UAPA Sanction Should Be Challenged By Accused Ordinarily At Earliest Opportunity : Supreme Court

The Supreme Court has held that a sanction for prosecution under the Unlawful Activities Prevention Act (UAPA) can be challenged on grounds such as the authority has not applied its mind or that the materials were not sufficient. However, such challenge by the accused must ideally be raised at the earliest opportunity.

The Court also noted that the UAPA does not have any provision like the CrPC or the Prevention of Corruption Act to save an invalid sanction/

"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 sanction, is sufficient," held the Court today in the context of Section 45(2) of the Unlawful Activities (Prevention) Act, 1967

A bench of Justices C.T. Ravikumar and Sanjay Karol made these pertinent observations in the context of the procedure followed under Section 45 of the UAPA read with Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation And Sanction of Prosecution) Rules, 2008 for recommending and granting sanctions along with the mandatory statutory timeline.

Under Section 45, the recommending authority grants sanctions after taking an independent review of the evidence. The recommending authority is appointed by the Central Government/State Govt. Once the recommending authority sends the recommendation prescribing sanctions, the Central Government/State Govt shall decide on the grant of sanctions perusing the 'investigation report' of the recommending authority. 

The investigation report is prepared by two authorities which the Court in the present case considered as an inbuilt mechanism to keep check of the fact that due application of mind has been made while recommending sanctions.

Both authorities are given 7 working days to recommend and grant sanctions respectively. However, once the sanctions are held to be vitiated, they cannot be saved by any provision under UAPA. 

Therefore, in this case, one of the issues raised was when should a sanction be challenged. The Court observed that although sanctions must be challenged at the earliest possible opportunity, they can also be challenged at a later stage as well.

Referring to certain judgments, it held: "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."

The Court referred to the provisions of other legislations such as the Code of Criminal Procedure and held: "Other legislations such as the CrPC provide mechanisms for the sanction and subsequent actions to be saved from being invalidated due to any irregularity etc. Section 465 CrPC provides for the possibility that a sanction granted under Section 197 CrPC 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."

Therefore, under UAPA, the Court observed: "In order to challenge the grant of sanction as invalid, the grounds that can be urged are that (1) all the relevant material was not placed before the authority; (2) the authority has not applied its mind to the said material; and (3) insufficiency of material. This list is only illustrative and not exhaustive."

It added: "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. That, needless to say, can only be done before the Trial Court. In that view of the matter, we have no hesitation in holding that while we recognise the treasured right of an accused to avail all remedies available to him 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."

The Court in this case refrained from going into the validity of the sanctions at the bar that the trial is underway and 113 witnesses out of 125 were already examined.

Case Details: Fulleshwar Gope v. UOI & Ors., SLP (Crl) No. 4866 of 2023