Karnataka High Court
Peer Mohideen @ Peer vs State By Vyali Kaval Police on 4 April, 2025
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WP No. 14071 of 2021
C/W WP No. 18715 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.14071 OF 2021 (GM-RES)
C/W
WRIT PETITION NO.18715 OF 2021 (GM-RES)
IN W.P. NO.14071 OF 2021
BETWEEN:
1. PEER MOHIDEEN @ PEER
S/O LATE KHAZA MOHIDEEN
AGED ABOUT 45 YEARS,
R/O NO.16/134, AVIMPURAM,
4TH STREET, PEDAPALYAM,
THIRUNELVELI TAMILNADU-627005.
AND NO.6, P & T COLONY,
AROGYAMATHA LAYOUT,
2ND CROSS, TANNERY ROAD,
Digitally signed by K.G. HALLI, BANGALORE-560045.
MAHALAKSHMI B M
Location: HIGH (DELETED AS PER COURT
COURT OF
KARNATAKA OREDER DATED 10.03.2022)
2. KICHAN BUHARI @ BUGARI
S/O. SHAIK MOHINUDIDIN,
AGED ABOUT 45 YEARS,
R/O NO.96, VALLKATTEKUTTIL VILLAGE,
MELAPALYAM, THIRUNELVELI,
TAMIL NADU-627 005.
3. SYED SULEMAN @ TENKASI SULEMAN
S/O. SHAIK MEERAN,
AGED ABOUT 32 YEARS,
R/O NEAR PFI OFFICE,
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9TH CROSS, KARUMBAKADAI,
AZAD NAGAR, COIMBATORE,
TAMIL NADU-641001.
4. TENKASI HANEEF @ MOHAMMED HANEEF
@ NAGOOR HANEEF
S/O. MEERA MOHIDDIN,
AGED ABOUT 43 YEARS,
R/O. 5TH STREET, MELUPALYAM,
THIRUNELVELI, TAMIL NADU-627005.
(DELETED AS PER COURT
OREDER DATED 10.03.2022)
5. PARAVAI BASHA
S/O. K.N. KASAMYDEEN
AGED ABOUT 38 YEARS
R/AT HAMEEMPURAM,
11TH STREET, MELUPALYAM,
THIRUNELVELI, TAMIL NADU-627006
(DELETED AS PER COURT
OREDER DATED 10.03.2022)
PET. NO.1-5 ARE IN
JUDICIAL CUSTODY,
ALL REP BY MUMTAJ
W/O. K.N. KASAMYDEEN
AGED ABOUT 56 YEARS,
R/AT HAMEEMPURAM,
11TH STREET, MELUPALYAM,
TIRUNELVELI-627006.
... PETITIONERS
(BY SRI MOHAMMED TAHIR, ADVOCATE)
AND:
1. STATE BY VYALI KAVAL POLICE
BANGALORE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING,
BANGALORE-560001.
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2. PRINCIPLE SECRETARY
ADMINISTRATIVE DEPT.
STATE GOVERNMENT
VIDHAN SOUDHA,
BANGALORE-01.
3. DIRECTOR
DEPARTMENT OF PROSECUTION
GOVERNMENT OF KARNATAKA
VIDHAN SOUDHA,
BANGALORE-560001.
... RESPONDENTS
(BY SRI P. THEJESH, HCGP FOR R-1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT
OF CERTIORARI TO QUASH THE NOTIFICATION NO.HD 64
MOHIBA 2012 DATED 20.05.2013 WHICH IS ALSO A
CONTINUATION OF HD 137 MOHIBA 2010 DATED 30.07.2010 AT
ANNEXURE-AA; SET ASIDE THE IMPUGNED SANCTION ORDER
DATED 19.09.2017 ISSUED BY THE RESPONDENT NO.3 VIDE
ANNEXURE-D IN S.C. NO.381/2015 PENDING IN THE FILES OF
49TH ADDL. CITY CIVIL AND SESSION JUDGE AT BANGALORE
WHEREIN THESE PETITIONER ARE ARRAYED AS ACCUSED NO
RESPECTIVELY.
IN W.P. NO.18715 OF 2021
BETWEEN:
1. PANNA ISMAIL @ MOHAMMED ISMAIL
S/O. ABDULLA
AGED ABOUT 45 YEARS,
R/O NO.39, 5TH CROSS,
MAILA KHADAR ROAD, MALEPALYAM,
THIRUNELVELI
TAMILNADU - 627005.
2. FAKRUDDIN @ POLICE FAKRUDDIN
S/O. SIKANDER PASHA,
AGED ABOUT 42 YEARS,
R/O NO.5/2, KAREEM SHA PALLI VASAL,
4TH CROSS, MUNNICHALAI ROAD,
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NELAPET VILLAGE, MADURAI,
TAMIL NADU-625001.
3. BILAL MALIK @ BILAL
S/O. LATE SYEED,
AGED ABOUT 32 YEARS,
R/O NO.2/5, KARIMASHA PALLI VASSAL,
4TH CROSS, MUNNI CHALAI ROAD,
NELAPET VILLAGE, MADURAI,
TAMIL NADU-625001.
4. SHAHUL HAMEED BAHADDUR SHA
@ PARAVAI BASHA,
S/O. KHAJA MOHIDDIN,
AGED ABOUT 32 YEARS,
R/O. AMEEN PURAM,
MELUPALYAM, THIRUNELVELI,
TAMIL NADU-627005.
5. ALI KHAN KUTTI S/O. NOT KNOWN
AGED ABOUT MAJOR
MELUPALYAM, THIRUNELVELI,
TAMIL NADU-627005.
PET. NO.1-5 ARE IN
JUDICIAL CUSTODY,
ALL REP. BY MUMTAJ
W/O. K.N. KASAMYDEEN
AGED ABOUT 56 YEARS,
R/AT HAMEEMPURAM,
11TH STREET, MELUPALYAM,
TIRUNELVELI-627006.
... PETITIONERS
(BY SRI MOHAMMED TAHIR, ADVOCATE)
AND:
1. STATE BY VYALI KAVAL POLICE
BANGALORE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BANGALORE-560001.
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2. PRINCIPLE SECRETARY
ADMINISTRATIVE DEPT.
STATE GOVERNMENT
VIDHAN SOUDHA
BANGALORE-01.
3. DIRECTOR
DEPARTMENT OF PROSECUTION
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BANGALORE-560001.
... RESPONDENTS
(BY SRI P. THEJESH, HCGP FOR R-1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUED WRIT
OF QUA WARRANTO AND CERTIORARI AGAINST THE
RESPONDENT NO.3 TO ESTABLISH HIS STATUS AS INDEPENDENT
AUTHORITY UNDER THE SECTION 45(2) OF UAPA AS PER LETTER
AND SPIRIT OF ACT, CONSEQUENTLY DECLARE THAT
RESPONDENT NO.3 IS NOT AN INDEPENDENT AUTHORITY AS THE
REQUIREMENT OF SECTION 45(2) OF UAPA; SET ASIDE THE
IMPUGNED SANCTION ORDER DATED 05.05.2014 ISSUED BY THE
RESPONDENT NO.2 AS ANNEXURE-D WHICH IS ISSUED ON THE
RECOMMENDATION OF RESPONDENT NO.3, WHICH IS NOT A
PROPER INDEPENDENT REVIEW AUTHORITY UNDER SECTION
45(2) OF UAPA IN CRIME NO.118/2013.
Date on which the appeal was 14.03.2025
reserved for Orders
Date on which the Orders was 04.04.2025
pronounced
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MRS JUSTICE K.S. HEMALEKHA
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CAV ORDER
(PER: HON'BLE MRS JUSTICE K.S. HEMALEKHA)
Accused Nos.1, 3, 12, 16, and 17 are before this Court
in WP No.14071/2021, challenging the sanction order dated
17.10.2013 issued by respondent No.3 and the notification
dated 20.05.2013, which is in continuation of the notification
dated 30.07.2010, wherein the Government of Karnataka
had appointed the 'Director of Prosecutions and Government
Litigations, Bangalore' as 'Authority' in exercise of the
powers conferred under sub-section (2) of Section 45 of the
Unlawful Activities (Prevention) Act, 1967 ('UAPA' for short)
read with clause (b) of Sub-Rule 2 of the Unlawful Activities
(Prevention) (Recommendation and Sanction of Prosecution)
Rules, 2008 (referred to as 'Rules, 2008' for short) and by
notification dated 20.05.2013, appointed 'Additional Law
Secretary, Law Department, Government of Karnataka' as a
'Co-member/Joint Authority'.
2. By an order dated 10.03.2022, petitioner Nos.1, 4
and 5 were deleted from the array of the parties, hence the
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writ petition survives only in respect of petitioner Nos.2 and
3/accused 3 and 12.
3. Accused Nos.8 to 10, 16 and 18 are before this
Court in WP No.18715/2021 seeking for the following
prayers:
"a) Issue writ of qua warranto and certiorari
against the Respondent no.3 to establish his status
as independent authority under the section 45(2) of
UAPA as per letter and spirit of act, consequently
declare that respondent no.3 is not an independent
authority as the requirement of section 45(2) of
UAPA.
b) Set aside the Impugned sanction Order
No.OE/184/MOHIB/2013(2) Dated 05/05/2014
issued by the respondent no.2 as Annexure D
which is issued on the recommendation of
Respondent no.3, which is not a proper
independent review authority under section 45(2)
of UAPA in Crime no.118/2013
c) Consequently quash the cognizance order
dated 23/10/2013 taken by the Magistrate court 1st
ACMM, at Bangalore in connection of crime
no.118/2013 Vyalikaval Police Station same at
Annexure E "presently" pending in the files of 49th
Addl. City Civil and Session Judge at Bangalore as
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SC no.1347/2016 c/w SC no.381/2015 under
section 120(B), 121, 121A, 123, 307, 332, 435,
201 of IPC, 3,4,5,6 of Indian Explosive Substance
Act, 4 of Prevention of damage to public property
act and section 11,16,17,18,19 and 20 of UA(P)A
act, wherein these petitioner are arrayed as
Accused no.8,9,10,16 and 18 respectively.
d) Pass any other order by seeing the fact and
circumstance of the case"
4. Challenge in these writ petitions is to the
appointment of 'Director of Prosecutions and Government
Litigations, Bangalore' as 'Authority' and to the sanction
order issued by the Principal Secretary, Administrative
Department on the recommendation of the Authority,
contending that the recommendation of the Authority is not
in consonance with Section 45 of the UAPA.
5. Brief facts necessary for consideration of the
present writ petitions, shorn of unnecessary details are: On
17.04.2013, a blast took place in Malleshwaram near BJP
Office. FIR was registered at Vyalikaval Police Station in
Crime No.118/2013 against unknown persons. The
investigation was transferred to the CCB Branch. During
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investigation the police arrested several accused persons and
implicated them of committing offences punishable under
Sections 120B, 121, 121A, 123, 307, 332, 435, 201 of Indian
Penal Code read with Sections 3, 4, 5 and 6 of the Indian
Explosive Substances Act, 1908 read with Section 4 of the
Prevention of Damage to Public Property Act, 1984 read with
Sections 11, 16, 17, 18, 19 and 20 of the UAPA, the
petitioners were arrayed as accused persons.
6. The Investigation Officer addressed a letter to
Home Department, Government of Karnataka seeking
sanction to prosecute the accused persons under the UAPA.
The Government of Karnataka in continuation of its
notification dated 30.07.2010 issued a notification dated
20.05.2013 in exercise of its power conferred by sub-section
(2) of Section 45 of the UAPA read with Clause (b) of sub-
Rule 2 of Rules, 2008 appointed Additional Law Secretary,
Law Department, Government of Karnataka as a 'Co-
Member/Joint Authority' along with the Authority who had
been appointed on 30.07.2010, i.e., 'Director of Prosecutions
and Government Litigations, Bangalore' as an 'Authority'.
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7. Learned counsel for the petitioners, taking us to
Section 45 of the UAPA and Rules 3 and 4 of Rules, 2008,
would primarily contend that respondent No.3-Director,
Department of Prosecution appointed as an 'Authority' is not
an independent authority as envisaged under sub-section (2)
of Section 45 of UAPA and as such, the recommendation
made by the Director, Department of Prosecution, cannot be
considered for according a sanction against the petitioners. It
is submitted that Rules 3 and 4 of Rules, 2008 provide a
detailed procedure with respect to grant of sanction under a
fixed time line within which the sanction has to be granted.
In regard to the impugned sanction in WP No.18715/2021,
there was a delay of 13 months after the incident, 07
months after receipt of the evidence gathered by the
Investigating Officer and after receipt of the recommendation
of the authority, as such, the impugned sanction is not in
consonance with the statutory mandate as set out in Rules 3
and 4 of Rules, 2008. It is submitted that sub-clause (2) of
Section 45 of UAPA has been violated, as the requirement of
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'independent review' while according sanction was not
complied with.
8. Per contra, learned counsel appearing for the
State submits that the sanction order issued by the State
Government is in accordance with Section 45 (2) of the
UAPA. There is no infirmity in the appointment of an
Authority for the purpose of independent review. It is
submitted that since the trial is at a fag end and at this
stage, the petitioners cannot seek to quash the criminal
proceedings.
9. Having heard the learned counsel for the parties,
the questions that fall for consideration are:
"i. Whether the impugned sanction order
can be challenged at a belated stage?
ii. Whether the appointment of the
'Authority' by the State Government is in violation of
Section 45 (2) of UAPA?
iii. Whether the sanction order impugned is
in consonance with the statutory mandate of Rules 3
and 4 of Rules, 2008?"
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Point No.i and ii
Point Nos.i and ii are taken up together to avoid
repetition of facts.
10. Before adverting to the points for consideration, it
would be appropriate to state here that both the counsel
have relied upon the decision of the Apex Court in the case
of Fuleshwar Gope Vs. Union of India and others1
(Fuleshwar Gope). The context of reliance on the judgment
of Fuleshwar Gope's case by the petitioners is that the
word 'independent' and 'independent review' has not been
properly understood by the State Government while
recommending the Authority. It is submitted that regarding
the intent behind involving an independent authority in the
sanction process, the Apex Court in Fuleshwar Gope's
case, underscored that the purpose is to ensure an unbiased
and impartial evaluation of the case before granting sanction
for prosecution. This being so, the appointment of the
'Authority'-the Director, Department of Prosecution by the
State Government cannot be termed as an 'independent
1
2024 SCC Online SC 2610
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authority' who can scrutinize the entire evidence that is
gathered and then make a recommendation to the State
Government impartially.
11. Learned HCGP placing reliance on the decision of
Fuleshwar Gope's case stated supra submits that the
decision of the Apex Court is aptly applicable to the present
facts, the Apex Court clearly observed that the independent
review and the application of mind are the questions to be
determined by way of evidence and as such, should be
raised during the trial before the Trial Court.
12. The questions in regard to the validity of sanction
and the stage at which it can be challenged, fell for
consideration before the Apex Court in Fuleshwar Gope's
case. The Apex Court while observing that the challenge to
the validity of a sanction should be raised at the earliest
opportunity, preferably before the Trial Court, referred to the
various decisions of the Apex Court in the case of Central
Bureau of Investigation vs. Ashok Kumar Aggarwal2
(Ashok Kumar), Parkash Singh Badal vs. State of
2
(2014) 14 SCC 295
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Punjab3 (Parkash Singh), Dinesh Kumar vs. Airport
Authority of India4 (Dinesh Kumar), Central Bureau of
Investigation & Ors. vs. Pramila Virendra Kumar
Agarwal5 (Pramila Virendra) and State of Karnataka Vs.
Subbegowda6 (Subbegowda) and held at paragraph Nos.17
and 18 as under:
"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 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
3
(2007) 1 SCC 1
4
(2012) 1 SCC 532
5
(2020) 17 SCC 664
6
2023 SCC Online SC 911
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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 possible
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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."
13. The law that emerges from the decisions of the
Apex Court stated supra is that,
i To examine the validity of the sanction for
prosecution is to be done at the stage of trial or at the
earliest point of time, that is, when the Authority is
appointed or the sanction of prosecution is granted.
ii. If the authority appointed by the Central
Government or the State Government reviews the evidence
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gathered by the Investigator, and if it is to be questioned for
any reason, the appropriate stage is trial.
iii. Whether there was an application of mind
independently by the Recommending Authority and the
Sanctioning Authority, has to be established by the
prosecution and satisfy the Court by leading evidence that
the entire relevant facts were placed before the
Recommending Authority and the Sanctioning Authority had
applied its mind and the sanction is granted in accordance
with law.
14. In the instant case, the petitioners seek to
challenge the appointment of the Authority as well as the
sanction order issued by the State Government. The
Authority appointed by the State Government is on
30.07.2010 and pursuant to appointment of the authority by
the State Government under notification dated 30.07.2010,
another notification came to be issued in continuation on
20.05.2013, thereby appointing a 'co-member/Joint
Authority', the petitioners have not made out any ground as
to how they are prejudiced on account of recommendation
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made by the authority based on the evidence gathered in the
course of the investigation.
15. For better understanding we also refer to Section
45 of the UAPA, which reads as under:
"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 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
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prescribed, to the Central Government or, as the
case may be, the State Government."
(Emphasis supplied)
16. Section 45 of UAPA pertains to cognizance of
offences under the Act, its specifies that no Court shall take
cognizance of any offence under Chapter III (Offences and
Penalties) and Chapter IV (Punishment for Terrorist
Activities), Chapter VI (Terrorist Organizations and
Individuals) without prior sanction of the Central
Government or, the State Government, as applicable.
Sanction for prosecution under Section 45 (1) of UAPA is
granted only after an independent authority reviews the
investigation evidence and submits a report. The Central
Government or the State Government then examines the
material, considers the authority's recommendation and
determines if a prima facie case exists before according
sanction.
17. What flows from the description of Section 45 is
that the sanction is not the function of the Government alone
and it can be granted only after an independent body, albeit
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appointed by the Government, makes an independent review
of the evidence. The Authority is required to reach a prima
facie satisfaction that the relevant facts, as gathered in the
investigation would constitute the offence or not. The Apex
Court in the case of State of Maharashtra v. Mahesh G.
Jain7 (Mahesh G. Jain) held that the prosecution is to prove
that the valid sanction has been granted. It 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.
Whether the authority has made an independent review or
whether with an application of mind or clothed with cloud are
the questions to be determined by considering the evidence
and as such, the ground touching sanction should be raised
at the stage of trial. The order passed by the administrative
authority cannot be tested by way of judicial review on the
same anvil as judicial or quasi judicial order. The Apex Court
in Fuleshwar Gope's case faced with similar situation
observed at paragraph No.41 as under:
7
(2013) 8 SCC 119
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"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, 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
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detailed above, have not been met. Furthermore,
in Mohd. Iqbal M. Shaikh v. State of Maharashtra, 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 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
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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 which
protects proceedings having 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
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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."
(Emphasis supplied)
18. Section 45 of UAPA has two distinct facets, which
govern the sanction for prosecution in terrorism related
cases. These facets ensure that the prosecution under the
UAPA is not arbitrary and follows due process. Under
Section 45 (2) of UAPA, before granting sanction for
prosecution, the Government receives a report from an
independent authority who is appointed by the State or
Central, as the case may be, and this independent review
ensures that there is prima facie evidence against the
accused before formal prosecution begins, thus, these two
facets emphasize as a procedural safeguard to prevent
arbitrary prosecution under the UAPA.
19. For the reasons stated and in light of the decision
of the Apex Court in Fuleshwar Gope's case, it would not
hold this Court for long to arrive at a conclusion that the
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'Authority' so appointed was a competent authority, or
whether the Authority has made an independent review as
well as applied its mind, or whether there was application of
mind by the sanctioning authority while sanctioning, are the
questions that have 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 reaching their logical
and lawful conclusion. It is also to be stated here that if the
challenge is to the appointment of the 'authority' by the
State Government or the Central Government as the case
may be, it has to be raised at the earliest instance and not
belatedly. If the initial appointment of the 'authority' is not
challenged at the earliest point of time, it does not preclude
the same being challenged at a stage of trial before the Trial
Court, but when a challenge is made belatedly before the
Appellate Court, the Court should refrain from entertaining it,
and liberty to raise the issue at the stage of trial may be
given. The challenge to appointing of the 'authority' and the
sanction order is made by the petitioners when the trial is
underway and numerous witnesses have been examined
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(upto 113), challenge made is belatedly and thus, we refrain
from entertaining these writ petitions, holding that the
petitioners have failed to challenge at the earliest possible
opportunity and thus, it is open for the petitioners to raise
the issue during trial and if it is raised the trial Court shall
promptly consider that issue. Point Nos.i and ii are answered
thus.
Point No.iii
20. Rules 3 and 4 of Rules, 2008 reads as under:
"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
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seven working days after receipt of the
recommendations of the Authority."
21. Rules stated supra prescribe a mandate and a
time limit. The Apex Court in Fuleshwar Gope's case put a
caveat observing that the time limit mentioned in Rules 3
and 4 of Rules, 2008, shall not affect any decision of the
authority which has been passed before the date of decision
in Fuleshwar Gope's case, the Apex Court emphasized that
the legislative intent is clear and Rules 3 and 4 of the Rules,
2008 are to be applied prospectively in strict adherence to
the time line thereafter.
22. It is argued by the counsel appearing for the
petitioners that as on the date of filing of WP
No.18715/2021, Fuleshwar Gope's decision was not in
force. Applicability of doctrine of prospective overruling is
de-merited and as such, the time limit prescribed by the
Rules, 2008 has to be applied in its full rigor, placing reliance
on the decision of the eight bench of the Apex Court in the
case of Mineral Area Development Authority and
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another Vs. M/s. Steel Authority of India and Another8
(Steel Authority) (Enforcement Order)
23. The Nine judge bench of the Apex Court in
Mineral Area Development Authority Vs. SAIL9 (MADA)
answered the questions referred and in the process
overruled the decision in the case of India Cement Ltd.,
Vs. State of T.N.10 (India Cement Ltd.,) and subsequent
decision of the Apex Court which relied on it. After the
judgment was pronounced, the assessees moved an
application seeking that the judgment rendered in MADA be
given prospective effect. The Apex Court while dealing with
the said aspect whether or not the judgment in MADA
should be given prospective effect elaborated the doctrine of
prospective over ruling and emphasized that this doctrine is
applied when a Constitutional Court overturns an established
precedent by introducing a new rule, but confines its
application to future cases to prevent injustice or hardship.
The Apex Court observed that the doctrine aims to validate
8
(2024) 10 SCC 257
9
(2024) 10 SCC 1
10
(1990) 1 SCC 12
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actions taken before the new declaration in the broader
public interest, ensuring that the invalidation of prior laws
takes effect from a future date. The Apex Court in the Steel
Authority (Enforcement Order) decided that the MADA
judgment would apply retrospectively from 01.04.2005, the
application of doctrine of prospective overruling by the Apex
Court in Steel Authority (Enforcement order) balanced the
need for legal consistency with fairness to those affected by
change of law.
24. As stated supra, the Apex Court's decision in
Fuleshwar Gope's case emphasized that the time line
specified in Rules 3 and 4 of Rules, 2008 are mandatory and
must be strictly adhered to. Non-compliance of time line can
render a sanction order invalid, clarifying that its observation
regarding strict adherence to these time lines would apply
prospectively. That means to say that the sanction orders
issued before the date of judgment would not be invalidated
solely due to non-compliance of the prescribed time line. The
sanction order in question was issued in the year 2013, well
before the Fuleshwar Gope's decision. The Apex Court's
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decision clearly indicates that a strict adherence to the time
lines in Rules 3 and 4 would not retroactively affect the
validity of the sanction order passed by the Authority before
the decision rendered in Fuleshwar Gope's case.
Therefore, the argument that the sanction is invalid solely
due to non-compliance with the time lines as prescribed
under Rules 3 and 4 of Rules, 2008 does not hold any merit.
Mere pendency of the writ petition challenging the sanction
order in the absence of any stay order means the sanction
order remains valid and operative and thus based on the
principles in Fuleshwar Gope's case, the sanction order
cannot be quashed solely on the ground of non-compliance
with the time lines prescribed in Rules 3 and 4 of Rules,
2008. The Apex Court's judgment in Steel Authority
(Enforcement Order) discussed the doctrine of prospective
overruling, which allows the Court to apply its decision only
to the future cases to prevent undue hardship and similarly,
in Fuleshwar Gope's case, the Apex Court has observed
that the mandatory time line prescribed to be applied
prospectively, ensuring that the past sanction orders are not
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invalidated. We have already observed that the challenge to
the validity of the sanction should be raised promptly.
25. In the instant case, though the sanction order
was not in strict adherence to the mandate and time limit as
envisaged in Rules 3 and 4 of Rules, 2008, however, in light
of the decision of the Apex Court in Fuleshwar Gope's case
about prospective applicability, the sanction order having
been passed on 17.10.2013 i.e., prior to the decision in
Fuleshwar Gope, is not invalid on account of procedural
non-compliance of Rules 3 and 4 of Rules, 2008. Accordingly
point No.iii is answered. For the foregoing reasons, we pass
the following:
ORDER
Writ petitions are hereby dismissed.
Sd/-
(SREENIVAS HARISH KUMAR) JUDGE Sd/-
(K.S. HEMALEKHA) JUDGE MBM List No.: 1 Sl No.: 1