Case Note & Summary
The Supreme Court dismissed the appeal filed by Fuleshwar Gope challenging the judgment of the Jharkhand High Court which refused to quash the sanction order, cognizance order, and charges framed against him under the Unlawful Activities (Prevention) Act, 1967 (UAPA) and other offences. The appellant was an associate of the People's Liberation Front of India (PLFI), a banned terrorist organization. He was alleged to have formed a company, M/s Shiv Shakti Samridhi Infra Pvt. Ltd., along with other accused, and used its bank account to collect funds for PLFI activities. The FIR was initially registered by the state police in 2016, and a chargesheet was filed in 2017. Subsequently, the Ministry of Home Affairs transferred the investigation to the National Investigation Agency (NIA) in 2018. The NIA filed a supplementary chargesheet in 2019, initially naming the appellant as a witness. However, he was later arrested in 2020, and a second supplementary chargesheet was filed against him as accused No.17. The sanction for prosecution was granted by the Central Government on 22 July 2020, and cognizance was taken on 25 July 2020. The appellant challenged these orders before the High Court, which dismissed his writ petition. The Supreme Court considered three main issues: the validity of the NIA's takeover of investigation, the legality of the sanction order, and the correctness of the cognizance order. On the first issue, the Court held that the Central Government has suo motu power under Section 6 of the NIA Act to transfer investigation to the NIA even after the state police has completed investigation. On the second issue, the Court found that the sanction order was valid as it was preceded by an independent review by a committee of officers, and the timeline for such review is directory, not mandatory. On the third issue, the Court held that the cognizance order was based on prima facie material and did not suffer from non-application of mind. The Court also rejected the appellant's argument that he lacked mens rea, noting that for certain UAPA offences, mens rea is not required. The appeal was dismissed, and the proceedings were allowed to continue.
Headnote
A) Criminal Law - Sanction for Prosecution - Section 45 UAPA - Independent Review - The sanction order under Section 45(2) of the Unlawful Activities (Prevention) Act, 1967 must be preceded by an independent review by a committee of officers, but the timeline for such review is directory, not mandatory. The court held that the sanction order in this case was valid as it was based on proper application of mind and independent review. (Paras 8-12) B) Criminal Procedure - Cognizance - Section 190 CrPC - Prima Facie Case - The order taking cognizance of an offence is based on the existence of a prima facie case and cannot be quashed at the pre-trial stage unless it is patently illegal or without jurisdiction. The court held that the Special Judge had applied his mind to the material on record, and the cognizance order was valid. (Paras 13-15) C) Criminal Law - Investigation - NIA Act, 2008 - Section 6 - Transfer of Investigation - The Central Government has suo motu power under Section 6 of the National Investigation Agency Act, 2008 to direct the NIA to investigate a scheduled offence even after the state police has completed investigation and filed a chargesheet. The court held that the NIA's takeover was valid and the supplementary chargesheet was permissible. (Paras 5-7) D) Criminal Law - Mens Rea - UAPA - Section 22A - The proviso to Section 22A of the Unlawful Activities (Prevention) Act, 1967 exempts from prosecution only those persons who are not in charge of and responsible for the affairs of the company. The court noted that the appellant, being a director of the company, could not claim the benefit of the proviso. (Para 16)
Issue of Consideration
Whether the sanction order dated 22.07.2020 under Section 45(2) UAPA is invalid for non-compliance with statutory timelines and lack of independent review; whether the cognizance order dated 25.07.2020 suffers from non-application of mind; whether the NIA's takeover of investigation after police chargesheet is valid
Final Decision
The Supreme Court dismissed the appeal, upholding the High Court's judgment. The Court held that the NIA's takeover of investigation was valid, the sanction order was valid as it was preceded by independent review, and the cognizance order did not suffer from non-application of mind. The proceedings against the appellant were allowed to continue.
Law Points
- Sanction under Section 45 UAPA requires independent review
- but timeline not mandatory
- cognizance order based on prima facie material not to be quashed at pre-trial stage
- NIA can take over investigation even after police chargesheet
- mens rea not required for certain UAPA offences
- proviso to Section 22A UAPA exempts only those not in charge of company affairs
