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TMI Blog2024 (9) TMI 1681X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. There are no hesitation in holding that while the treasured right of an Accused to avail all remedies available to him recognised under law, in ordinary circumstances challenge to sanction under UAPA should be raised at the earliest possible 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. 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? - HELD THAT:- The rules provide a seven day period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear intention on the part of the Legislature. A compulsion has been imposed, and for compliance with that compulsion, a timeline has been provided. While the legislation is aimed at curbing unlawful activities and practices detrimental to national security and accordingly, provides the authorities of the Government ample power to undertake and complete all procedures and processes permissible under law to that end, at the same time the interest of Accused persons must also be safeguarded and protected. It is expected of the Executive, in furtherance of the ideal of protection of national security, that it would work with speed and dispatch - There have to be certain limitations within which administrative authorities of the Government can exercise their powers. Without such limitations, power will enter the realm of the unbridled, which needless to state is, antithetical to a democratic society. Timelines in such cases, serve as essential aspects of checks and balances and of course, are unquestionably important. Independent review - bone of contention in this regard is that since both the recommending and the granting authorities took merely a day each in performing their respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds that a separate trial would not be contrary to law unless a miscarriage of justice can be demonstrated. Similarly, a joint trial, if held, after having considered the two factors given above, cannot be said to be ipso facto prejudicial to the parties. Whether, in the facts, the statutory exemption Under Section 22A of the UAPA applies to the Appellant who claims to be unaware of the affairs of the company? - HELD THAT:- For Section 22A to apply : (a) offence has to committed by a company; (b) all persons who at the time of the offence were in control of, or responsible for, the company's affairs shall be deemed guilty; (c) such person would be saved from guilt as under (b) if they can demonstrate that such act was (i) not in their knowledge; (ii) they had taken reasonable care to prevent such offence from taking place. The section further provides that if it can be proved that the offence committed by the company was (1) with consent; (2) in connivance of; (3) 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 - this Court cannot, at this stage, decide whether Section 22A appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Under Section 120B of the Indian Penal Code r/w Section 17, 18, 21 22 of U.A. (P) Act, 1967, Under Section 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 : 3.1 It is alleged that the Appellant, Fuleshwar Gope Hereinafter referred to as A-17 is an associate of the People's Liberation Front of India Abbrev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 2008 Hereinafter 'NIA, 2008' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ths 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 (2012) 11 SCC 606; State of Gujarat v. Anwar Osman Sumbhaniya (2019) 18 SCC 524; Anirudhsinhji Karansinhji Jadeja v. State of Gujarat ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2023) 8 SCC 745: 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. It appears that the National Integration Council appointed a Committee on National Integration and Regionalisation to look into, inter alia, the aspect of putting reasonable restrictions in the interests of sovereignty and integrity of India and thereafter the UAPA has been enacted. Therefore, the UAPA has been enacted to make powers available for dealing with the activities directed against integrity and sovereignty of India. 86. Now let us consider the Preamble to the UAPA, 1967. As per Preamble, the UAPA has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Therefore the aim and object of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orist gang or a terrorist organisation. Explanation.-For the purposes of this Act, it is hereby declared that the expression proceeds of terrorism includes any property intended to be used for terrorism; 14.2. Section 45 of the Act is extracted below for ready reference. 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 where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. (2) Sanction for prosecution Under Sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record and the recommendations of the Authority, is satisfied that a prima facie case is made out against the Accused persons/entities under the relevant sections of law and hereby accords sanction for prosecution Under Section 45(1) of the Unlawful Activities (Prevention) Act, 1967... BY ORDER AND IN THE NAME OF THE PRESIDENT OF INDIA Sd/- (Dharmendar Kumar) Under Secretary to the Government of India (Emphasis supplied) 16. The question of validity of sanction being challenged, and at what stage it may be permissible, has engaged this Court on few previous occasions, albeit in context of different statutes. It shall be useful to refer to them. 16.1. In Central Bureau of Investigation v. Ashok Kumar Aggarwal (2014) 14 SCC 295 this Court noted the importance of the process of grant of sanction. It has been termed not an acrimonious exercise but a solemn and sacrosanct act in the context of the Prevention of Corruption Act, 1988 Hereinafter, 'PC Act' . The Court summarised the essentials for validity of prosecution as under: 16. In view of the above, the legal propositions can be summarised as under: 16.1. The prosecution must send the entire relevant record to the sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category carved out by this Court in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193], the challenge to which can always be raised in the course of trial. 16.4. In Central Bureau of Investigation Ors. v. Pramila Virendra Kumar Agarwal (2020) 17 SCC 664, while referring to Dinesh Kumar (supra), this Court reiterated the distinction between absence of sanction and the alleged invalidity of sanction on account of non-application of mind. It was held that absence as in issue can be raised at the threshold, however, invalidity, as in issue can only be raised at trial. 16.5. A Bench of three learned Judges in P.K. Pradhan v. State of Sikkim (2001) 6 SCC 704 discussed the application of Section 197 of the Code of Criminal Procedure, 1973 Hereinafter 'Code of Criminal Procedure' . Having referred to a host of precedents, it was concluded that: 15. ...It is well settled that question of sanction Under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age 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 Code of Criminal Procedure provide mechanisms for the sanction and subsequent actions to be saved from being invalidated due to any irregularity etc. Section 465 Code of Criminal Procedure provides for the possibility that a sanction granted Under Section 197 Code of Criminal Procedure 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was moved. This contention ties into another submission 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. Timelines, whether directory or mandatory? 21. Let us now consider one of the primary arguments of the Appellants, i.e., non-following of the statutory timelines. 22. Timelines, generally speaking, as part of statutory framework are extremely essential to an effective, efficient and focused machinery of criminal investigation, prosecution and trial. It cannot be gainsaid that 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 Under Article 21 of the Constitution of India. 23. The Appellant's objections regarding timelines is two-fold. One, that there is a large gap between the first sanction and his own arrest, given that he is allegedly part of the same continuing transaction according to the Respondent union, and two, that since the authority despite having been granted a seven day period to consider the materials gather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand is immense. The grant/non-grant of sanction is what sets in motion the machinery of strict laws such as UAPA or the Terrorist and Disruptive Activities (Prevention) Act, 1987 Hereinafter referred as 'TADA' . Given the severity of these laws and the nature of activities with which they are associated, the effect that they have on the person Accused thereunder is not only within the realm of law but also drastically effects social and personal life. It is only after the authority having been handed this task, is of the considered view that sanction can be granted, should it be so done. 27. The procedures qua sanctions provided in such legislations are meant to be followed strictly, to the letter more so to the spirit. Even the slightest of variation from the written word may render the proceedings arising therefrom to be cast in doubt. The general principle, when the provision is couched negatively has been noticed by this court in Rangku Dutta v. State of Assam (2011) 6 SCC 358 in the following terms: 18. It is obvious that Section 20-A(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e government within a time bound manner. 28.1. What flows from the above description of Section 45 is that if any Court takes cognizance without prior sanction of the Government, Centre or State, the same shall be in contravention of the Act and therefore bad in law. This sanction is not a function of the Government alone and it can only be granted after an independent body, albeit appointed by the Government, makes an independent review of the evidence. 28.2. The fact that sanction has been granted is not in dispute. What is disputed by the Appellant is in which the manner the same has been granted. According to the case put up by him, the authority's recommendation, and immediately thereafter the Government's grant of sanction is evidence of non-application of mind and stereotypical or 'cyclostyle' orders. 28.3. Although we have taken note of the facts leading up the present appeal, for immediate reference we may recall here that the NIA vide its letter dated 14th July 2020 recommended prosecution for further seven persons (A-13 to A-20); the Ministry vide letter dated 15th July 2020 forwarded the investigation report to the authority; the authority, the next day, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicature at Bombay (Nagpur Bench), in Criminal Appeal Nos. 136 137 of 2017 titled as Mahesh Kariman Tirki v. State of Maharashtra' on remand from this Court (by order dated 19th April 2023 passed in SLP (Crl.)Nos. 11072-11073/2022 for decision on merits as also validity of sanction), regarding timelines mentioned in the 2008 Rules, held as under: 153. Though the word shall no doubt connotes the sense of urgency, but the consequence of non-compliance in strict sense which flows from the wordings in the rule, has not been spelt out under the statute. Neither at an initial stage of the prosecution nor even before us the defence has projected any prejudice from strict non-compliance of time frame. 154. The very purport of the provision is to convey that the process has to be complied with and completed in an expeditious manner. Particularly, we have taken into account the contingency which may occur, if the word shall in the context is held mandatory. In that case, even if a single days delay would stifle the prosecution intending to curb the act of terrorism. Certainly, the legislative intent behind incorporating the term shall is not to stifle the prosecution on such insignifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us allegations of commission of offence under UAP Act have been made and found prima-facie true by the NIA. 24. Long back, it has been held by the Hon'ble Supreme Court that the only principle which governs the criminal justice system is miscarriage of justice. This rule has its origin in the rules of principles of natural justice and that is why time and again the Hon'ble Supreme Court has laid stress on fair trial. Even on conclusion of the trial, the judgment rendered by a competent Court was not held illegal where a charge was not framed by the Court [refer, Begu v. King-Emperor ILR (1925) 6 Lah 226]. In this context, we may also refer to the provisions Under Sections 468 to 473 of the Code of Criminal Procedure which provide period of limitation for taking cognizance and exclusion as well as extension of period of limitation in certain cases. The scheme of the Code of Criminal Procedure thus indicates that it is not every irregularity which vitiates the trial and except in very exceptional kind of cases the Court would not step into and hold the judgment rendered illegal. The fundamental right of an Accused is of fair trial in which he has sufficient opportunity to def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of sanction. UA(P)A as it was originally enacted, in its Statements of Objects and Reasons, declared it to be in the interest of the sovereignty and integrity of India, intended to bring in reasonable restrictions to (i) freedom of speech and expression, (ii) right to assemble peaceably and without arms; and (iii) right to form associations or unions. The original enactment by Section 17 required a sanction from the Central Government or the authorised officer to initiate prosecution. ... 14. The Parliament, in 2008, while enacting Amending Act 35 of 2008 had consciously incorporated the provision requiring a recommendation from an Authority and retained the requirement of sanction from the appropriate Government, as provided in sub-section (1). It was by sub-section (2) that an Authority was contemplated, to make recommendations after reviewing the evidence gathered and a specific time was permitted to be prescribed by rules. The Central Government having brought out the Rules of 2008 specifying the time, within which the recommendation and sanction has to be made, the time is sacrosanct and according to us, mandatory. It cannot at all be held that the stipulation of time is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the allegations against the corrupt official Subramanian Swamy [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L S) 666]. Delays in prosecuting the corrupt breeds a culture of impunity and leads to systemic resignation to the existence of corruption in public life. Such inaction is fraught with the risk of making future generations getting accustomed to corruption as a way of life. ... ... 32. In the first place, non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public interest having a direct bearing on the rule of law [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L S) 666. Per A.K. Ganguly, J. : (SCC p. 102, paras 76-77) 76. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of the rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecutions and is adversely viewed in public mind that in the name of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has observed: The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the cannons of interpretation failed to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischief aimed at our, if the language permits, to be held to fall within its remedial influence Observations in the twelfth edition, in this context, are also educative: The strict construction of penal statutes seems to manifest itself in four ways : In the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction. 31.2. In Standard Chartered Bank v. Directorate of Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the objective of the statute. 31.5. In Priya Indoria v. State of Karnataka (2024) 4 SCC 749, the position of law was stated as under: 84. Maxwell in his treatise on Interpretation of Statutes (10 Edn.), p. 284 states that the tendency of modern decisions on the whole is to narrow materially the difference between strict and beneficial construction . It follows that criminal statutes such as the Code of Criminal Procedure are interpreted with rational regard to the aim and intention of the legislature. What has to be borne in the judicial mind is that the interpretation of all statutes should be favourable to personal liberty subject to fair and effective administration of criminal justice. (Emphasis supplied) 32. Rules flowing from statutory power, have the effect of a statute. Section 52 of the UAPA grants power to the Central Government to make Rules for the purpose of carrying out the provisions of the Act. Specifically, Section 52(2)(ee) deals with the present situation, i.e., enables the Government to prescribe the time for recommendation and grant of sanction Under Section 45. The 2008 Rules are unequivocal in both, using the word 'shall' as also providing a specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction - Article 261 at p. 516, is pertinent: The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.... 32.3. In State of U.P. v. Babu Ram Upadhya 1960 SCC OnLine SC 5, a Constitution Bench considered the interpretation of the word 'shall' as mandatory and observed as under: 29. The relevant rules of interpretation may be briefly stated thus : When a statute uses the word shall , prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase may be, is mandatory before summons are issued against the Accused living beyond the territorial jurisdiction of the Magistrate. 32.6. Crawford's Statutory Construction (1989 reprint) Cited in Union of India v. A.K. Pandey, (2009) 10 SCC 552, notes as follows in regard to 'mandatory' and 'directory' words: Ordinarily the words 'shall' and 'must' are mandatory, and the work 'may' is directory, although they are often used inter- changeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-consuming process, given the multiple variables involved. There have to be certain limitations within which administrative authorities of the Government can exercise their powers. Without such limitations, power will enter the realm of the unbridled, which needless to state is, antithetical to a democratic society. Timelines in such cases, serve as essential aspects of checks and balances and of course, are unquestionably important. If the view of the Bombay and Jharkhand High Courts is allowed to stand it would be tantamount to the Judicial Wing supplanting its view in place of the legislature which is impermissible in view of the doctrine of separation of powers. We find support for our view in the Constitution Bench decision in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500, wherein D.A. Desai, J., held as under: 18. It is a well-established cannon of construction that the court should read the section as it is and cannot rewrite it to suit its convenience; nor does any cannon of construction permit the court to read the section in such manner as to render it to some extent otiose. [See also: Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323; Institute of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjection, or control. A state of perfect irresponsibility. Political independence is the attribute of a nation or state which is entirely autonomous, and not subject to the government, control, or dictation of any exterior power. 36. Review, as a concept is to be understood for it is the coming together of these two aspects which will form our understanding of the term 'independent review'. 36.1 The Cambridge dictionary defines the word review as: to think or talk about something again, in order to make changes to it or to make a decision about it 36.2 The Merriam Webster dictionary defines the word review to mean as: ...2: to examine or study again especially : to reexamine judicially ... 4 a: to go over or examine critically or deliberately; b: to give a critical evaluation of 36.3 The Burton's Legal Thesaurus Third Edition; Page 473 lists the following words as being similar to 'review' - analyse; comment upon; contemplari; criticize; critique; investigate; mull over; notice; critically; reconsider; reexamine; scrutinize; study and weigh. 37. The import of the term independent review as can be understood from the above is a re-examination, scrutiny or crit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions of the House should welcome it. This is a biggest buffer against arbitrariness which many Members spoke about. Sir, these are the features in the Bill. In the statement extracted above, the idea, purpose and intent behind bringing in an independent authority to scrutinize the material gathered by the investigating agency prior to the government being able to issue or deny a sanction, has been clearly laid out. It was so done to have checks over the power of the executive in this regard. 40. What flows from the above is that independence of this authority is sine qua non, without which it would have lost its entire purpose. The question, now to be considered is as to how it may be determined that a particular process shone with independence or was the same compromised by the clouds of influence, which may compromise its character. 40.1. In C.S. Krishnamurthy v. State of Karnataka (2005) 4 SCC 81, the Court speaking in the context of a sanction order under PC Act held: 9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50. ...We place emphasis on the expression within 7 working days of the receipt of the evidence gathered by the investigating officer under the Code of Criminal Procedure . This evidence which Rule 3 of the Rules, 2008 contemplates is the final report i.e., filed by the investigating agency Under Section 173 of the Code of Criminal Procedure. How can one expect the authority under sub section (2) of Section 45 to make its report containing the recommendations without looking into the chargesheet thoroughly containing the evidence gathered by the investigating officer. On the contrary, Rule 3 of the Rules, 2008 makes it explicitly clear that the authority under sub section (2) of Section 45 of the UAPA is obliged in law to apply its mind thoroughly to the evidence gathered by the investigating officer and thereafter, prepare its report containing the recommendations to the Central Government or the State government for the grant of sanction. The grant of sanction is not an idle formality. The grant of sanction should reflect proper application of mind. (Emphasis in original) (Emphasis supplied) 40.4. In State of Punjab v. Mohd. Iqbal Bhatti (2009) 17 SCC 92, the position of law was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution. (Emphasis supplied) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged 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 19. Previous sanction necessary for prosecution.- (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required Under Sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining Under Sub-section (3) whether the absence of, or any error, omission or irregu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is a gross misuse of powers by the NIA and a violation of Sections 218-224 of Code of Criminal Procedure. 43. Section 218 features in Chapter XVII of the Code of Criminal Procedure titled 'The Charge' and more specifically Part B thereof, which is joinder of charges. In a sense, the Appellant has alleged violation of an entire part of the chapter, which submission on the face of it is difficult to accept. It requires no reiteration that a person when alleging the contravention of a section or portion of statute, has to substantiate the same by demonstrating which aspect of the section stood not complied with and how such non-compliance has prejudicially affected him. In the present case, however, we are confronted with a sweeping statement of contravention of provisions of the Code of Criminal Procedure with little to no explanation as to how that may be the case. 43.1. Section 218 provides, first, that there should be a separate charge for each distinct offence; and secondly, that there should be a separate trial for every such charge, except in the four cases mentioned in Sections 219, 220, 221 and 223. 43.2. Section 219 provides that the three charges of thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onding to Section 235(1) of the old Code]. The meaning of the expression in the course of the same transaction used in Section 223 is not materially different from that expression used in Section 223(1) [sic 235(1)]. It is so understood by this Court in State of A.P. v. Cheemalapati Ganeswara Rao [AIR 1963 SC 1850 : (1964) 3 SCR 297]. The following observation in the said judgment is contextually quotable: The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently, they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression 'same transaction' alone had been used in Section 235(1) it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression 'same transaction' occurring in clauses (a), (c) and (d) of Section 239 as well as that occurring in Section 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. 12. For several offences to be part of the same transaction, the test which has to be applied is whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a joint/separate trial will prejudice the defence of the Accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay. 51.3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The appellate court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of Accused or the prosecutrix. 51.4. Since the provisions which engraft an exception use the phrase may with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice. 51.5. A conviction or acquittal of the Accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be. The case of Appellant, as is evident from the record, falls under the latter category, i.e., multiple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this Sub-section shall render any such person (including promoters) liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised reasonable care to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any promoter, director, manager, secretary or other officer of the company, such promoter, director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes of this section,- (a) company means any body corporate and includes a firm or other association of individuals; and (b) director , in relation to a firm, means a partner in the firm. 48. For Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes of this section, - (a) company means any body corporate and includes a firm or other association of individuals; and (b) director , in relation to a firm, means a partner in the firm. 49.1. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005) 8 SCC 89, a Bench of three Judges held that only a person who is in charge of the affairs of the company, i.e., a director, manager or secretary and alongside that was connected to the criminal act being committed, would be liable under this section. Relevant portion thereof reads thus: 10. ...What is required is that the persons who are sought to be made criminally liable Under Section 141 should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the position of a managing director or a joint managing director in a company may be different. This Court further held that these persons, as the designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. To escape liability, they will have to prove that when the offence was committed, they had no knowledge of the offence or that they exercised all due diligence to prevent the commission of the offence. [See also: N. Rangachari v. BSNL (2007) 5 SCC 108; Central Bank of India v. Asian Global Ltd. (2010) 11 SCC 203; Gunmala Sales (P) Ltd. v. Anu Mehta (2015) 1 SCC 103; and Rajesh Viren Shah v. Redington India Ltd. (2024) 4 SCC 305] 50. Turning our attention to the facts of the present case once more, we find that in opposing the stand that he is a director, the Appellant submits that he, in fact, is an uneducated person who is a munshi and whose identity has been stolen by A-7 A-14. That being the case, this Court cannot, at this stage, decide whether Section 22A applies to the Appellant or not. This is once again a matter for evidence. CONCLUSION 51. Consequent to the discussion made herein above, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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