanction was given based on the same material, therefore, in the absence of any other contra material which weighed in the -12- W.P.(Cr.) No. 283 of 2024 and its analogous cases mind of the sanctioning authority, the same cannot be sustained in the eye of law. However, we find force in the other submission made by learned senior counsel for the appellant that the High Court did not even go into the charges pertaining to Sections 420, 467, 468, 471 and 1298 of the IPC. We are also in agreement with the submission made by learned senior counsel appearing for the appellant that there is no need for grant of sanction under Section 197 of IPC."
16. Mr. Indrajit Sinha, learned counsel appearing for the petitioner has further relied in the case of Sanjay Dutt Versus State through C.B.I. Bombay (II), reported in (1994) 5 SCC 410 and he refers to paras-13 to 17, which are as under:-
"13. The TADA Act was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto in the background of escalation of the terrorist and disruptive activities in the country. There is also material available for a reasonable belief that such activities are encouraged even by hostile foreign agencies which are assisting influx of lethal and hazardous weapons and substances into the country to promote escalation of these activities. The felt need of the times is, therefore, proper balancing of the interest of the nation vis- a-vis the rights of a person accused of an offence under this Act. The rights of a person found in unauthorised possession of such a weapon or substance in this context, to prove his innocence of involvement in a terrorist or disruptive activity, is to be determined.
14. The construction made of any provision of this Act must, therefore, be to promote the object of its enactment to -13- W.P.(Cr.) No. 283 of 2024 and its analogous cases enable the machinery to deal effectively with persons involved in, and associated with, terrorist and disruptive activities while ensuring that any person not in that category should not be subjected to the rigours of the stringent provisions of the TADA Act. It must, therefore, be borne in mind that any person who is being dealt with and prosecuted in accordance with the provisions of the TADA Act must ordinarily have the opportunity to show that he does not belong to the category of persons governed by the TADA Act. Such a course would permit exclusion from its ambit of the persons not intended to be covered by it while ensuring that any person meant to be governed by its provisions, will not escape the provisions of the TADA Act, which is the true object of the enactment. Such a course while promoting the object of the enactment would also prevent its misuse or abuse. Such a danger is not hypothetical but real in view of serious allegations supported by statistics of the misuse of provisions of the TADA Act and the concern to this effect voiced even by the National Human Rights Commission.
15. It is the duty of courts to accept a construction which promotes the object of the legislation and also prevents its possible abuse even though the mere possibility of abuse of a provision does not affect its constitutionality or construction. Abuse has to be checked by constant vigilance and monitoring of individual cases and this can be done by screening of the cases by a suitable machinery at a high level. It is reported that in some States, after the decision of this Court in Kartar Singh [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] , high-powered committees have been constituted for screening all such cases. It is hoped that -14- W.P.(Cr.) No. 283 of 2024 and its analogous cases this action will be taken in all the States throughout the country. Persons aware of instances of abuse, including the National Human Rights Commission, can assist by reporting such instances with particulars to that machinery for prompt and effective cure. However, that is no reason, in law, to doubt its constitutionality or to alter the proper construction when there is a felt need by Parliament for enacting such a law to cope with, and prevent terrorist and disruptive activities threatening the unity and integrity of the country.
16. The settled rule of construction of penal provisions is, that "if there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction and if there are two reasonable constructions, we must give the more lenient one"; and if "two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty". (See London & North Eastern Rly Co.v. Berriman [(1946) 1 All ER 255, 270 (HL)] ; TolaramRelumal v. State of Bombay [(1955) 1 SCR 158 : AIR 1954 SC 496 : 1954 Cri LJ 1333] and State of M.P. v. Azad Bharat Finance Co. [1966 Supp SCR 473 : AIR 1967 SC 276 : 1967 Cri LJ 285] )
17. Applying the settled rule of construction of penal statutes in Niranjan Singh Karam Singh Punjabi v. JitendraBhimrajBijjaya [(1990) 4 SCC 76 : 1991 SCC (Cri) 47] , a Division Bench of this Court speaking through one of us (Ahmadi, J.) construing certain provisions of the TADA Act reiterated the principle thus : (SCC pp. 85-86, para 8) -15- W.P.(Cr.) No. 283 of 2024 and its analogous cases "The Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also; make confessional statements made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses (a) to (d) of sub-section (1) of Section 21. Provision is also made in regard to the identification of an accused who is not traced through photographs.
There are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism.
These provisions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. There can, therefore, be no doubt that the legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same. The legislature, therefore, made special provisions which can in certain respects be said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly construed.
*** Therefore, when a law visits a person with serious penal consequences extra care -16- W.P.(Cr.) No. 283 of 2024 and its analogous cases must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law."
With respect, we fully concur with the above perception for construing the provisions of the TADA Act.
17. Relying on the above judgments, he submitted that if the statute provides certain way, the provision is required to be followed in strict way, in view of the settled rule of construction of penal provision. On these grounds, he submitted that the orders are bad in law, in view of that, those orders may kindly be quashed.
18. Mr. Shailesh Poddar, learned counsel appearing for the petitioners in W.P.(Cr.) Nos. 419 and 676 of 2024 has also adopted the arguments of Mr. Jitendra S. Singh and Mr. Indrajit Sinha and further added by way of relying the case of Ashraf Khan @ Babu Munne Khan & Ors. Versus State of Gujarat, reported in MANU/SC/0790/2012 / (2012) 11 SCC 606. He refers to Paras- 32, 43 and 46, which are as under:-
32. Another question which needs our attention is the effect of approval dated 15th of June, 1994 given by the Additional Chief Secretary, Home Department of the State. Section 20-A of TADA authorises the District Superintendent of Police to grant approval for recording the offence and Additional Chief Secretary of the Home Department or for that matter, State Government does not figure in that. The legislature has put trust on the District Superintendent of Police and therefore it is for him to uphold that trust and nobody else. Hence approval by the Additional Chief Secretary is inconsequential and it will not save the prosecution on this count, if found vulnerable otherwise. We may however observe that in order to prevent the abuse of TADA, the State Government may put other conditions and prescribe -17- W.P.(Cr.) No. 283 of 2024 and its analogous cases approval by the Government or higher officer in the hierarchy but the same cannot substitute the requirement of approval by the District Superintendent of Police. Not only this, the District Superintendent of Police is obliged to grant approval on its own wisdom and outside dictate would vitiate his decision.
This view finds support from the decision of this Court in the case of Anirudhsinhji Karansinhji Jadeja (Supra).
43. We appreciate the anxiety of the police officers entrusted with the task of preventing terrorism and the difficulty faced by them. Terrorism is a crime far serious in nature, more graver in impact and highly dangerous in consequence. It can put the nation in shock, create fear and panic and disrupt communal peace and harmony. This task becomes more difficult when it is done by organized group with outside support. Had the investigating agency not succeeded in seizing the arms and explosives, the destruction would have been enormous.
However, while resorting to TADA, the safeguards provided therein must scrupulously be followed. In the country of Mahatma, "means are more important than the end". Invocation of TADA without following the safeguards resulting into acquittal gives an opportunity to many and also to the enemies of the country to propagate that it has been misused and abused. District Superintendent of Police and Inspector General of Police and all others entrusted with the task of operating the law must not do anything which allows its misuse and abuse and ensure that no innocent person has the feeling of sufferance only because "My name is Khan, but I am not a terrorist".
46. In the result, we allow the appeals preferred by those accused who have been convicted and sentenced by the Designated -18- W.P.(Cr.) No. 283 of 2024 and its analogous cases Court and set aside the judgment and order of their conviction and sentence.
However, we dismiss the appeals preferred by the State against the inadequacy of sentence and acquittal of some of the accused persons.
19. Relying on the above judgment, he submitted that there is non-compliance of the statutory provision, as such the impugned orders will not survive. He further added that the procedure prescribed in the Act has not been followed. On these grounds, he submitted that these orders may kindly be quashed.
20. Per Contra, Mr. Jai Prakash, learned A.A.G.-IA, appearing for the respondents-State has opposed the prayer and submitted that these arguments can only be appreciated in the trial and that cannot be a subject matter of Article 226 of the Constitution of India. He submitted that in light of The National Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act) the definition of Section 2(1)(f) is "schedule" means the schedule to this Act. By way of referring the Schedule, he submitted that UAP Act is also coming under the Schedule offence under the NIA Act. By way of further referring definition 2(1)(i), he submitted that in light of this the expression used but not defined in this Act the Code will apply. He submitted that in view of the above, the Cr.P.C. is also applicable in the case, arising out of the UAP Act. He further refers to Sub- Sections (4), (5) and (6) of Section 6 of the NIA Act and submitted that where the Central Government is of the opinion that the offence is a Scheduled Offence, can be transferred to the competent Government in the case registered under Section 154 of the Cr.P.C.
21. By way of referring Section-4 of the Cr.P.C. he submitted that the procedure prescribed therein is to be followed. He further submitted that the NIA Act does not provide procedure, in view of that the procedure of Cr.P.C. is being followed.
22. By way of referring the FIR, contained in Annexure-1 in W.P.(Cr.) No. 279 of 2024, which is registered under Section 154 of the Cr.P.C. is there and in light of Annexure-3, he submitted that the -19- W.P.(Cr.) No. 283 of 2024 and its analogous cases report is there that is under the Cr.P.C. He submitted that the once the offence either under the NIA Act or under the UAP Act, the Cr.P.C. is also applicable. He relied in the case of State of Bihar & Ors. Versus Rajmangal Ram, reported in (2014) 11 SCC 388 and he refers to Paras-3, 6, 7, 8 and 9, which are as under:-
"3. Though the learned counsel for both sides have elaborately taken us through the materials on record including the criminal complaints lodged against the respondents; the pleadings made in support of the challenge before the High Court, the respective sanction orders as well as the relevant provisions of the Rules of Executive Business, we do not consider it necessary to traverse the said facts in view of the short question of law arising which may be summed up as follows:
"Whether a criminal prosecution ought to be interfered with by the High Courts at the instance of an accused who seeks mid- course relief from the criminal charges levelled against him on grounds of defects/omissions or errors in the order granting sanction to prosecute including errors of jurisdiction to grant such sanction?"
6. In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State v. T. -20- W.P.(Cr.) No. 283 of 2024 and its analogous cases Venkatesh Murthy [(2004) 7 SCC 763 :
2004 SCC (Cri) 2140 (paras 10 and 11)] wherein it has been inter alia observed that : (SCC p. 767, para 14) "14. ... Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice."
(emphasis supplied)
7. The above view also found reiteration in Parkash Singh Badal v. State of Punjab [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193 (para 29)] wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193 (para 29)] it was further held that Section 19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan v. CBI [(2009) 11 SCC 737 : (2010) 1 SCC (Cri) 164] . In fact, a three-Judge Bench in State of M.P. v. Virender Kumar Tripathi [(2009) 15 SCC 533 : (2010) 2 SCC (Cri) 667] while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the PC Act, interdicting a criminal proceeding mid-course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, -21- W.P.(Cr.) No. 283 of 2024 and its analogous cases omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led (para 10 of the report).
8. There is a contrary view of this Court in State of Goa v. Babu Thomas [(2005) 8 SCC 130 : 2005 SCC (Cri) 1995] holding that an error in grant of sanction goes to the root of the prosecution. But the decision in Babu Thomas [(2005) 8 SCC 130 : 2005 SCC (Cri) 1995] has to be necessarily understood in the facts thereof, namely, that the authority itself had admitted the invalidity of the initial sanction by issuing a second sanction with retrospective effect to validate the cognizance already taken on the basis of the initial sanction order. Even otherwise, the position has been clarified by the larger Bench in State of M.P. v. Virender Kumar Tripathi [(2009) 15 SCC 533 :
(2010) 2 SCC (Cri) 667] .
9. In the instant cases the High Court had interdicted the criminal proceedings on the ground that the Law Department was not the competent authority to accord sanction for the prosecution of the respondents.
Even assuming that the Law Department was not competent, it was still necessary for the High Court to reach the conclusion that a failure of justice has been occasioned. Such a finding is conspicuously absent rendering it difficult to sustain the impugned orders [Rajmangal Ram v. State of Bihar, Criminal Writ No. 487 of 2011, order dated 23-3-2012 (Pat)] , [Shankar Prasad v. State of Bihar, Criminal Misc.
No. 44151 of 2008, order dated 3-3-2011 (Pat)] of the High Court."
23. Relying on the above judgment, he submitted that the sanction and any matter arising out of the sanction can only be -22- W.P.(Cr.) No. 283 of 2024 and its analogous cases appreciated in the trial and when the trial is proceeded and something is coming then only the court can examine the same.
24. Mr. Jai Prakash, learned counsel appearing for the respondent-State submitted that relying on the several judgments, the Bombay High Court in the case of Pragya Singh Chandrapalsingh Thakur Versus State of Maharashtra, through National Investigating Agency (MA) New Delhi, reported in 2017 SCC OnLine Bom 493, in para-81, it has been held as under:-
"81. Therefore, what follows from the discussion of above decisions is that, it depends upon the nature of objection raised to the Sanctioned Order as to when it can be decided. In this respect, one can safely place reliance on the Judgment of our own High Court in Anil Sadashiv Nanduskar v. State of Maharashtra, Laws (Bom) -2007-11-96, cited by learned counsel for Intervenor. In this case, the 'sanction' granted under the provisions of Section 21A and 23(2) of the MCOC Act was challenged on the ground that concerned authorities had not applied the mind properly. It was contended that the letter of approval did not disclose the material placed before the Sanctioning Authority and the Sanction Order, ex-facie, did not disclose that the concerned authority has considered as to whether the Appellant was member of the alleged syndicate involved in commission of the offence. While dealing with these submissions, after taking into consideration the law laid down by the Hon'ble Apex Court in various authorities, the Division Bench of this Court was pleased to observe as follows:--
"The settled law by a catena of decisions of Apex Court is to the effect that it is desirable that every order -23- W.P.(Cr.) No. 283 of 2024 and its analogous cases whether the approval or sanction, it should speak for itself, i.e. ex-facie, it should disclose consideration of the materials placed before it and application of mind thereto. However, failure to reproduce or refer those recitals in the resolution or order itself would not render the order of approval or sanction to be invalid unless the prosecution fails to establish by leading evidence that all the materials necessary for the grant of approval or sanction were placed before the concerned authority for due application of mind by such authority before the grant of approval and or sanction. It apparently discloses that question of validity of approval or sanction cannot be decided unless the prosecution is afforded opportunity to lead evidence in that regard. Undoubtedly, an accused desiring to raise objection regarding the defects in such approval or sanction, or, grant, he can raise such objection; however, for conclusive decision on the said point, the accused has to wait till the trial is complete and on that ground, he cannot insist for discharge unless the objection relates to inherent lack of jurisdiction to the concerned authority to grant sanction or approval and such issue can be decided on undisputed facts. The law being well settled to the effect that the prosecution in a case where sanction or the approval order does not ex-facie show consideration of all the materials and/or application of mind, is entitled to establish the same by leading necessary evidence regarding production of materials before the concerned authority, the question of discharge of accused merely on the basis of such objection being raised cannot -24- W.P.(Cr.) No. 283 of 2024 and its analogous cases arise. The decision on the point of defect, if any, in the order of approval or sanction will have to be at the conclusion of the trial." [Emphasis Supplied]
25. Relying on the above judgment, he submitted that on the point of defect, if any, in the order of approval or sanction, if any, will have be considered at the conclusion of the trial. On these grounds, he submitted that these writ petitions are fit to be rejected. He distinguished the judgment relied by Mr. Poddar in the case of Ashraf Khan @ Babu Munne Khan & Ors. (Supra) and submitted that in that case, the trial was over and judgment was delivered and thereafter that order was passed, in view of that the said order is distinguishable in the facts of the present case. He further refers to the judgment relied by Mr. Jitendra S. Singh and Mr. Indrajit Sinha, learned counsels in the case of Fuleshwar Gope (Supra) is concerned, that in view of para-33 thereof in the last part of that para, it has been observed that the judgment will apply prospectively. He further submitted that the case of Fuleshwar Gope (supra) is arising out of the judgment of the Division Bench of this Court, in which the sanction was also under challenge, however, that case has also been dismissed with certain observation. On these grounds, he submitted that those orders cannot be the subject matter of scrutiny, unless the trial begins.
26. Mr. Jitendra S. Singh, learned counsel appearing for the petitioners by way of reply, has submitted that the earlier refusal and further sanction is not explained and how the further sanction was made that is not explained by the State counsel. He submitted that the sanction has to be granted at the earliest and if it is not done, that is required to be questioned at the earliest, as observed in the case of Fuleshwar Gope (Supra). He further submitted that so far the judgment in the case of Fuleshwar Gope (Supra) with regard to prospectivity is concerned, that is with regard to time limit only.
27. In view of the above submissions of the learned counsel -25- W.P.(Cr.) No. 283 of 2024 and its analogous cases appearing for the parties, the only question is required to be answered by this court as to whether the sanction order is bad or not and if the court is proceeded that can be looked into in the trial or at this stage.
28. The allegation against the petitioner Binod Kumar Pandey @ Vinod Kumar Pandey in W.P.(Cr.) No. 283 of 2024 is made of illegal extortion of money from the businessmen and used to transfer that illegal money through hawala channels and spreading terror in and round the State of Jharkhand.
29. The allegation against the petitioner Kumar Shivendra @ Shiv Sharma @ Raju Sharma in W.P.(Cr.) No. 476 of 2023 is of threatening and not to work without managing Aman Srivastava and similar threatening calls were made to the other companies also and exploding of the bomb in the office of one Shayamal Mukherjee as well as firing.
30. The allegation against the petitioner Siddharth Sahu in W.P.(Cr.) No. 279 of 2024 of extorting the money from businessmen, who were carrying on their business in coal and other businesses and one Aman Srivastava is involved in such illegal activities and is procuring the illegal amount through hawala channel.
31. The allegation against the petitioners Anand Pareekh, Sunil Kumar Sharma, Anil Sharma and Anil Kumar Sharma, in W.P.(Cr.) No. 419 of 2024 of extorting huge amount from the businessmen through the medium of hawala and further allegations are there against them of retaining huge amount.
32. The allegation against the petitioner Md. Ariz Hasnain alias Ariz Hasnain in W.P.(Cr.) No. 676 of 2024 of promoting the activities of ISIS through social media and misleading innocent people and linking them with the organization. Further allegations are there of anti-national organization propagating and collecting funds activities creating the tension between two communities.
33. Thus, the serious allegations are there against all the petitioners and chargesheet has also been submitted against them.
34. It is an admitted position that by Annexure-3 series in -26- W.P.(Cr.) No. 283 of 2024 and its analogous cases W.P.(Cr.) No. 283 of 2024, earlier the sanction was refused, however, later on by order dated 03.10.2023, the sanction has been granted under Sections 16, 17, 18, 20 and 21 of the UAP Act. Further in W.P.(Cr.) No. 476 of 2023, the sanction was granted by order dated 11.01.2024 and in W.P.(Cr.) No. 279 of 2024, the sanction was granted by order dated 03.10.2023. In W.P.(Cr.) No. 419 of 2024, the sanction as granted by order dated 03.10.2023 and in W.P.(Cr.) No. 676 of 2024, the sanction was also granted by order dated 14.05.2024 and all these sanctions were granted by the Law Secretary-cum-Legal Advisor and all these were granted looking into the nature of allegations made against the petitioners. The learned court, relying on the said and after receiving of the sanction order, has proceeded in the matter and a petition was filed with regard to delay in the sanction and proceeding in the matter, the learned court has decided the same by order dated 14.03.2024. The learned court has proceeded considering that prima facie case has been made out and the sanction has been granted and the sanctioning authority has perused the material and thereafter the reasons have been given of proceeding in the matter and dismissing the petition, filed by the defence by order dated 14.03.2024.
35. Rule-2(1)(b) of The Unlawful Activities (Prevention, Recommendation and Sanction of Prosecution) Rules, 2008 defines the authority. Rules-3 and 4 of the said Rule speaks of time limit for making the recommendation by the authority and Hon'ble Supreme Court in the case of Fuleshwar Gope (Supra) in para-33, has held that it is required to be followed strictly, however, in the same para, it has been observed that the judgment will operate prospectively and these case are prior of the delivery of the said judgment.
Section 45 of the UAP Act, speaks as under:-
[(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 -27- W.P.(Cr.) No. 283 of 2024 and its analogous cases 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 [if] such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
[(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.]"
36. Section 45(1)(i) of the UAP Act mandates that no court shall take cognizance of any offence under chapter-III of the said Act without the previous sanction of the Central Government or any officer, authorized by the Central Government. The Parliament in its wisdom has incorporated such a provision and also created an independent authority to review the proposal for prosecution sanction. It is by now well settled that such procedural safeguards has been prescribed to protect an accused from unwarranted prosecution and trial, inasmuch as the provisions of UAP Act are very stringent. Therefore, in the considered opinion of this court, such provision is an additional safeguard to an accused.
37. The Hon'ble Apex Court in the case of Ashrafkhan @ Babu @ Munnekhan Pathan & Anr. Versus State of Gujarat, reported in (2012) 11 SCC 606, while dealing with a similar provision of Section 20(A) of the Terrorist and Disruptive Activities (Prevention) Act (hereinafter referred to TADA) has held that the proposition that negative words can rarely be held directory. It was -28- W.P.(Cr.) No. 283 of 2024 and its analogous cases laid that the plain ordinary grammatical meaning affords the best guide to ascertain the intention of the legislature. Other methods to understand the meaning of the statute are resorted to when the language is ambiguous or leads to absurd result. When a content starts with negative words, no such ambiguity exists.
38. The face of Section 45(2) of the UAP Act, the requirement of prior approval cannot be said to be directory in nature, as the provision itself starts with negative words, no court shall take cognizance.
39. The law is well settled that the such sanction must be valid sanction and a sanction under Section 45 of the UAP Act is a condition precedent for empowering the prosecuting agency to approach the Court, so that the Court can take cognizance of the offences under Part-III of the UAP Act and thereafter only the court can take the cognizance. It appears that for the reasons behind is that the provisions of UAP Act are rigorous and the penalty provided is more stringent compared to offences under the IPC, and as such, the procedure of sanction has been introduced and an Independent Review Committee has been created to safeguard a citizen from any vexatious prosecution under UAP Act.
40. So far as Rules 3 and 4 of The Unlawful Activities (Prevention, Recommendation and Sanction of Prosecution) Rules, 2008 are concerned, that are mandatory, as has been held by the Hon'ble Apex Court in the case of Fuleshwar Gope (Supra), but the same will be prospectively.
41. In the case of Judgebir Singh alias Jasbir Singh Samra alias Jasbir & Ors. Versus National Investigation Agency, reported in 2023 SCC OnLine SC 543, UAP Act has been considered and it has been held in paras-46 and 47, which are as follows:-
"46. In the case of Central Bureau of Investigation v. R.S. Pai and Another reported in (2002) 5 SCC 82, it was observed by this Court that "...it cannot be held that the additional documents cannot be produced -29- W.P.(Cr.) No. 283 of 2024 and its analogous cases subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court." It was further observed that "....the word "shall" used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of A.P. [AIR 1957 SC 737 : 1958 SCR 283 : 1957 Cri LJ 1320] (SCR at p.
293) and it was held that the word "shall"
occurring in sub-section (4) of Section 173 and sub- section (3) of Section 207-A is not mandatory but only directory.
Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused...."
47. From the aforesaid, it is evident that the order of sanction passed by the competent authority can be produced and placed on record even after the filing -30- W.P.(Cr.) No. 283 of 2024 and its analogous cases of the chargesheet. It may happen that the inordinate delay in placing the order of sanction before the Special Court may lead to delay in trial because the competent court will not be able to take cognizance of the offence without a valid sanction on record. In such an eventuality, at the most, it may be open for the accused to argue that his right to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution. This may at the most entitle the accused to pray for regular bail on the ground of delay in trial. But the same cannot be a ground to pray for statutory/default bail under the provisions of Section 167(2) of the CrPC."
42. In the above judgment, the Hon'ble Apex Court has held that even after filing of the chargesheet, the sanction can be produced and in the cases in hand, after receiving the sanction only, the learned court has proceeded.
43. Further in the case of State of Goa Versus Babu Thomas, reported in (2005) 8 SCC 130, the Hon'ble Supreme Court has held that seeing the gravity of the allegations leveled against the respondent, the authority competent under the Rules concerned, permitted to issue a fresh sanction order and proceed afresh against the respondent from the stage of taking cognizance of the offence. In the cases in hand, after receiving of the sanction order, the learned court has taken the cognizance.
44. In view of the above so far as the defect in sanction is concerned, unless the prosecution fails to establish by leading evidence that all the materials necessary for the grant of approval or sanction were placed before the concerned authority for due application of mind by such authority before the grant of approval and or sanction, cannot be said to be invalid and that cannot be decided unless the prosecution is afforded opportunity to lead evidence in that regard and for conclusion of the decision on the -31- W.P.(Cr.) No. 283 of 2024 and its analogous cases said point, the accused has to wait till the trial is complete and on that ground, he cannot insist for discharge.
45. In the case of State of Bihar & Ors. Versus Rajmangal Ram (Supra), relied by learned counsel appearing for the respondent-State, the sanction was also granted by the Law Department and in para-9 of the said judgment, the Hon'ble Supreme Court has held that even assuming that the Law Department was not competent, it was still necessary for the High Court to reach the conclusion that a failure of justice has been occasioned and it was held that the more appropriate stage for reaching the said conclusion would have been only after evidence in the cases had been led on the issue in question. The sanctioning authority is required to apply its mind on the basis of facts, gathered in course of investigation by the Investigating Agency and that can be considered once the prosecution is allowed to led the evidence on the issue in question.
46. Thus, what has been argued by the learned counsels appearing for the petitioners in respective cases, that can be pointed only once the trial is started and the evidence on the issue in question is led and the same cannot be the subject matter at this stage. There are serious allegations against all these petitioners. Further charge can be altered at any stage under Section 216 of the Cr.P.C.
47. In the case of Fuleshwar Gope (Supra), the Hon'ble Supreme court in para-33, in the last part, it has been observed that the said will be prospective.
48. The case relied by Mr. Poddar, learned counsel appearing for the petitioners in the case of Ashraf Khan @ Babu Munne Khan & Ors. (Supra), the trial was over and the judgment was delivered and thereafter the Hon'ble Supreme court has come to that conclusion.
49. The case relied by the learned counsel appearing for the petitioners in the case of Sanjay Dutt (Supra), sanction was not the issue, the case was related to the TADA Act and the key question -32- W.P.(Cr.) No. 283 of 2024 and its analogous cases before the Constitution Bench is the proper construction of Section 5 of the TADA Act, outlining the ingredients of offence and the scope of defences available to the accused, the interpretation of Clause-(bb) of Sub-Section (4) of Section 20 of the TADA Act, focusing on the nature of the right to be released on bail in case of default in completing the investigation, the case in hand is on other issue, as such, this case is not helping the petitioners.
50. Further the case relied by the petitioners in the case of C. Shobha Rani (Supra) is not in dispute, sanction has to be given based on the same material, here the case in hand after analyzing the materials on record, sanction has been given by the authority concerned, as such, this case is also not helping the petitioners.
51. In view of the above facts, reasons and analysis, this court comes to a conclusion that once the evidence will be led on the issue in question, then only that can be the subject matter of consideration before any higher court and the sanction is valid or not that will be considered after evidence is led on the said issue and that can be the subject matter of trial only. The issues in question are answered accordingly.
52. As such, these petitions are dismissed. Pending I.A., if any, stands dismissed.
53. Interim orders, granted earlier, in respective cases, stand vacated.
(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi.
Dated the 18th December, 2024.
AFR/ Amitesh/-
-33- W.P.(Cr.) No. 283 of 2024and its analogous cases