UAPA - Investigating Agency Not Place Of Occurrence Matters To Determine Sanctioning Authority Under Section 45: Kerala High Court

The place of occurrence will not matter for determining the sanctioning authority under Section 45 of the Unlawful Activities(Prevention) Act(UAPA), held the Kerala High Court while dismissing the appeals of senior CPI(M) leader P Jayarajan and other accused in the Kathiroor Manoj murder case.

A division bench of Chief Justices S Manikumar and Justice Shaji P Chaly held that what matters for determining the sanctioning authority is the question who controls the investigating agency.

The appellants had argued that since the crime took place in Kerala, the sanction of State Government was necessary for the Special Court to take cognizance of the UAPA offences.

Rejecting this argument, the division bench held :

"In our considered view, a reading of the above provisions together would make it clear that it is not the place of occurrence of the crime that matters, but what matters is the agency conducting the investigation under the control of the Central Government and admittedly, in the instant case the investigation is conducted by an agency under the control of the Central Government and the offences under Sections 15 and 16 of the UAPA is incorporated in the final report, and therefore, the sanction issued by the Central Government is a validly constituted one. It is also clear that merely because the central agency conducts an investigation into any offence within the State, it is never under the control of the state government especially due to the fact there is no enabling provision under any one the acts discussed above to do so. Which thus means the central agency conducting the investigation is always under the control of the Central Government and that power under any circumstances is not conferred on the State Government even while conducting an investigation within a state"(Paragraph 36).

The division bench was hearing an appeal against a single bench verdict passed on March 15, 2018, which refused to interfere with the order taking cognizance.

The appellants - all CPI(M) members- were challenging the order of Sessions Court, Thalassery, taking cognizance of offences under Sections 16-A read with 15(1)(a)(i) and 19 of the UAPA in respect of the murder of an RSS office bearer named Elamthottathil Manoj(Kathrioor Manoj) in 2014. The UAPA offences invoked against the appellants related to 'terrorist acts'.

Initially, the case was investigated by the State Police. Since the case involved the offences under the UAPA, the Central Bureau of Investigation, with the consent of the State Government, (CBI), took up the investigation. Subsequently, Central Government accorded sanction for prosecution to these five accused.

The chief contention of the accused was that it is the State Government who is empowered to grant sanction for prosecution under Section 45 of the UAPA Act as the offence is committed within the territory of Kerala. Senior Advocates appearing for the appellants, B Raman Pillai and K Gopalakrishna Kurup, placed reliance upon the connotation 'as the case may be' in Section 45(1)(ii), to contend that since the alleged incident took place within the limits of the StateGovernment, sanction has to be secured from the State Government andnot from the Central Government.

The court refuted this contention squarely on the ground that for granting sanction to take cognizance under the UAPA Act, it is not the place of occurrence that matters, but investigating agency is what matters.

The judgment authored by Justice SP Chaly stated :

"According to us, a reading of Section 45 itself makes it clear that it is not the area in question that is to be taken into account, in the matter of granting sanction. Because, under sub-section (i) of Section45(1) though not applicable in the appeals at hand, it is specified that no court shall take cognizance of an offence under Chapter III, without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf. Chapter III deals with offences and penalties for being a member of an unlawful association and wherever it takes place within the territory of India, a sanction from the Central Government or any officer appointed in that behalf is to be secured irrespective of the investigating agency.

Therefore, according to us, the provisions of Section 45 makes it clear that it is not the place of occurrence that matters, but the investigating agency is what matters. That means, as per Section 45(1)(ii) a clear segregation is made by which both, the State and the Central Government agencies are vested with the powers to conduct investigation and submit a final report before the competent court and if an investigation was conducted by a State agency in the instant case the State Government had the power to grant sanction".

The other contention put forward was that the sanction was bad in law as it was not given within the time period provided in Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008. The appellants referred to the 2019 judgment of the Kerala High Court in the case Roopesh v State of Kerala in support of this argument. It was held in that case that the failure to comply with the time limit prescribed for sanction will vitiate the sanction. However, the division bench chose not to rely on this decision saying that the Supreme Court has stayed it as per order passed on October 16, 2020, in an appeal filed by the State Government.

 The division bench refrained from examining the merits of the sanction order of the Central Government observing that it is a matter to be decided in the trial.

"The validity of the sanction order has to be looked into by the Special Court trying the case in question and definitely, the appellants are vested with sufficient liberty toquestion the veracity and legality of the sanction order issued by the Government of India", the division bench observed.

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