S.45 UAPA | Can Order Of Central Govt Granting Sanction For Prosecution Be Assailed Per Se? Delhi High Court To Consider In Sachin Waze's Plea

The Delhi High Court is set to consider the question as to whether an order passed the Central Government under Section 45 of the Unlawful Activities Prevention Act (UAPA), granting sanction to prosecute, can be assailed per se.

The question has arisen in the plea filed by dismissed Mumbai police officer Sachin Waze, seeking to quash the sanction granted to prosecute him in connection with Antilia bomb scare case.

The case pertains to the recovery of 20 gelatine sticks (explosives) and a threat note in a Mahindra Scorpio vehicle near industrialist Mukesh Ambani's house in Mumbai on February 25 last year and the subsequent murder of businessman Mansukh Hiran.

The present plea therefore seeks striking down of sec. 15(1) of the UAPA which relates to the terrorist act, by arguing that the provision is ultra vires of Article 14 and 21. It also seeks quashing of the sanction order of September 2, 2021 passed by the Central Government.

A bench comprising of Justice Siddharth Mridul and Justice Anoop Kumar Mendiratta noted that the threshold objection that arises for Court's consideration in the matter is whether it would have territorial jurisdiction over the subject matter of the proceedings.

Accordingly, the Court said that it would need assistance on the following two issues:

Firstly, whether an order granting sanction rendered by the Central Government under sec. 45 of UAPA can be assailed per se, and secondly, if such order can be assailed, where would such a challenge to the order granting the sanction lie?

The Court heard Senior Advocate Puneet Bali appearing on behalf of Waze as well as ASG Aman Lekhi appearing for the Centre, in part on the said preliminary objection.

During the course of hearing today, Bali argued that the Court will have territorial jurisdiction to hear the matter as the sanction in question was granted by the Ministry of Home Affairs in Delhi, thereby adding that even the Review Authority was also constituted in the city.

"I have not challenged the Court's authority to take sanction. I have challenged the sanction order given to the Central Government by the NIA in Delhi. NIA considering making a report to the review Authority in Delhi. Review authority constituted in Delhi, considers it in Delhi, recommendation by the Central Government after the Committee's report in Delhi. What more would your lordships want for the jurisdiction under Article 226(1)?" Bali argued.

On the other hand, ASG Aman Lekhi opposed the said submission by arguing that the Court has no territorial jurisdiction to hear the matter, stating that the alleged events occurred in Mumbai.

He argued that a very important facet had not been mentioned in the petition which was that pursuant to the order of sanction, cognizance was taken in Mumbai.

He argued "Cognizance has been taken pursuant to a sanction order and the order of sanction itself addresses it to a competent court."

He added "Because cognizance has been taken and the impact of your lordships order will be felt on the cognizance taken by the Court in Bombay and under the ordinary law, challenge to cognizance would be either inherent or revisional jurisdiction of Bombay Courts, part of the cause of action in the facts of this case on the basis of the pleadings of my learned friend which challenges the matter on merits, arises in Bombay."

The Court has now posted the matter for further hearing on April 1, while asking ASG Lekhi to assist the Court on the preliminary issues.

Background

Waze was arrested in the case on March 13. His pleas for default bail have repeatedly been rejected.

Waze used extortion money he collected from bar and orchestra owners to execute the terror threat to businessman Mukesh Ambani's family and eliminate Mansukh Hiran, a "weak link" in the conspiracy, the NIA alleged in its charge sheet earlier this month.

The agency claimed that the motive behind Waze's alleged crime was to re-establish himself as a "super cop" to regain lost glory following his reinstatement in the Mumbai Police force in 2020, after 16 years.

The NIA has accused Waze and 9 others under sections 302(murder), 120B (conspiracy), 201 (destruction of evidence), 364 (kidnapping), 403 (dishonest misappropriation of property) of the IPC and sections 16(punishment for a terrorist Act), 18(punishment for conspiracy) & 20(punishment for being a member of a terrorist gang) of UA (P) Act.

Case Title: Sachin Hindurao Waze v. UoI & Ors., WP (C ) 88/2022