Sanction for prosecution under UAPA or IPC stands vitiated if it is not granted within stipulated time, and with application of mind: Kerala HC

The Kerala High Court strictly construes the provisions of the statute, in order to make the restriction on the fundamental rights guaranteed under the Constitution reasonable.

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A division bench of Justices K. Vinod Chandran and C. Jayachandran of the Kerala High Court on March 17 handed down a significant judgment in the context of the prosecution of the offences under the Unlawful(Prevention) Activities Act[UAPA]. The bench held that the stipulation of time to grant sanction for prosecution under the UAPA is a mandatory and sacrosanct requirement and failure to adhere to it, will vitiate the sanction order. Besides, the bench ruled that though Section 45(2) of the UAPA makes it mandatory for the 'Authority' to make an independent review of the evidence gathered in the course of the investigation and make a recommendation within such time as prescribed, to the Government, it does not absolve the latter from applying its mind before passing a final order of according or refusing the sanction.

The bench was ruling on a revision petition filed by one Roopesh who is alleged to be a member of the Communist Party of India [Maoist] which is a proscribed organisation under the UAPA. He was charged under Sections 143[Unlawful assembly], 147[rioting], 148[Rioting, armed with deadly weapon], 124A[Sedition] read with 149[Every member of unlawful assembly guilty of offence committed in prosecution of common object.] IPC and Section 20[Punishment for being member of terrorist gang or organisation] and 38[Offence relating to membership of a terrorist organisation.] of the UAPA. Before the high court, he contended that the sanction granted to prosecute him was not valid on account of the breach of the stipulated time limit under the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008[Rules of 2008] and as a consequence, the cognisance taken by the Special Court stood vitiated.

The case involved the interpretation of Section 45 of the UAPA, in particular, Section 45(2). Section 45 bars a court from taking any cognisance of the offence under UAPA without the previous sanction of the Central Government or the state government, as the case may be. In the present case, the appropriate government was the state government.