# Fuleshwar Gope v. Union of India & Ors

- **Citation:** 2024 INSC 718
- **Court:** Supreme Court of India
- **Decided:** 2024-09-23
- **Case number:** Criminal Appeal No. 3923 of 2024
- **Bench:** C.T. Ravikumar, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fuleshwar-gope-v-union-of-india-ors-37262
- **Pages:** 69

## Headnote

Issue arose as to whether the validity of the Sanction Order can be
challenged at any stage; whether violation of s.45(2) of the UAPA r/w
rr.3 and 4 of the 2008 Rules, if any, vitiates the proceedings, whether
violation of statutory timelines and the requirement of independent
review which includes application of mind, are necessary aspects
of procedure; whether the appellant's involvement were actually
independent of the ones in which A-6 and other members were
arrayed as accused; and whether the statutory exemption u/s.22
A of the UAPA applies to the appellant who claims to be unaware
of the affairs of the company.
Headnotes†
Unlawful Activities (Prevention) Act, 1967 - s.45(2) -
Cognizance of offences - Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 -
rr.3 and 4 - Time limit for making a recommendation by the
Authority - Time limit for sanction of prosecution - Appellant's
case that he was made an accused and a member of the
larger conspiracy - Allegations against him that on directions
of A 6, a terrorist and chief of People's Liberation Front of
India-PLFI, the appellant formed a company, which used
to directly/indirectly collect funds for the use of activities
of PLFI; and that the appellant criminally conspired and
formed an unlawful association with members of PLFI-A 7
and 14 - FIR against six persons alleging that Rs.25.83 lakhs
of demonetized currency brought to the concerned Bank by
A-6 - Appellant sought to quash suo motu letter in respect
of the investigation; sanction letter granting sanction qua
prosecution of the appellant as accused; and cognizance
order under IPC and UAPA - Division Bench refused to quash
the same - Challenge to:
* Author
316
[2024] 10 S.C.R.
Digital Supreme Court Reports
Held: No infirmity in the order granting sanction against the
appellant - It is not incumbent upon the authority to record
detailed reasons to support its conclusion and, as such, the orders
challenged, cannot be faulted with on that ground - Since trial
is underway and numerous witnesses already stand examined,
the challenge to the validity of the sanction qua the appellant
left it to be raised before the trial judge - Whether or not both
A-6 and the appellant are part of the same, continuing, ongoing
transactions, is to be decided on the basis of evidence adduced
at trial, and not at this stage, by this Court, thus, left to the
appellants to raise this issue before the trial judge - Furthermore,
as regards, application of exemption u/s.22A, this is a matter for the
trial court to consider and not for this Court to decide at this
stage, keeping in view that the trial is underway and proceeded
substantially. [Paras 18, 41, 46, 50]
Unlawful Activities (Prevention) Act, 1967 - s.45(2) - Cognizance
of offences - Validity of Sanction Order - Challenged to, at
what stage:
Held: Validity of sanction should be challenged at the earliest
instance available, before the Trial Court - If such a challenge is
raised at an appellate stage it would be for the person raising the
challenge to justify the reasons for bringing the same at a belated
stage - Such reasons would have to be considered independently
so as to ensure that there is no misuse of the right of challenge
with the aim to stall or delay proceedings - On facts, keeping in
view the submission made that the trial is underway and numerous
witnesses (113 out of 125) already stand examined, no finding given
on the challenge to the validity of the sanction qua the appellant
and leave it to be raised before the trial judge, who shall, if such
a question is raised decide, it promptly. [Paras 18, 51.1]
Unlawful Activities (Prevention) Act, 1967 - s.45(2) -
Cognizance of offences - Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 -
rr.3 and 4 - Time limit for making a recommendation by the
Authority - Time limit for sanction of prosecution - Timelines
in accordance with s.45(2) r/w rr.3 & 4 and the requir

## Text

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[2024] 10 S.C.R. 315 : 2024 INSC 718
Fuleshwar Gope
v.
Union of India & Ors.
(Criminal Appeal No. 3923 of 2024)
23 September 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]
Issue for Consideration
Issue arose as to whether the validity of the Sanction Order can be
challenged at any stage; whether violation of s.45(2) of the UAPA r/w
rr.3 and 4 of the 2008 Rules, if any, vitiates the proceedings, whether
violation of statutory timelines and the requirement of independent
review which includes application of mind, are necessary aspects
of procedure; whether the appellant's involvement were actually
independent of the ones in which A-6 and other members were
arrayed as accused; and whether the statutory exemption u/s.22
A of the UAPA applies to the appellant who claims to be unaware
of the affairs of the company.
Headnotes†
Unlawful Activities (Prevention) Act, 1967 - s.45(2) -
Cognizance of offences - Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 -
rr.3 and 4 - Time limit for making a recommendation by the
Authority - Time limit for sanction of prosecution - Appellant's
case that he was made an accused and a member of the
larger conspiracy - Allegations against him that on directions
of A 6, a terrorist and chief of People's Liberation Front of
India-PLFI, the appellant formed a company, which used
to directly/indirectly collect funds for the use of activities
of PLFI; and that the appellant criminally conspired and
formed an unlawful association with members of PLFI-A 7
and 14 - FIR against six persons alleging that Rs.25.83 lakhs
of demonetized currency brought to the concerned Bank by
A-6 - Appellant sought to quash suo motu letter in respect
of the investigation; sanction letter granting sanction qua
prosecution of the appellant as accused; and cognizance
order under IPC and UAPA - Division Bench refused to quash
the same - Challenge to:
* Author
316
[2024] 10 S.C.R.
Digital Supreme Court Reports
Held: No infirmity in the order granting sanction against the
appellant - It is not incumbent upon the authority to record
detailed reasons to support its conclusion and, as such, the orders
challenged, cannot be faulted with on that ground - Since trial
is underway and numerous witnesses already stand examined,
the challenge to the validity of the sanction qua the appellant
left it to be raised before the trial judge - Whether or not both
A-6 and the appellant are part of the same, continuing, ongoing
transactions, is to be decided on the basis of evidence adduced
at trial, and not at this stage, by this Court, thus, left to the
appellants to raise this issue before the trial judge - Furthermore,
as regards, application of exemption u/s.22A, this is a matter for the
trial court to consider and not for this Court to decide at this
stage, keeping in view that the trial is underway and proceeded
substantially. [Paras 18, 41, 46, 50]
Unlawful Activities (Prevention) Act, 1967 - s.45(2) - Cognizance
of offences - Validity of Sanction Order - Challenged to, at
what stage:
Held: Validity of sanction should be challenged at the earliest
instance available, before the Trial Court - If such a challenge is
raised at an appellate stage it would be for the person raising the
challenge to justify the reasons for bringing the same at a belated
stage - Such reasons would have to be considered independently
so as to ensure that there is no misuse of the right of challenge
with the aim to stall or delay proceedings - On facts, keeping in
view the submission made that the trial is underway and numerous
witnesses (113 out of 125) already stand examined, no finding given
on the challenge to the validity of the sanction qua the appellant
and leave it to be raised before the trial judge, who shall, if such
a question is raised decide, it promptly. [Paras 18, 51.1]
Unlawful Activities (Prevention) Act, 1967 - s.45(2) -
Cognizance of offences - Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 -
rr.3 and 4 - Time limit for making a recommendation by the
Authority - Time limit for sanction of prosecution - Timelines
in accordance with s.45(2) r/w rr.3 & 4 and the requirement of
independent review, if necessary aspects of procedure, and
non-adherence of which would vitiate proceedings under the
UAPA:
[2024] 10 S.C.R.
317
Fuleshwar Gope v. Union of India & Ors.
Held: Timelines mentioned in rr.3 and 4 are couched in mandatory
language and, thus, have to be strictly followed - This is keeping in
view that UAPA being a penal legislation, strict construction must be
accorded to it - Timelines imposed by way of statutory Rules are
a way to keep a check on executive power which is a necessary
position to protect the rights of accused persons - Independent
review by both the authority recommending sanction and the
authority granting sanction, are necessary aspects of compliance
with s.45 of the UAPA - As regards appellant's case that the
timelines were not followed, the first sanction was granted more than
a year after the recommendation was moved; and that there was
no independent review on the part of both recommending authority
and central government, as the sanction was merely granted within
a day each, the gap between the first action against A-6 and the
arrest of the appellant is a result of continuing investigation, as
the appellant was made an accused in the second supplementary
chargesheet, arising out of the same FIR; and since the investigation
continued, the gap cannot be termed fatal so as to render the
arrest of the appellant as unlawful or illegal - Grant of sanction
is within the stipulated time - Furthermore, it cannot be said that
there was non application of mind and lack of independent review.
[Paras 20, 28.4, 41, 51.2]
Code of Criminal Procedure, 1973 - ss.218-222 - Misjoinder
of charges - Violation of CrPC - Plea of the appellant that the
transactions in connection with which he has been brought
to the book were actually independent of the ones in which
A-6 and other members were arrayed as accused; and that
that there has been gross misuse of powers by the NIA and
a violation ss.218-224 CrPC:
Held: ss.218-222 not violated - Appellant falls under the latter
category-multiple persons in the same trial (appellant is A-17 out
of a total of 20 accused persons) - Joint or separate trial is a
decision to be taken by the trial judge at the beginning of the trial
considering the possibility of prejudice; and causing judicial delay,
if any - Language of s.223 is directory in nature, signified by the
use of word 'may' - Joint trial, if held, after having considered the
two factors given, cannot be said to be ipso facto prejudicial to
the parties - It is alleged that A-6 who is the Chief of PLFI, extorts
money from various persons and that the company A-20 of which
the appellant is a director, is used to legitimise the proceeds of
318
[2024] 10 S.C.R.
Digital Supreme Court Reports
such unlawful actions - However, appellant's case that there is no
connection between the charges levied on A-6 and the transactions
because of which he has been made an accused, whereas the
prosecution submits that both A-6 and A-17 are part of the same,
continuing, ongoing transactions - Whether or not actually the case
is a question to be decided on the basis of evidence adduced at
trial, and not at this stage, by this Court - Thus, it is left to the
appellants to raise this issue before the trial judge, who shall, if
such a question is raised, decide it promptly at the appropriate
stage. [Paras 44.3, 45, 46, 52.1]
Unlawful Activities (Prevention) Act, 1967 - s.22A - Offences
by companies - Statutory exemption u/s.22 A - Applicability
to the appellant who claims to be unaware of the affairs of
the company:
Held: Whether or not the exemption u/s.22A applies is a matter to
be established by the way of evidence for the person claiming such
exemption has to demonstrate that either he was not in charge
of the affairs of the company which has allegedly committed the
offence, or that he had made reasonable efforts to prevent the
commission of the offence - This is a matter for the trial court to
consider and not for this Court to decide at this stage, keeping
in view that the trial is underway and proceeded substantially.
[Paras 50, 52.2]
Unlawful Activities (Prevention) Act, 1967 - s.22A - Offences
by companies - Applicability of s.22A:
Held: For application of s.22A, offence has to committed by a
company; all persons who at the time of the offence were in control
of, or responsible for, the company's affairs shall be deemed
guilty; such person would be saved from guilt as under if they can
demonstrate that such act was not in their knowledge; they had
taken reasonable care to prevent such offence from taking place -
s.22A further provides that if it can be proved that the offence
committed by the company was with consent; in connivance of;
and attributable to neglect on the part of any promoter, director,
manager, secretary or any other officer of the company, then they
shall be held guilty. [Para 48]
Unlawful Activities (Prevention) Act, 1967 - s.45(2) -
Cognizance of offences - Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 -
[2024] 10 S.C.R.
319
Fuleshwar Gope v. Union of India & Ors.
rr.3 and 4 - Time limit for making a recommendation by the
Authority - Time limit for sanction of prosecution - Timelines,
whether directory or mandatory:
Held: Timelines, generally speaking, as part of statutory framework
are extremely essential to an effective, efficient and focused
machinery of criminal investigation, prosecution and trial - All
stakeholders to the smooth functioning of these procedures of
law must do their part in realising such timelines - They are
the essential aspects of right to speedy trial, which is enshrined
u/Art.21 of the Constitution of India. [Para 22]
'Application of mind' - Concept of:
Held: Application of mind must form part of any judicial, quasijudicial or administrative order - To demonstrate the same,
consideration of material placed before such authority must be
reflected - It being a cerebral exercise, it is not within reason
to set out any formula to explain what application of mind may
actually mean or look like - It is to be ascertained in the facts
and circumstances of each case - In the context of penal laws,
authorities tasked with evaluating material prior to granting of
sanction for prosecution, or the act of granting sanction itself
must apply their mind to each and every facet of the material
placed before it to arrive at the conclusion particularly so because
the effect of the task at hand is immense - Grant/non-grant of
sanction is what sets in motion the machinery of strict laws such
as UAPA or TADA. [Paras 25, 26]
Unlawful Activities (Prevention) Act, 1967 - s.45(2) -
Cognizance of offences - Procedure for sanction provided
under the UAPA:
Held: Court is enjoined from taking cognizance without previous
sanction either by the Central Government or the State Government,
as applicable, and such sanction shall only be given after the
report of the authority appointed by the Central Government or the
State Government, as the case may be, has been considered -
This authority is to make an independent review of the evidence
gathered and make a recommendation to the government within a
time bound manner - If any Court takes cognizance without prior
sanction of the Government, Centre or State, the same shall be
in contravention of the Act and thus, bad in law - This sanction is
not a function of the Government alone and it can only be granted
320
[2024] 10 S.C.R.
Digital Supreme Court Reports
after an independent body, albeit appointed by the Government,
makes an independent review of the evidence. [Paras 28, 28.1]
Unlawful Activities (Prevention) (Recommendation & Sanction
of Prosecution) Rules, 2008 - rr.3 and 4 - Time limit for
making a recommendation by the Authority - Time limit for
sanction of prosecution - Construction of:
Held: Penal statutes are statutes to be interpreted strictly - Rules
flowing from statutory power, have the effect of a statute - s.52 of
the UAPA grants power to the Central Government to make Rules
for the purpose of carrying out the provisions of the Act - s.52(2)(ee)
enables the Government to prescribe the time for recommendation
and grant of sanction u/s.45 - Rules are unequivocal in both, using
the word 'shall' as also providing a specfic time period for both
activities, i.e., making recommendation and granting sanction - 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 - 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 - 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 -
Timelines in such cases, serve as essential aspects of checks and
balances and of course, are unquestionably important - Legislative
intent is clear - Rules made by virtue of statutory powers prescribe
both a mandate and a time limit - Same has to be followed - Strict
adherence to the timeline mentioned in rr. 3 and 4 of the 2008,
Rules to apply prospectively. [Paras 31, 32, 33]
Unlawful Activities (Prevention) Act, 1967 - s.45(2) -
Cognizance of offences - Independent review - Meaning -
[2024] 10 S.C.R.
321
Fuleshwar Gope v. Union of India & Ors.
Plea that since both the recommending and the granting
authorities took merely a day each in performing their
respective functions, the requirement of an independent review
which is to be undertaken by both authorities has been left
unfulfilled thereby vitiating the sanction in question:
Held: Independent review would mean a contemplation or study
of the material gathered by the investigating officer to conclude
as to whether or not a sanction to proceed under the provisions
of the UAPA ought to be granted - Similarly, at the next stage,
the sanctioning authority is to mull over and critically notice
both the materials gathered as also the conclusion drawn by
the recommending authority, in its act of granting sanction -
Independence of this authority is sine qua non, without which it
would have lost its entire purpose - Plea of the appellant that short
amount of time taken in recommending and granting sanction,
against him which is a sign of non-application of mind and lack of
independent review, cannot be accepted - There is no question,
as there rightly cannot be, on the competence of either of the
authorities - Thus, 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 - Thus,
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 - 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 - 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 - 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 - Thus, no infirmity in the order
granting sanction against the appellant - It is not incumbent upon
such authority to record detailed reasons to support its conclusion
and, as such, the orders challenged, cannot be faulted with on
that ground. [Paras 37, 40, 41]
322
[2024] 10 S.C.R.
Digital Supreme Court Reports
Words and phrases - Word independent - Meaning of:
Held: Act, or evaluation is made in a way which is lone standing
or which does not rely on any other factor, such as previous
consideration or evaluation by another authority, to arrive at its
conclusion - Independence, which is the state of being independent
would also be instructive in the understanding - Review, as a
concept is to be understood for it is the coming together of these
two aspects which would form the understanding of the term
'independent review' - Import of the term independent review as
can be understood, is a re-examination, scrutiny or critique of
something which is not dependent or subject to control by any
other factor or authority. [Paras 35-37]
Case Law Cited
A.R. Antulay v. Ramdas Sriniwas Nayak [1984] 2 SCR 914 : (1984)
2 SCC 500 - followed.
State of Karnataka v. S. Subbegowda [2023] 11 SCR 19 : 2023
SCC OnLine SC 911; Nasib Singh v. State of Punjab [2021] 13
SCR 566 : (2022) 2 SCC 89; State of U.P. v. Paras Nath Singh
[2009] 8 SCR 85 : (2009) 6 SCC 372; State (NCT of Delhi) v. Navjot
Sandhu [2005] Supp. 2 SCR 79 : (2005) 11 SCC 600; Union of
India v. Deoki Nandan Aggarwal [1991] 3 SCR 873 : 1992 Supp
(1) SCC 323; Institute of Chartered Accountants of India v. Price
Waterhouse [1997] Supp. 2 SCR 267 : (1997) 6 SCC 312; Shiv
Shakti Coop. Housing Society v. Swaraj Developers [2003] 3 SCR
762 : (2003) 6 SCC 659 - relied on.
Pradeep Ram v. State of Jharkhand & Anr. [2019] 8 SCR 824 :
(2019) 17 SCC 326; Bhushan Kumar & Anr. v. State (NCT of
Delhi) [2012] 2 SCR 696 : (2012) 5 SCC 424; State of Gujarat
v. Afroz Mohammed Hasanfatta [2019] 1 SCR 1104 : (2019) 20
SCC 539; Ashraf Khan v. State of Gujarat (2012) 11 SCC 606;
State of Gujarat v. Anwar Osman Sumbhaniya [2019] 2 SCR
749 : (2019) 18 SCC 524; Anirudhsinhji Karansinhji Jadeja v.
State of Gujarat [1995] Supp. 2 SCR 637 : (1995) 5 SCC 302;
Rambhai Nathabhai Gadhvi v. State of Gujarat [1997] Supp. 3
SCR 356 : (1997) 7 SCC 744; Seeni Nainar Mohammed v. State
[2017] 3 SCR 312 : (2017) 13 SCC 685; Jamiruddin Ansari v.
CBI [2009] 7 SCR 759 : (2009) 6 SCC 316; Peoples' Union for
Civil Liberties v. Union of India [2004] 1 SCR 232 : (2004) 9
SCC 580; Sanjay Dutt v. State through CBI [1994] Supp. 3 SCR
[2024] 10 S.C.R.
323
Fuleshwar Gope v. Union of India & Ors.
263 : (1994) 5 SCC 410; Arup Bhuyan v. State of Assam [2023]
8 SCR 496 : (2023) 8 SCC 745; Central Bureau of Investigation
v. Ashok Kumar Aggarwal (2014) 14 SCC 295; Parkash Singh
Badal v. State of Punjab [2006] Supp. 10 SCR 197 : (2007)
1 SCC 1; Dinesh Kumar v. Airport Authority of India [2011] 13
SCR 260 : (2012) 1 SCC 532 Central Bureau of Investigation
& Ors. v. Pramila Virendra Kumar Agarwal (2020) 17 SCC 664;
P.K. Pradhan v. State of Sikkim [2001] 3 SCR 1119 : (2001) 6
SCC 704; Rangku Dutta v. State of Assam [2011] 8 SCR 639 :
(2011) 6 SCC 358; Hussein Ghadially v. State of Gujarat [2014]
9 SCR 364 : (2014) 8 SCC 425; Mahesh Kariman Tirki v. State
of Maharashtra, SLP (Crl.) Nos.11072-11073/2022; Binod Ganjhu
v. Union of India, W.P(Crl) 308 of 2022; State of Rajasthan v.
Mohinuddin Jamal Alvi (2016) 12 SCC 608; Roopesh v. State of
Kerala, 2022 SCC OnLine Ker 1372; Vijay Rajmohan v. Central
Bureau of Investigation (Anti-Corruption Branch) [2022] 19 SCR
563 : (2023) 1 SCC 329; Standard Chartered Bank v. Directorate
of Enforcement [2005] Supp. 1 SCR 49 : (2005) 4 SCC 530; State
of Jharkhand v. Ambay Cements [2004] Supp. 6 SCR 125 : (2005)
1 SCC 368; Manjit Singh v. CBI [2011] 1 SCR 997 : (2011) 11
SCC 578; State of T.N. v. Sivarasan [1996] Supp. 8 SCR 243 :
(1997) 1 SCC 682; Priya Indoria v. State of Karnataka [2023]
15 SCR 525 : (2024) 4 SCC 749; State of U.P. v. Manbodhan
Lal Srivastava [1958] 1 SCR 533 : 1957 SCC OnLine SC 4;
State of U.P. v. Babu Ram Upadhya [1961] 2 SCR 679 : 1960
SCC OnLine SC 5; Bachahan Devi v. Nagar Nigam, Gorakhpur
[2008] 2 SCR 424 : (2008) 12 SCC 372; Vijay Dhanuka v. Najima
Mamtaj [2014] 4 SCR 171 : (2014) 14 SCC 638; Union of India v.
A.K. Pandey (2009) 10 SCC 552; C.S. Krishnamurthy v. State of
Karnataka [2005] 2 SCR 1163 : (2005) 4 SCC 81; State of M.P.
v. Harishankar Bhagwan Prasad Tripathi [2010] 9 SCR 1148 :
(2010) 8 SCC 655; State of Maharashtra v. Mahesh G. Jain
[2013] 3 SCR 850 : (2013) 8 SCC 119; Judgebir Singh v. National
Investigation Agency [2023] 6 SCR 1 : 2023 SCC OnLine SC
543; State of Punjab v. Mohd. Iqbal Bhatti [2009] 11 SCR 790 :
(2009) 17 SCC 92; State of Bihar v. P.P. Sharma, 1992 Supp (1)
SCC 222; Superintendent of Police (CBI) v. Deepak Chowdhary
[1995] Supp. 2 SCR 818 : (1995) 6 SCC 225; Mohd. Iqbal M.
Shaikh v. State of Maharashtra [1998] 2 SCR 734 : (1998) 4
SCC 494; Balbir v. State of Haryana [1999] Supp. 4 SCR 120 :
(2000) 1 SCC 285; R. Dineshkumar v. State [2015] 5 SCR 605 :
324
[2024] 10 S.C.R.
Digital Supreme Court Reports
(2015) 7 SCC 497; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla
[2007] 2 SCR 862 : (2005) 8 SCC 89; Susela Padmavathy Amma
v. Bharti Airtel Ltd [2024] 3 SCR 647 : 2024 SCC OnLine SC
311; N. Rangachari v. BSNL [2007] 5 SCR 329 : (2007) 5 SCC
108; Central Bank of India v. Asian Global Ltd. [2010] 7 SCR
694 : (2010) 11 SCC 203; Gunmala Sales (P) Ltd. v. Anu Mehta
[2014] 10 SCR 1117 : (2015) 1 SCC 103; Rajesh Viren Shah v.
Redington India Ltd. (2024) 4 SCC 305 - referred to.
Montreal Street Railway Company v. Normandin, LR (1917) AC
170 - referred to.
Books and Periodicals Cited
Maxwell in Interpretation of Statutes (11th Edn.); Cambridge
dictionary; Merriam Webster dictionary; Black's Law Dictionary;
Burton's Legal Thesaurus Third Edition Page 473.
List of Acts
Unlawful Activities (Prevention) Act, 1967; Unlawful Activities
(Prevention) (Recommendation & Sanction of Prosecution) Rules,
2008; Criminal Law Amendment Act, 1908; Code of Criminal
Procedure, 1973; National Investigation Agency Act, 2008.
List of Keywords
Validity of Sanction Order; Violation of statutory timelines;
Requirement of independent review; Application of mind;
Statutory exemption u/s.22 A of the UAPA; Time limit for
making recommendation by Authority; Time limit for sanction of
prosecution; Terrorist and chief of People's Liberation Front of
India-PLFI; Activities of PLFI; Unlawful association; Demonetized
currency; Quash suo motu letter; Investigation; Sanction letter;
Penal legislation; Strict construction; Grant of sanction; Nonapplication of mind; Violation of CrPC; Timelines, whether directory
or mandatory; Procedure for sanction under the UAPA; Strict
adherence to timeline.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3923
of 2024
From the Judgment and Order dated 21.03.2023 of the High Court
of Jharkhand at Ranchi in WPCR No. 443 of 2022
[2024] 10 S.C.R.
325
Fuleshwar Gope v. Union of India & Ors.
Appearances for Parties
Balaji Srinivasan, Rohan Dewan, Vishwaditya Sharma, Ms. Harsha
Tripathi, Advs. for the Appellant.
Vikramjeet Banerjee, A.S.G., Ms. Swarupama Chaturvedi, Sr. Adv.,
Ms. Rukhmini Bobde, Raghav Sharma, Madhav Singhal, Ms. Zeenat
Malick, Arvind Kumar Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
Leave granted.
2.
Impugned in this appeal by special leave is a judgment of the High
Court of Jharkhand at Ranchi dated 21st March, 2023 in W.P.(Crl.)
No.443 of 2022, whereby the learned Division Bench refused to
quash -
(a) Suo motu letter No.F.No.11011/51/2017/IS-IV dated 16th January,
2018 in respect of the investigation of Bero P.S. Case No.
67/2016 dated 10th November, 2016;
(b) Sanction letter No.11011/51/2017/NIA dated 22nd July, 2020
granting sanction qua prosecution of the present appellant as
accused No.17 in R.C.-02/2018/NIA/DLI; and
(c)
Cognizance order dated 25th July, 2020 u/s 120B of the Indian
Penal Code r/w Section 17, 18, 21 & 22 of U.A. (P) Act, 1967,
u/S 17(i) & (ii) of CLA Act, 1908 and charges framed on 16th
March, 2021 pending trial before the Court of learned Special
Judge, NIA, Ranchi;
It is to be noted that initially quashing was also sought in respect
of sanction vide letter No.06/Avi-01/21/2017-2637 dated 12th May,
2017 granted by the Principal Secretary, Department of Home,
Prisons & Disaster Management, Ranchi. However, paragraph 4
of the impugned judgment records that this specific prayer was not
pressed before it.
BACKGROUND FACTS
3.
The facts necessary for the disposal of the present appeal, shorn
of unnecessary detail are :-
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3.1 It is alleged that the appellant, Fuleshwar Gope1 is an associate
of the People's Liberation Front of India2 and is acquainted with
the facts that Dinesh Gope @ Kuldeep Yadav @ Banku (A-6)
is a terrorist and the chief of PLFI who collects money through
extortion. He is further said to have criminally conspired and
formed an unlawful association with members of PLFI, namely,
Dinesh Gope, Sumant Kumar @ Pawan Kumar (A-7) and Hira
Devi @ Anita Devi (A-14).
3.2 On the direction of A-6, it is alleged that the appellant formed
a company M/s. Shiv Shakti Samridhi Infra Pvt. Ltd. (A-20)
along with A-14 which was more in the nature of a partnership.
This company's bank account was used to directly/indirectly
collect funds from legitimate or illegitimate sources for the use
of activities of PLFI on the directions of A-6.
3.3 On 10th November, 2016, FIR No.67 of 2016 at Bero, Jharkhand
was registered against six persons under Section 212, 213/34,
414 of the Indian Penal Code, 1860 and Sections 13, 17, 40
of the Unlawful Activities (Prevention) Act, 19673 and Section
17 of the Criminal Law Amendment Act, 1908 on the allegation
that Rs.25.83 lakhs of demonetized currency was brought to
the concerned branch of the State Bank of India by A-6.
3.4 On 9th January, 2017, chargesheet No.01/2017 was filed and
the learned Judicial Magistrate 1st Class took cognizance
thereof. On 18th March, 2017, Deputy Commissioner, Ranchi
sought sanction to prosecute which was granted by the
Principal Secretary, Department of Home, Prisons & Disaster
Management. However, subsequently, the Ministry of Home
Affairs,4 Government of India issued a transfer order in respect
thereto on 16th January, 2018 and as such the FIR was reregistered as a case under the National Investigation Agency.5
MHA further initiated suo-motu sanction on 16th October, 2019
against twelve accused persons, A-1 to A-12.
1
Hereinafter referred to as A-17
2
Abbreviated as 'PLFI'
3
Abbreviated as 'UAPA'
4
Abbreviated as 'MHA'
5
Abbreviated as "NIA"
[2024] 10 S.C.R.
327
Fuleshwar Gope v. Union of India & Ors.
3.5 On 21st October, 2019, a supplementary chargesheet was filed
by NIA wherein the Appellant was named as a witness for the
Prosecution, as PW-65. On 5th November, 2019, Special Judge
NIA took cognizance of the same.
3.6 The Appellant was subsequently arrested on 13th July, 2020.
On 22nd July, 2020, suo-motu sanction was issued against an
additional seven persons (A-13 to A-20), the Appellant is A-17. A
second Supplementary Chargesheet was filed the next day i.e.
23rd July, 2020 under Sections 17, 18, 21, and 22C of the UAPA.
3.7 On 14th November, 2022, the Appellant filed a Writ Petition
before the High Court seeking for quashing of the Sanction
Order dated 22nd July, 2020, taking of the cognizance of the
second Supplementary Chargesheet vide an order 25th July,
2020 and framing of charges by order dated 16th March, 2021.
3.8 It is in this backdrop, that the judgment impugned was passed.
IMPUGNED JUDGMENT
4.
Before the High Court it was contended primarily that Sections
6(2) & (3) of the National Investigation Agency Act, 20086 were not
complied with and thereby the statutory timelines mentioned therein
were completely ignored. Further, it was argued that Sections 45(1)
& (2) of the UAPA were not adhered to.
5.
The High Court framed the following issues for its consideration:
"8. ...
(i) Whether the Central Government has got suo-moto
power to handover the investigation to the N.I.A. once the
investigation has been completed by the District Police.
(ii) Whether the Order of Sanction dated 22.07.2020 issued
by the Under Secretary to the Government of India in
exercise of power conferred under Section 45(2) of U.A.(P)
Act, 1967 suffers from any illegality.
(iii) Whether the order taking cognizance against the
petitioner under Section 120B I.P.C read with Sections 17,
6
Hereinafter 'NIA, 2008'
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18, 21 & 22C of U.A.(P) Act, 1967 and Section 17(i) & (ii)
of C.L.A Act, 1908 suffers from any infirmity."
5.1 The Court in deciding the first issue placed reliance on Pradeep
Ram v. State of Jharkhand & Anr.,7 and more particularly
paragraph 49 thereof, to hold that there is no lack of jurisdiction
on the part of NIA to carry out further investigation and submit
the supplementary report(s).
5.2 The second issue concerned the legality and propriety of
sanction which was challenged on the ground that Rule 3
of the Unlawful Activities (Prevention) (Recommendation &
Sanction of Prosecution) Rules, 20088 was not followed. The
Court referred to the contents of the sanction order dated 22nd
July, 2020, impugned before it, and then concluded that the
timeline stipulated in Rule 3 referred to supra, has been strictly
adhered to.
5.3 The third issue is as to whether the cognizance order is afflicted
by non-application of mind. The Court considered the judgment
in Bhushan Kumar & Anr. v. State (NCT of Delhi)9 and State
of Gujarat v. Afroz Mohammed Hasanfatta10 to examine the
power of the Magistrate at the stage of issuing process or
summons. It was finally concluded that the approach of the
learned Special Judge in dealing with the material placed before
them by way of case diary, statements of various prosecution
witnesses, other documents and material objects, requires no
interference.
6.
Aggrieved by the above findings of the High Court, the appellant is
before this Court.
ARGUMENTS ADVANCED
7.
We have heard Mr. Balaji Srinivasan, learned Advocate-on-Record for
the appellant and Mr. Vikramjit Banerjee, learned Additional Solicitor
General of India and Ms. Swarupama Chaturvedi, learned Senior
Counsel for the Union of India.
7
[2019] 8 SCR 824 : (2019) 17 SCC 326
8
Hereinafter '2008 Rules'
9
[2012] 2 SCR 696 : (2012) 5 SCC 424
10
[2019] 1 SCR 1104 : (2019) 20 SCC 539
[2024] 10 S.C.R.
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Fuleshwar Gope v. Union of India & Ors.
8.
In assailing the impugned judgment, the appellants have advanced
the following contentions.
8.1 Section 45 of UAPA read with Rules 3 and 4 of the 2008
Rules provided for a detailed procedure with respect to grant
of sanction along with a timeline within which the same is to
be granted. The impugned sanction is not in consonance with
the statutory mandate as the same was issued 2 years and 11
months after the incident and 2 years and 6 months after the
letter dated 12th May, 2017.
8.2 Clause (2) of Section 45 of the UAPA was violated as the
requirement of 'independent review' while according sanction
was not complied with. It is contended that the sanction order
was passed mechanically without supplying any reasons or
application of mind. The orders are stereotypical and standard.
It is submitted that Section 45 requires independent scrutiny and
application of mind at each stage - by requisitioning authority;
by an independent agency and then by the sanctioning authority.
Since, in the present facts the same was not complied with,
sanction orders are liable to be quashed.
8.3 Validity of sanction is a question that can be raised at any
stage of proceedings. There are instances of this Court setting
aside convictions after completion of trial and even quashing
entire proceedings upon the filing of bail application, before trial
on the ground of invalidity of sanction. In furtherance of this
submission, various judgments have been referred to. Ashraf
Khan v. State of Gujarat;11 State of Gujarat v. Anwar Osman
Sumbhaniya;12 Anirudhsinhji Karansinhji Jadeja v. State of
Gujarat;13 Rambhai Nathabhai Gadhvi v. State of Gujarat;14
Seeni Nainar Mohammed v. State;15 and Jamiruddin Ansari
v. CBI.16
11
[2012] 12 SCR 1033 : (2012) 11 SCC 606
12
[2019] 2 SCR 749 : (2019) 18 SCC 524
13
[1995] Supp. 2 SCR 637 : (1995) 5 SCC 302
14
[1997] Supp. 3 SCR 356 : (1997) 7 SCC 744
15
[2017] 3 SCR 312 : (2017) 13 SCC 685
16
[2009] 7 SCR 759 : (2009) 6 SCC 316
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8.4 Both the requisitioning and sanctioning authorities have not
considered that mens rea is absent which, as is well established,
is a requisite to constitute a criminal offence unless explicitly
excluded. Reference is made to Peoples' Union for Civil
Liberties v. Union of India17 and Sanjay Dutt v. State through
CBI.18 In referring to latter judgment, reliance is placed on the
holding that if a reasonable interpretation exists which permits
the avoidance of penalty, Courts are bound to take that approach.
8.5 The appellant was not made an accused in the first module,
i.e., FIR No.67/2016 nor in the second module (initiated by an
alleged hawala transaction which took place on 22nd May 2018)
and sanction in respect thereof was granted by the Central
Government on 16th October, 2019. He was, in fact, made an
accused in an independent transaction involving A-20 regarding
which the sanction order (impugned herein) was issued on 22nd
July, 2020.
8.6 The proviso to Section 22A exempts a person who is not in
charge of and responsible for the affairs of the company, from
prosecution. The appellant contends that he has wrongly been
roped into the proceedings even when he is a Munshi working as
a daily wager. He is illiterate and does not understand business
transactions. A-6 took undue advantage of his situation, once
A-7 and A-14 stole his identity.
8.7 No particular role has been ascribed to the appellant. This case
by the NIA has been thrust upon him given, (a) he is a director
in the company which is A-20; (b) the said company allegedly
received funds that were to be used by PLFI; (c) he hails from
the same locality and is a distant acquaintance of Dinesh Gope
who is the leader of the PLFI.
9.
The stand of the respondent - Union of India, as can be understood
from the materials on record and the written submissions, is that -
9.1 The sanction order that has led to the present proceedings
has been granted after following due process. The NIA
recommended prosecution of the accused persons including
17
[2004] 1 SCR 232 : (2004) 9 SCC 580
18
[1994] Supp. 3 SCR 263 : (1994) 5 SCC 410
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Fuleshwar Gope v. Union of India & Ors.
the present appellant vide its letter dated 14th July, 2020. The
Central Government, in accordance with Section 45(2) of the
UAPA referred the investigation report to the authority by letter
dated 15th July, 2020, comprising two members for the purpose
of independent review. The authority by its letter dated 16th July,
2020 forwarded its report to the Ministry within the stipulated
time period under Rule 3 of 2008 Rules. In other words, there
is no violation of the Rules.
9.2 The impugned sanction order has been passed considering all
the relevant materials on record, including the recommendation
of the authority constituted under Section 45(2) of the UAPA.
The authority consisted of a retired High Court Judge and the
retired Law Secretary.
9.3 Independent review took place at all relevant stages pursuant to
which Central Government accorded sanction. Merely because
the sanction was granted within one day of the recommendation,
it cannot be said that there was non-application of mind.
9.4 Second and Third Module as explained in the supplementary
chargesheets are not independent and separate transactions
from that initiated in the FIR, but rather, are a part of the same
continuing transaction undertaken by the accused persons to
channel the Proceeds of Terrorism. The NIA on being entrusted
with the investigation, had investigated the same and submitted
the two supplementary chargesheets.
9.5 The appellant is an active member of a terrorist gang and a close
associate of Dinesh Gope (A-6) and was involved in collecting
and channelizing funds by forming companies. A-20 of which
the Appellant/A-17 was a director, served as a front to launder
proceeds of terrorism. The claim of the appellant that A-7 &
A-14 stole his identity is unsustainable and quashing cannot
be placed on such a vague plea.
9.6 The trial is at a very advanced stage, and as such, no discretion
be exercised in quashing the criminal proceedings.
10. At the outset, we clarify that despite the last of the submissions
made by the learned Additional Solicitor General, the Appellant
invited findings on his submissions. Hence, we proceed to decide
the issue on merits.
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QUESTIONS FOR CONSIDERATION BEFORE THIS COURT
11. Having considered the factual matrix and the submissions advanced
by the learned counsel for the parties the following questions arise
for our consideration:-
(i)
Whether the Validity of the Sanction Order can be challenged
at any stage?
(ii)
Whether a violation of Section 45(2) of the UAPA r/w Rules 3
& 4, if any, vitiates the proceedings? In other words, whether
violation of - (a) statutory timelines and (b) the requirement of
independent review which includes application of mind, are
necessary aspects of procedure without which, any transaction
under the UAPA shall be compromised to a point that its sanctity
is rendered questionable?
(iii) Whether in the present facts, the argument of the appellant
that the transactions in connection with which he has been
brought to the book were actually independent of the ones in
which Dinesh Gope (A-6) and other members were arrayed as
accused, has any merit?
(iv) Whether, in the facts, the statutory exemption under Section
22 A of the UAPA applies to the appellant who claims to be
unaware of the affairs of the company?
CONSIDERATION
(a) UAPA : An Introduction
12. The preamble of the Act reads as under:-
"An Act to provide for the more effective prevention of
certain unlawful activities of individuals and associations
[,and for dealing with terrorist activities,] and for matters
connected therewith."
13. A Bench of Three Judges of this Court (of which both of us were
members) considered the objective of the Act in the following terms
in Arup Bhuyan v. State of Assam19:-
19
[2023] 8 SCR 496 : (2023) 8 SCC 745
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Fuleshwar Gope v. Union of India & Ors.
"85. The main objective of the UAPA is to make powers
available for dealing with activities directed against the
integrity and sovereignty of India. It is also required to
be noted that pursuant to the recommendation of the
Committee on National Integration and Regionalisation
appointed by the National Integration Council Act on whose
recommendation the Constitution (Sixteenth Amendment)
Act, 1963 was enacted, UAPA has been enacted.