Fuleshwar Gope vs. Union of India & Ors.

 

Fuleshwar Gope vs. 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.

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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  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.

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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]