–Devvrat Singh and Nishita Gupta
Introduction
The Supreme Court recently stayed an order of the Bombay High Court discharging Professor G.N. Saibaba in an alleged Maoist links case under the UAPA (Unlawful Activities Prevention Act). The effect of the order was that professor Saibaba who happens to be wheelchair bound and suffering from 90% disability will have to remain behind bars till further orders. The Apex Court noted that the Bombay High Court while discharging the accused had restrained its inquiry to the limited question of whether there existed a valid legal sanction to prosecute the accused under the UAPA (as is mandated by the provisions and rules of the act) and the High Court did not venture into the merits of the case. The Supreme Court reasoned that the order of discharge of the Bombay High Court needs detailed scrutiny as the High Court unlike the trial court did not decide the case on merits rather granted relief to the accused on purely procedural grounds (i.e., want of a valid sanction to prosecute under the UAPA) and therefore the Apex Court also found it imperative to suspend the order of the Bombay High Court. The decision of the Apex Court to defer the release of professor Saibaba is being criticised on the ground that the court adopted an impervious attitude towards the ill health of the latter. However, the larger issue that emerges is the question of law framed by the Hon’ble Supreme Court that it will examine with regard to this case.
The question of law that the Apex Court seeks to examine is whether an appellate court can discharge the accused on the ground that there did not exist a valid sanction to prosecute the accused under UAPA and therefore the prosecution conducted before the trial court is void ipso facto.
This article attempts to answer the above-mentioned question of law by examining the various provisions governing the grant of sanction in criminal trials and the judicial pronouncements on the interpretation of such provisions.
Provisions Governing Sanctions to Prosecute under the UAPA and other Special Criminal Statutes
The UAPA like many other special penal statutes mandates that in order to prosecute someone under the provisions of the act, there must exist a valid sanction. Section 45 of the UAPA mandates that no court shall take cognizance of any offense under chapter 3 (chapter dealing with unlawful activities), chapter 4 (chapter dealing with terrorist offenses), and 6 (chapter dealing with terrorist organizations) without the prior sanction of the competent authority (either central government or state government depending on case-to-case basis).
It is pertinent to mention that the UAPA Rules 2008 governing the grant of sanction for prosecution lays down a time period of 7 working days within which an independent authority after reviewing the evidence gathered by the investigating authority shall make a recommendation to the competent authority (central or state government) following which the competent authority shall decide whether or not to grant sanction within 7 working days from the day of receipt of the recommendation.
There are several other provisions under various special penal statutes such as Terrorist and Disruptive Activities (TADA), Prevention of Terrorism Act (POTA) or the Maharashtra Control of Organised Crime Act (MCOCA), wherein the legislature has provided for provisions that are pari materia to the sanctioning process laid down under UAPA. Section 20-A (2) of the TADA contemplates the grant of prior sanction for prosecuting an accused person by the Inspector General of Police or alternatively the commissioner of Police. Similarly, under section 50 of the POTA, the legislature has provided that no court shall take cognizance of any offense under the act without the prior sanction of the central or state government. Likewise, the MCOCA contemplates sanction by the Additional Director General of Police under section 23 of the Act.
Nature and objective of Sanction for Prosecution under UAPA
It is settled law that due process is an integral part of the constitutional scheme under Article 21 and the same has been recognized by the Apex Court in Maneka Gandhi case. The provisions governing sanction are reflective of the idea of due process in litigation proceedings and therefore the mandate of such provisions cannot be perceived lightly.
The central objective of having a prior sanction from a competent authority is to protect the accused from undue harassment and malicious prosecution. The UAPA provides for a 2-step process for grant of sanction. This can be better understood if we refer to the scheme of the UAPA as incorporated under section 45 and the rules which governs the grant of sanction for prosecution. Under the UAPA an independent authority after assessing the evidence gathered by the Investigating Authority makes a recommendation report to the central government which then decides upon the basis of such report whether or not there exists a fit case for booking the accused under the provisions of UAPA. It is pertinent to mention that the recommendation report is not binding on the competent authority and it is empowered to take a decision contrary to what has been recommended. Section 45 of the UAPA makes it crystal clear that no court is empowered to take cognizance of any offense under the act without the prior sanction of the competent authority.
The then home minister P. Chidambaram, who brought forth the amendment bill in 2008 which introduced the 2-step sanctioning process under UAPA, had stated in his Lok Sabha Speech that the aim of the 2-step sanction process is to filter out cases wherein the evidence collected by the Investigating Authority does not warrant prosecution. In the proceedings before Rajya Sabha, Chidambaram further articulated that the grant of sanction represents the substantive due process and the provision cannot be treated as a mechanical/technical formality.
It is noteworthy that the UAPA provides for 2 step sanction granting process i.e., a recommendation from an independent authority and a final decision by the competent authority; this ipso facto accords a greater significance and sanctity to the whole process and makes the legislative intent clear. Therefore, the whole scheme of the UAPA with regard to the grant of sanction is meant to safeguard the accused from prosecutorial vindictiveness.
Judicial pronouncements regarding sanctions and its effect on the prosecution case
In order to understand the legal position on the issue of whether or not the non-existence of a valid sanction would prove to be fatal to the prosecution, we would proceed with deriving assistance from the precedents on the issue.
In Rambhai Nathabhai Gadhvi vs State of Gujrat[1] the hon’ble Supreme Court while dealing with section 20-A (2) of TADA held that the designated court faces a jurisdictional bar if there is a want of a proper sanction. The designated court is forbidden from taking cognizance of any offense under the provisions of the act if there is no valid sanction and if the court has taken cognizance in the absence of a valid sanction, then such an action is without jurisdiction and any proceeding before the court would be without jurisdiction. The decision in Rambhai Nathabhai was overruled by the supreme court but on a different aspect.
It is not difficult to understand that grant of sanction to prosecute directly affects the competence of the court to take cognizance in a matter. The whole idea behind sanction is to create a fetter on the power of the court to take cognizance of the matter.
We may further have reference to the Hon’ble SC’s interpretation of the provisions related to sanction under the stringent Maharashtra Control of Organised Crime Act (MCOCA). In Jamiruddin Ansari vs Central Bureau of Investigation[2] the SC interpreted section 23 of MCOCA which provides that no special court shall take cognizance of any offense under the act unless there is a previous sanction from a Police officer not below the rank of Additional Director General of Police. It was held by the Apex Court that the special court has no power to take cognizance (even on a private complaint) in the absence of a sanction. The SC went on to state that sanction attains much more importance in the view of the stringent provisions of MCOCA.
Assistance can also be drawn from the decision of the Apex Court’s Constitution bench judgment in Baij Nath Prasad Tripathi vs the State of Bhopal[3] wherein the SC categorically stated that if cognizance is taken by any court without complying with the requirement of sanction, then in such a scenario the entire trial will stand vitiated and whatever be the outcome of the trial i.e., Acquittal or Conviction, will not be by a court of competent jurisdiction.
By the aforementioned judgments, it is clear that sanction is a procedural safeguard laid down by the legislature which essentially creates a fetter on the court’s power to take cognizance. Therefore, unless there exists a valid sanction, the court cannot assume the power of taking cognizance of the offense.
The interplay of section 465 Cr.P.C. with sanction
In this regard, it is essential to understand the interplay of section 465 of the Cr.P.C with the process of grant of sanction.
Section 465 of Cr.P.C deals with curable defects in prosecution. The provision states that no Finding, Sentence or Order by a court of competent jurisdiction shall be reversible on the account of any error or irregularity in the process of sanction for prosecution unless there happens to be failure of justice. Furthermore, the subsection (2) to section 465 mandates that any grievance against an irregular sanction should be raised at the earliest possible opportunity.
It is pertinent to mention that UAPA provides for an overriding clause under section 48 which states that the provisions of UAPA will have effect notwithstanding anything inconsistent therewith in any other enactment.
Therefore, the question that now emerges is whether section 465 can be invoked to cure the defect in the grant of sanction keeping in mind that UAPA provides for an overriding effect clause.
It is submitted that in the light of the fact that UAPA is a special legislation with extremely stringent provisions and with an overriding clause in particular, its provisions must be interpreted strictly. Therefore, there exists sufficient room for arguing that provisions of the Cr.P.C (i.e., 465) cannot be invoked to cure the defect in the process of grant of sanction because the UAPA provides for an overriding clause under section 48.
The SC in Ashrafljam Alias Babu Munnekhan Pathan and another vs State of Gujrat[4] held while dealing with section 20-A of TADA that section 465 of Cr.P.C is not a panacea for every error, omission or irregularity and if the court has not followed the due procedure with regards to sanction as has been mandated by the legislation, then such a defect cannot be cured by 465 Cr.P.C.
It is submitted that the SC in Baij Nath Prasad[5] made it clear that in a situation where there is no valid sanction at all and the court proceeds with taking cognizance anyway, then the court cannot be termed to be a court of competent jurisdiction and by no measure can section 465 cure such a defect.
Conclusion
In view of the case laws discussed above, it is submitted that the law around sanction and its effect on the prosecution is simple. If there exists a sanction to prosecute, the court can legally and validly take cognizance of the offences, however, the prosecution cannot be sustained if there is want of a valid sanction. The authors have placed reliance on cases dealing with TADA and MCOCA because the following legislations had provisions regarding sanction for prosecution which are pari materia the provisions of UAPA.
It is an admitted fact in the case of GN Saibaba that there was no sanction at all and yet the trial court went on to take cognizance of the matter and proceeded with recording the testimony of PW-1. In view of the above discussion, we can arrive at a safe conclusion that the trial stands vitiated because of want of a valid sanction. The counterargument that sanction can be obtained at a later stage does not seem to be legally sound because the UAPA rules provide for a certain time frame within which the authority needs to grant sanction. The provisions and rules of legislation as stringent as UAPA cannot be construed loosely. The time frame for the grant of sanction must be adhered to religiously. It is submitted that if the order granting sanction is not in compliance with the law, then it must be considered to have vitiated the whole proceedings. It is further reiterated that since the UAPA provides for an overriding clause therefore it is difficult to accept the argument that section 465 of the Cr.P.C can cure the defects in the sanction.
It is submitted by the author that in the light of the above discussion the discharge of G.N. Saibaba should be upheld because even purely procedural grounds also hold substantive force. However, we are conscious of the fact that the Hon’ble Apex Court has kept open the question of law on the issue of sanction and will be considering it in detail. Therefore, we must wait for an authoritative pronouncement on the issue by the Supreme Court itself.
[1] (1997) 7 SCC 744
[2] (2009) 6 SCC 316
[3] AIR 1957 SC 494
[4] (2012) 11 SCC 606
[5] AIR 1957 SC 494
Devvrat Singh and Nishita Gupta are 4th Year Students at Symbiosis Law School, Noida.
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