Kerala government contended that the time stipulated was only directory and not mandatory.
The Kerala High Court on Thursday held that the time limit prescribed under the Unlawful Activities (Prevention) Act (UAPA) for sanction is "mandatory and sacrosanct" while quashing three cases -- of sedition and for being part of a banned organisation -- against a member of the CPI (Maoist) as the sanction was delayed.
The high court said the sanction for prosecution under the UAPA was given six months after receiving a recommendation for the same and it was also "bereft of any application of mind".
A bench of Justices K Vinod Chandran and C Jayachandran also said that there was no application of mind even with regard to the sanction granted for prosecution of the accused for the offence of sedition under the Indian Penal Code (IPC).
The order by the high court came on a criminal revision petition moved by the accused -- Roopesh -- challenging a Special Court's order rejecting his pleas for discharge on the ground that the sanction was delayed.
He had contended that after the recommendation for prosecution was made, sanction for the same had to be given within seven days.
The high court said, "We find the sanction order of the Unlawful Activities (Prevention) Act (UAPA) to be not brought out in time, as statutorily mandated and bereft of any application of mind; both vitiating the cognizance taken by the Special Court.
"Under section 196(1) of the Criminal Procedure Code again there is no application of mind in the sanction as evidenced from the orders impugned and hence, the cognizance taken of the offence under section 124-A (sedition) of the IPC also has to fail." "The cognizance taken by the Sessions Court under the IPC and UA(P)A are set aside and the orders passed, impugned in the Criminal Revision Petitions are set aside," the bench added.
The accused had contended that if the sanction was not given in time under the UAPA, then the Special Court cannot take cognizance of the offences under the Act.
The state government had contended that the time stipulated was only directory and not mandatory.
"Time is of no essence and the delay causes no prejudice to the accused, as long as the sanction is obtained prior to the cognizance taken," it had contended.
Disagreeing with the state's contention, the bench said, "The central government having brought out the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 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 directory, nor can it be waived as a mere irregularity.." In the instant case, the high court said the sanction under the UAPA was granted after six months from the date of receipt of recommendation of the authority and was, therefore, not valid.
The high court further said that the Parliament consciously in the year 2008 brought in a provision where the requirement was not only a sanction form the appropriate government but a prior recommendation from an Authority constituted under the Act, which had to be perused by the appropriate Government before sanctioning a prosecution.
The bench said that while the Authority constituted under the Act has to make an independent review of the evidence gathered in the course of investigation and make a recommendation within the stipulated time, the same does not absolve the government from applying its mind.
"The government, it is to be emphasized, has no obligation to act in accordance with the recommendation of the Authority. The sanction is of the government and not the Authority and the recommendation of the Authority only aids or assists the government in arriving at the satisfaction," it said.
The high court said that in the present case no such application of mind was "discernible".