Holding

The Supreme Court held that the validity of a UAPA sanction must be challenged at the earliest opportunity before the trial court, that the mandatory timelines and independent review under Rules 3 and 4 were complied with, and that questions of misjoinder and Section 22A exemption are factual issues for the trial court to determine.

Summary

The appellant, Fuleshwar Gope, was alleged to be a director of a company used to collect funds for the People’s Liberation Front of India and was charged under the Unlawful Activities (Prevention) Act (UAPA). He challenged the sanction order, arguing violations of statutory timelines, lack of independent review, misjoinder of charges, and claimed exemption under Section 22A of the UAPA. The Supreme Court held that a sanction order must be challenged at the earliest stage before the trial court, and that the timelines in Rules 3 and 4 of the 2008 Rules are mandatory and were complied with, with proper independent review. The Court further held that issues of misjoinder of charges and the applicability of Section 22A are factual matters to be decided by the trial court. Consequently, the appeal was dismissed. The judgment emphasizes strict construction of penal statutes and the need for timely, independent sanction procedures under the UAPA.

Issues considered

Whether the validity of a UAPA sanction order can be challenged at any stage of the proceedings
Whether violation of Section 45(2) of the UAPA and Rules 3 and 4 of the 2008 Rules (statutory timelines and independent review) vitiates the prosecution
Whether the appellant's alleged transactions are independent of those of A‑6, raising a question of misjoinder of charges under Sections 218‑224 of the CrPC
Whether the statutory exemption under Section 22A of the UAPA applies to the appellant

Legislation cited

Code of Criminal Procedure, 1973s. 218, s. 219, s. 220, s. 221, s. 222, s. 223, s. 224
Criminal Law Amendment Act, 1908s. 17(i), s. 17(ii)
National Investigation Agency Act, 2008
Unlawful Activities (Prevention) Act, 1967s. 120B, s. 22A, s. 45(2)
Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008s. Rule 3, s. Rule 4

Subjects

Validity of Sanction OrderViolation of statutory timelinesRequirement of independent reviewApplication of mindStatutory exemption u/s.22 A of the UAPATime limit for making recommendation by AuthorityTime limit for sanction of prosecutionTerrorist and chief of People’s Liberation Front of India-PLFIActivities of PLFIUnlawful associationDemonetized currencyQuash suo motu letterInvestigationSanction letterCognizance orderPenal legislationStrict constructionGrant of sanctionNon-application of mindViolation of CrPCTimelines, whether directory or mandatoryProcedure for sanction under the UAPAStrict adherence to timeline

Judgment

[2024] 10 S.C.R. 315 : 2024 INSC 718

Fuleshwar Gope
v.
Union of India & Ors.
(Criminal Appeal No. 3923 of 2024)
23 September 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]

Issue for Consideration
Issue arose as to whether the validity of the Sanction Order can be
challenged at any stage; whether violation of s.45(2) of the UAPA r/w
rr.3 and 4 of the 2008 Rules, if any, vitiates the proceedings, whether
violation of statutory timelines and the requirement of independent
review which includes application of mind, are necessary aspects
of procedure; whether the appellant’s involvement were actually
independent of the ones in which A-6 and other members were
arrayed as accused; and whether the statutory exemption u/s.22
A of the UAPA applies to the appellant who claims to be unaware
of the affairs of the company.

Headnotes†
Unlawful Activities (Prevention) Act, 1967 – s.45(2) –
Cognizance of offences – Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 –
rr.3 and 4 – Time limit for making a recommendation by the
Authority – Time limit for sanction of prosecution – Appellant’s
case that he was made an accused and a member of the
larger conspiracy – Allegations against him that on directions
of A 6, a terrorist and chief of People’s Liberation Front of
India-PLFI, the appellant formed a company, which used
to directly/indirectly collect funds for the use of activities
of PLFI; and that the appellant criminally conspired and
formed an unlawful association with members of PLFI-A 7
and 14 – FIR against six persons alleging that Rs.25.83 lakhs
of demonetized currency brought to the concerned Bank by
A-6 – Appellant sought to quash suo motu letter in respect
of the investigation; sanction letter granting sanction qua
prosecution of the appellant as accused; and cognizance
order under IPC and UAPA – Division Bench refused to quash
the same – Challenge to:
* Author
316 [2024] 10 S.C.R.

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Held: No infirmity in the order granting sanction against the
appellant – It is not incumbent upon the authority to record
detailed reasons to support its conclusion and, as such, the orders
challenged, cannot be faulted with on that ground – Since trial
is underway and numerous witnesses already stand examined,
the challenge to the validity of the sanction qua the appellant
left it to be raised before the trial judge – Whether or not both
A-6 and the appellant are part of the same, continuing, ongoing
transactions, is to be decided on the basis of evidence adduced
at trial, and not at this stage, by this Court, thus, left to the
appellants to raise this issue before the trial judge – Furthermore,
as regards, application of exemption u/s.22A, this is a matter for the
trial court to consider and not for this Court to decide at this
stage, keeping in view that the trial is underway and proceeded
substantially. [Paras 18, 41, 46, 50]
Unlawful Activities (Prevention) Act, 1967 – s.45(2) – Cognizance
of offences – Validity of Sanction Order – Challenged to, at
what stage:
Held: Validity of sanction should be challenged at the earliest
instance available, before the Trial Court – If such a challenge is
raised at an appellate stage it would be for the person raising the
challenge to justify the reasons for bringing the same at a belated
stage – Such reasons would have to be considered independently
so as to ensure that there is no misuse of the right of challenge
with the aim to stall or delay proceedings – On facts, keeping in
view the submission made that the trial is underway and numerous
witnesses (113 out of 125) already stand examined, no finding given
on the challenge to the validity of the sanction qua the appellant
and leave it to be raised before the trial judge, who shall, if such
a question is raised decide, it promptly. [Paras 18, 51.1]
Unlawful Activities (Prevention) Act, 1967 – s.45(2) –
Cognizance of offences – Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 –
rr.3 and 4 – Time limit for making a recommendation by the
Authority – Time limit for sanction of prosecution – Timelines
in accordance with s.45(2) r/w rr.3 & 4 and the requirement of
independent review, if necessary aspects of procedure, and
non-adherence of which would vitiate proceedings under the
UAPA:
[2024] 10 S.C.R. 317

Fuleshwar Gope v. Union of India & Ors.

Held: Timelines mentioned in rr.3 and 4 are couched in mandatory
language and, thus, have to be strictly followed – This is keeping in
view that UAPA being a penal legislation, strict construction must be
accorded to it – Timelines imposed by way of statutory Rules are
a way to keep a check on executive power which is a necessary
position to protect the rights of accused persons – Independent
review by both the authority recommending sanction and the
authority granting sanction, are necessary aspects of compliance
with s.45 of the UAPA – As regards appellant’s case that the
timelines were not followed, the first sanction was granted more than
a year after the recommendation was moved; and that there was
no independent review on the part of both recommending authority
and central government, as the sanction was merely granted within
a day each, the gap between the first action against A-6 and the
arrest of the appellant is a result of continuing investigation, as
the appellant was made an accused in the second supplementary
chargesheet, arising out of the same FIR; and since the investigation
continued, the gap cannot be termed fatal so as to render the
arrest of the appellant as unlawful or illegal – Grant of sanction
is within the stipulated time – Furthermore, it cannot be said that
there was non application of mind and lack of independent review.
[Paras 20, 28.4, 41, 51.2]
Code of Criminal Procedure, 1973 – ss.218-222 – Misjoinder
of charges – Violation of CrPC – Plea of the appellant that the
transactions in connection with which he has been brought
to the book were actually independent of the ones in which
A-6 and other members were arrayed as accused; and that
that there has been gross misuse of powers by the NIA and
a violation ss.218-224 CrPC:
Held: ss.218-222 not violated – Appellant falls under the latter
category-multiple persons in the same trial (appellant is A-17 out
of a total of 20 accused persons) – Joint or separate trial is a
decision to be taken by the trial judge at the beginning of the trial
considering the possibility of prejudice; and causing judicial delay,
if any – Language of s.223 is directory in nature, signified by the
use of word ‘may’ – Joint trial, if held, after having considered the
two factors given, cannot be said to be ipso facto prejudicial to
the parties – It is alleged that A-6 who is the Chief of PLFI, extorts
money from various persons and that the company A-20 of which
the appellant is a director, is used to legitimise the proceeds of
318 [2024] 10 S.C.R.

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such unlawful actions – However, appellant’s case that there is no
connection between the charges levied on A-6 and the transactions
because of which he has been made an accused, whereas the
prosecution submits that both A-6 and A-17 are part of the same,
continuing, ongoing transactions – Whether or not actually the case
is a question to be decided on the basis of evidence adduced at
trial, and not at this stage, by this Court – Thus, it is left to the
appellants to raise this issue before the trial judge, who shall, if
such a question is raised, decide it promptly at the appropriate
stage. [Paras 44.3, 45, 46, 52.1]
Unlawful Activities (Prevention) Act, 1967 – s.22A – Offences
by companies – Statutory exemption u/s.22 A – Applicability
to the appellant who claims to be unaware of the affairs of
the company:
Held: Whether or not the exemption u/s.22A applies is a matter to
be established by the way of evidence for the person claiming such
exemption has to demonstrate that either he was not in charge
of the affairs of the company which has allegedly committed the
offence, or that he had made reasonable efforts to prevent the
commission of the offence – This is a matter for the trial court to
consider and not for this Court to decide at this stage, keeping
in view that the trial is underway and proceeded substantially.
[Paras 50, 52.2]
Unlawful Activities (Prevention) Act, 1967 – s.22A – Offences
by companies – Applicability of s.22A:
Held: For application of s.22A, offence has to committed by a
company; all persons who at the time of the offence were in control
of, or responsible for, the company’s affairs shall be deemed
guilty; such person would be saved from guilt as under if they can
demonstrate that such act was not in their knowledge; they had
taken reasonable care to prevent such offence from taking place –
s.22A further provides that if it can be proved that the offence
committed by the company was with consent; in connivance of;
and attributable to neglect on the part of any promoter, director,
manager, secretary or any other officer of the company, then they
shall be held guilty. [Para 48]
Unlawful Activities (Prevention) Act, 1967 – s.45(2) –
Cognizance of offences – Unlawful Activities (Prevention)
(Recommendation & Sanction of Prosecution) Rules, 2008 –
[2024] 10 S.C.R. 319

Fuleshwar Gope v. Union of India & Ors.

rr.3 and 4 – Time limit for making a recommendation by the
Authority – Time limit for sanction of prosecution – Timelines,
whether directory or mandatory:
Held: Timelines, generally speaking, as part of statutory framework
are extremely essential to an effective, efficient and focused
machinery of criminal investigation, prosecution and trial – All
stakeholders to the smooth functioning of these procedures of
law must do their part in realising such timelines – They are
the essential aspects of right to speedy trial, which is enshrined
u/Art.21 of the Constitution of India. [Para 22]
‘Application of mind’ – Concept of:
Held: Application of mind must form part of any judicial, quasi-
judicial or administrative order – To demonstrate the same,
consideration of material placed before such authority must be
reflected – It being a cerebral exercise, it is not within reason
to set out any formula to explain what application of mind may
actually mean or look like – It is to be ascertained in the facts
and circumstances of each case – In the context of penal laws,
authorities tasked with evaluating material prior to granting of
sanction for prosecution, or the act of granting sanction itself
must apply their mind to each and every facet of the material
placed before it to arrive at the conclusion particularly so because
the effect of the task at hand is immense – Grant/non-grant of
sanction is what sets in motion the machinery of strict laws such
as UAPA or TADA. [Paras 25, 26]
Unlawful Activities (Prevention) Act, 1967 – s.45(2) –
Cognizance of offences – Procedure for sanction provided
under the UAPA:
Held: Court is enjoined from taking cognizance without previous
sanction either by the Central Government or the State Government,
as applicable, and such sanction shall only be given after the
report of the authority appointed by the Central Government or the
State Government, as the case may be, has been considered –
This authority is to make an independent review of the evidence
gathered and make a recommendation to the government within a
time bound manner – If any Court takes cognizance without prior
sanction of the Government, Centre or State, the same shall be
in contravention of the Act and thus, bad in law – This sanction is
not a function of the Government alone and it can only be granted
320 [2024] 10 S.C.R.

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after an independent body, albeit appointed by the Government,
makes an independent review of the evidence. [Paras 28, 28.1]
Unlawful Activities (Prevention) (Recommendation & Sanction
of Prosecution) Rules, 2008 – rr.3 and 4 – Time limit for
making a recommendation by the Authority – Time limit for
sanction of prosecution – Construction of:
Held: Penal statutes are statutes to be interpreted strictly – Rules
flowing from statutory power, have the effect of a statute – s.52 of
the UAPA grants power to the Central Government to make Rules
for the purpose of carrying out the provisions of the Act – s.52(2)(ee)
enables the Government to prescribe the time for recommendation
and grant of sanction u/s.45 – Rules are unequivocal in both, using
the word ‘shall’ as also providing a specfic time period for both
activities, i.e., making recommendation and granting sanction – In
matters of strict construction, when a timeline is provided, along
with the use of the word ‘shall’ and particularly when the same is
in the context of a law such as the UAPA, it cannot be considered
a mere technicality or formality – It demonstrates clear intention on
the part of the Legislature – Compulsion has been imposed, and
for compliance with that compulsion, a timeline has been provided –
While the legislation is aimed at curbing unlawful activities and
practices detrimental to national security and accordingly, provides
the authorities of the Government ample power to undertake and
complete all procedures and processes permissible under law to
that end, at the same time the interest of accused persons must
also be safeguarded and protected – Time granted is only for
consideration of the material collected by way of an independent
review and then making a recommendation whereafter the
sanctioning authority may then consider the materials as well as
recommendation to finally, grant or deny the sanction – It is not for
the purpose of the investigation itself, which understandably can be
a time-consuming process, given the multiple variables involved –
Timelines in such cases, serve as essential aspects of checks and
balances and of course, are unquestionably important – Legislative
intent is clear – Rules made by virtue of statutory powers prescribe
both a mandate and a time limit – Same has to be followed – Strict
adherence to the timeline mentioned in rr. 3 and 4 of the 2008,
Rules to apply prospectively. [Paras 31, 32, 33]
Unlawful Activities (Prevention) Act, 1967 – s.45(2) –
Cognizance of offences – Independent review – Meaning –
[2024] 10 S.C.R. 321

Fuleshwar Gope v. Union of India & Ors.

Plea that since both the recommending and the granting
authorities took merely a day each in performing their
respective functions, the requirement of an independent review
which is to be undertaken by both authorities has been left
unfulfilled thereby vitiating the sanction in question:
Held: Independent review would mean a contemplation or study
of the material gathered by the investigating officer to conclude
as to whether or not a sanction to proceed under the provisions
of the UAPA ought to be granted – Similarly, at the next stage,
the sanctioning authority is to mull over and critically notice
both the materials gathered as also the conclusion drawn by
the recommending authority, in its act of granting sanction –
Independence of this authority is sine qua non, without which it
would have lost its entire purpose – Plea of the appellant that short
amount of time taken in recommending and granting sanction,
against him which is a sign of non-application of mind and lack of
independent review, cannot be accepted – There is no question,
as there rightly cannot be, on the competence of either of the
authorities – Thus, solely on the ground that the time taken was
comparatively short or even that other orders were similarly worded
cannot call the credibility of the sanction into question – Thus,
independent review as well as application of mind are questions to
be determined by way of evidence and as such should be raised
at the stage of trial, so as to ensure that there is no undue delay
in the proceedings reaching their logical and lawful conclusion on
these grounds – If it is raised belatedly, however, the Court seized of
the matter, must consider the reasons for the delay prior to delving
into the merits of such objections – Belated challenges on these
grounds cannot be allowed to act as roadblocks in trial or cannot
be used as weapons in shirking away from convictions arising
out of otherwise validly conducted prosecutions and trials – Order
passed by an administrative authority is not to be tested by way
of judicial review on the same anvil as a judicial or quasi-judicial
order – While it is imperative for the latter to record reasons for
arriving at a particular decision, for the former it is sufficient to
show that the authority passing such order applied its mind to
the relevant facts and materials – Thus, no infirmity in the order
granting sanction against the appellant – It is not incumbent upon
such authority to record detailed reasons to support its conclusion
and, as such, the orders challenged, cannot be faulted with on
that ground. [Paras 37, 40, 41]
322 [2024] 10 S.C.R.

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Words and phrases – Word independent – Meaning of:
Held: Act, or evaluation is made in a way which is lone standing
or which does not rely on any other factor, such as previous
consideration or evaluation by another authority, to arrive at its
conclusion – Independence, which is the state of being independent
would also be instructive in the understanding – Review, as a
concept is to be understood for it is the coming together of these
two aspects which would form the understanding of the term
‘independent review’ – Import of the term independent review as
can be understood, is a re-examination, scrutiny or critique of
something which is not dependent or subject to control by any
other factor or authority. [Paras 35-37]

Case Law Cited
A.R. Antulay v. Ramdas Sriniwas Nayak [1984] 2 SCR 914 : (1984)
2 SCC 500 – followed.
State of Karnataka v. S. Subbegowda [2023] 11 SCR 19 : 2023
SCC OnLine SC 911; Nasib Singh v. State of Punjab [2021] 13
SCR 566 : (2022) 2 SCC 89; State of U.P. v. Paras Nath Singh
[2009] 8 SCR 85 : (2009) 6 SCC 372; State (NCT of Delhi) v. Navjot
Sandhu [2005] Supp. 2 SCR 79 : (2005) 11 SCC 600; Union of
India v. Deoki Nandan Aggarwal [1991] 3 SCR 873 : 1992 Supp
(1) SCC 323; Institute of Chartered Accountants of India v. Price
Waterhouse [1997] Supp. 2 SCR 267 : (1997) 6 SCC 312; Shiv
Shakti Coop. Housing Society v. Swaraj Developers [2003] 3 SCR
762 : (2003) 6 SCC 659 – relied on.
Pradeep Ram v. State of Jharkhand & Anr. [2019] 8 SCR 824 :
(2019) 17 SCC 326; Bhushan Kumar & Anr. v. State (NCT of
Delhi) [2012] 2 SCR 696 : (2012) 5 SCC 424; State of Gujarat
v. Afroz Mohammed Hasanfatta [2019] 1 SCR 1104 : (2019) 20
SCC 539; Ashraf Khan v. State of Gujarat (2012) 11 SCC 606;
State of Gujarat v. Anwar Osman Sumbhaniya [2019] 2 SCR
749 : (2019) 18 SCC 524; Anirudhsinhji Karansinhji Jadeja v.
State of Gujarat [1995] Supp. 2 SCR 637 : (1995) 5 SCC 302;
Rambhai Nathabhai Gadhvi v. State of Gujarat [1997] Supp. 3
SCR 356 : (1997) 7 SCC 744; Seeni Nainar Mohammed v. State
[2017] 3 SCR 312 : (2017) 13 SCC 685; Jamiruddin Ansari v.
CBI [2009] 7 SCR 759 : (2009) 6 SCC 316; Peoples’ Union for
Civil Liberties v. Union of India [2004] 1 SCR 232 : (2004) 9
SCC 580; Sanjay Dutt v. State through CBI [1994] Supp. 3 SCR
[2024] 10 S.C.R. 323

Fuleshwar Gope v. Union of India & Ors.

263 : (1994) 5 SCC 410; Arup Bhuyan v. State of Assam [2023]
8 SCR 496 : (2023) 8 SCC 745; Central Bureau of Investigation
v. Ashok Kumar Aggarwal (2014) 14 SCC 295; Parkash Singh
Badal v. State of Punjab [2006] Supp. 10 SCR 197 : (2007)
1 SCC 1; Dinesh Kumar v. Airport Authority of India [2011] 13
SCR 260 : (2012) 1 SCC 532 Central Bureau of Investigation
& Ors. v. Pramila Virendra Kumar Agarwal (2020) 17 SCC 664;
P.K. Pradhan v. State of Sikkim [2001] 3 SCR 1119 : (2001) 6
SCC 704; Rangku Dutta v. State of Assam [2011] 8 SCR 639 :
(2011) 6 SCC 358; Hussein Ghadially v. State of Gujarat [2014]
9 SCR 364 : (2014) 8 SCC 425; Mahesh Kariman Tirki v. State
of Maharashtra, SLP (Crl.) Nos.11072-11073/2022; Binod Ganjhu
v. Union of India, W.P(Crl) 308 of 2022; State of Rajasthan v.
Mohinuddin Jamal Alvi (2016) 12 SCC 608; Roopesh v. State of
Kerala, 2022 SCC OnLine Ker 1372; Vijay Rajmohan v. Central
Bureau of Investigation (Anti-Corruption Branch) [2022] 19 SCR
563 : (2023) 1 SCC 329; Standard Chartered Bank v. Directorate
of Enforcement [2005] Supp. 1 SCR 49 : (2005) 4 SCC 530; State
of Jharkhand v. Ambay Cements [2004] Supp. 6 SCR 125 : (2005)
1 SCC 368; Manjit Singh v. CBI [2011] 1 SCR 997 : (2011) 11
SCC 578; State of T.N. v. Sivarasan [1996] Supp. 8 SCR 243 :
(1997) 1 SCC 682; Priya Indoria v. State of Karnataka [2023]
15 SCR 525 : (2024) 4 SCC 749; State of U.P. v. Manbodhan
Lal Srivastava [1958] 1 SCR 533 : 1957 SCC OnLine SC 4;
State of U.P. v. Babu Ram Upadhya [1961] 2 SCR 679 : 1960
SCC OnLine SC 5; Bachahan Devi v. Nagar Nigam, Gorakhpur
[2008] 2 SCR 424 : (2008) 12 SCC 372; Vijay Dhanuka v. Najima
Mamtaj [2014] 4 SCR 171 : (2014) 14 SCC 638; Union of India v.
A.K. Pandey (2009) 10 SCC 552; C.S. Krishnamurthy v. State of
Karnataka [2005] 2 SCR 1163 : (2005) 4 SCC 81; State of M.P.
v. Harishankar Bhagwan Prasad Tripathi [2010] 9 SCR 1148 :
(2010) 8 SCC 655; State of Maharashtra v. Mahesh G. Jain
[2013] 3 SCR 850 : (2013) 8 SCC 119; Judgebir Singh v. National
Investigation Agency [2023] 6 SCR 1 : 2023 SCC OnLine SC
543; State of Punjab v. Mohd. Iqbal Bhatti [2009] 11 SCR 790 :
(2009) 17 SCC 92; State of Bihar v. P.P. Sharma, 1992 Supp (1)
SCC 222; Superintendent of Police (CBI) v. Deepak Chowdhary
[1995] Supp. 2 SCR 818 : (1995) 6 SCC 225; Mohd. Iqbal M.
Shaikh v. State of Maharashtra [1998] 2 SCR 734 : (1998) 4
SCC 494; Balbir v. State of Haryana [1999] Supp. 4 SCR 120 :
(2000) 1 SCC 285; R. Dineshkumar v. State [2015] 5 SCR 605 :
324 [2024] 10 S.C.R.

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(2015) 7 SCC 497; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla
[2007] 2 SCR 862 : (2005) 8 SCC 89; Susela Padmavathy Amma
v. Bharti Airtel Ltd [2024] 3 SCR 647 : 2024 SCC OnLine SC
311; N. Rangachari v. BSNL [2007] 5 SCR 329 : (2007) 5 SCC
108; Central Bank of India v. Asian Global Ltd. [2010] 7 SCR
694 : (2010) 11 SCC 203; Gunmala Sales (P) Ltd. v. Anu Mehta
[2014] 10 SCR 1117 : (2015) 1 SCC 103; Rajesh Viren Shah v.
Redington India Ltd. (2024) 4 SCC 305 – referred to.
Montreal Street Railway Company v. Normandin, LR (1917) AC
170 – referred to.

Books and Periodicals Cited
Maxwell in Interpretation of Statutes (11th Edn.); Cambridge
dictionary; Merriam Webster dictionary; Black’s Law Dictionary;
Burton’s Legal Thesaurus Third Edition Page 473.
List of Acts
Unlawful Activities (Prevention) Act, 1967; Unlawful Activities
(Prevention) (Recommendation & Sanction of Prosecution) Rules,
2008; Criminal Law Amendment Act, 1908; Code of Criminal
Procedure, 1973; National Investigation Agency Act, 2008.
List of Keywords
Validity of Sanction Order; Violation of statutory timelines;
Requirement of independent review; Application of mind;
Statutory exemption u/s.22 A of the UAPA; Time limit for
making recommendation by Authority; Time limit for sanction of
prosecution; Terrorist and chief of People’s Liberation Front of
India-PLFI; Activities of PLFI; Unlawful association; Demonetized
currency; Quash suo motu letter; Investigation; Sanction letter;
Penal legislation; Strict construction; Grant of sanction; Non-
application of mind; Violation of CrPC; Timelines, whether directory
or mandatory; Procedure for sanction under the UAPA; Strict
adherence to timeline.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3923
of 2024
From the Judgment and Order dated 21.03.2023 of the High Court
of Jharkhand at Ranchi in WPCR No. 443 of 2022
[2024] 10 S.C.R. 325

Fuleshwar Gope v. Union of India & Ors.

Appearances for Parties
Balaji Srinivasan, Rohan Dewan, Vishwaditya Sharma, Ms. Harsha
Tripathi, Advs. for the Appellant.
Vikramjeet Banerjee, A.S.G., Ms. Swarupama Chaturvedi, Sr. Adv.,
Ms. Rukhmini Bobde, Raghav Sharma, Madhav Singhal, Ms. Zeenat
Malick, Arvind Kumar Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
Leave granted.
2. Impugned in this appeal by special leave is a judgment of the High
Court of Jharkhand at Ranchi dated 21st March, 2023 in W.P.(Crl.)
No.443 of 2022, whereby the learned Division Bench refused to
quash –
(a) Suo motu letter No.F.No.11011/51/2017/IS-IV dated 16th January,
2018 in respect of the investigation of Bero P.S. Case No.
67/2016 dated 10th November, 2016;
(b) Sanction letter No.11011/51/2017/NIA dated 22nd July, 2020
granting sanction qua prosecution of the present appellant as
accused No.17 in R.C.-02/2018/NIA/DLI; and
(c) Cognizance order dated 25th July, 2020 u/s 120B of the Indian
Penal Code r/w Section 17, 18, 21 & 22 of U.A. (P) Act, 1967,
u/S 17(i) & (ii) of CLA Act, 1908 and charges framed on 16th
March, 2021 pending trial before the Court of learned Special
Judge, NIA, Ranchi;
It is to be noted that initially quashing was also sought in respect
of sanction vide letter No.06/Avi-01/21/2017-2637 dated 12th May,
2017 granted by the Principal Secretary, Department of Home,
Prisons & Disaster Management, Ranchi. However, paragraph 4
of the impugned judgment records that this specific prayer was not
pressed before it.
BACKGROUND FACTS
3. The facts necessary for the disposal of the present appeal, shorn
of unnecessary detail are :-
326 [2024] 10 S.C.R.

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3.1 It is alleged that the appellant, Fuleshwar Gope1 is an associate
of the People’s Liberation Front of India2 and is acquainted with
the facts that Dinesh Gope @ Kuldeep Yadav @ Banku (A-6)
is a terrorist and the chief of PLFI who collects money through
extortion. He is further said to have criminally conspired and
formed an unlawful association with members of PLFI, namely,
Dinesh Gope, Sumant Kumar @ Pawan Kumar (A-7) and Hira
Devi @ Anita Devi (A-14).
3.2 On the direction of A-6, it is alleged that the appellant formed
a company M/s. Shiv Shakti Samridhi Infra Pvt. Ltd. (A-20)
along with A-14 which was more in the nature of a partnership.
This company’s bank account was used to directly/indirectly
collect funds from legitimate or illegitimate sources for the use
of activities of PLFI on the directions of A-6.
3.3 On 10th November, 2016, FIR No.67 of 2016 at Bero, Jharkhand
was registered against six persons under Section 212, 213/34,
414 of the Indian Penal Code, 1860 and Sections 13, 17, 40
of the Unlawful Activities (Prevention) Act, 19673 and Section
17 of the Criminal Law Amendment Act, 1908 on the allegation
that Rs.25.83 lakhs of demonetized currency was brought to
the concerned branch of the State Bank of India by A-6.
3.4 On 9th January, 2017, chargesheet No.01/2017 was filed and
the learned Judicial Magistrate 1 st Class took cognizance
thereof. On 18th March, 2017, Deputy Commissioner, Ranchi
sought sanction to prosecute which was granted by the
Principal Secretary, Department of Home, Prisons & Disaster
Management. However, subsequently, the Ministry of Home
Affairs,4 Government of India issued a transfer order in respect
thereto on 16th January, 2018 and as such the FIR was re-
registered as a case under the National Investigation Agency.5
MHA further initiated suo-motu sanction on 16th October, 2019
against twelve accused persons, A-1 to A-12.

1 Hereinafter referred to as A-17
2 Abbreviated as ‘PLFI’
3 Abbreviated as ‘UAPA’
4 Abbreviated as ‘MHA’
5 Abbreviated as “NIA”
[2024] 10 S.C.R. 327

Fuleshwar Gope v. Union of India & Ors.

3.5 On 21st October, 2019, a supplementary chargesheet was filed
by NIA wherein the Appellant was named as a witness for the
Prosecution, as PW-65. On 5th November, 2019, Special Judge
NIA took cognizance of the same.
3.6 The Appellant was subsequently arrested on 13th July, 2020.
On 22nd July, 2020, suo-motu sanction was issued against an
additional seven persons (A-13 to A-20), the Appellant is A-17. A
second Supplementary Chargesheet was filed the next day i.e.
23rd July, 2020 under Sections 17, 18, 21, and 22C of the UAPA.
3.7 On 14th November, 2022, the Appellant filed a Writ Petition
before the High Court seeking for quashing of the Sanction
Order dated 22nd July, 2020, taking of the cognizance of the
second Supplementary Chargesheet vide an order 25th July,
2020 and framing of charges by order dated 16th March, 2021.
3.8 It is in this backdrop, that the judgment impugned was passed.
IMPUGNED JUDGMENT
4. Before the High Court it was contended primarily that Sections
6(2) & (3) of the National Investigation Agency Act, 20086 were not
complied with and thereby the statutory timelines mentioned therein
were completely ignored. Further, it was argued that Sections 45(1)
& (2) of the UAPA were not adhered to.
5. The High Court framed the following issues for its consideration:
“8. …
(i) Whether the Central Government has got suo-moto
power to handover the investigation to the N.I.A. once the
investigation has been completed by the District Police.
(ii) Whether the Order of Sanction dated 22.07.2020 issued
by the Under Secretary to the Government of India in
exercise of power conferred under Section 45(2) of U.A.(P)
Act, 1967 suffers from any illegality.
(iii) Whether the order taking cognizance against the
petitioner under Section 120B I.P.C read with Sections 17,

6 Hereinafter ‘NIA, 2008’
328 [2024] 10 S.C.R.

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18, 21 & 22C of U.A.(P) Act, 1967 and Section 17(i) & (ii)
of C.L.A Act, 1908 suffers from any infirmity.”
5.1 The Court in deciding the first issue placed reliance on Pradeep
Ram v. State of Jharkhand & Anr.,7 and more particularly
paragraph 49 thereof, to hold that there is no lack of jurisdiction
on the part of NIA to carry out further investigation and submit
the supplementary report(s).
5.2 The second issue concerned the legality and propriety of
sanction which was challenged on the ground that Rule 3
of the Unlawful Activities (Prevention) (Recommendation &
Sanction of Prosecution) Rules, 20088 was not followed. The
Court referred to the contents of the sanction order dated 22nd
July, 2020, impugned before it, and then concluded that the
timeline stipulated in Rule 3 referred to supra, has been strictly
adhered to.
5.3 The third issue is as to whether the cognizance order is afflicted
by non-application of mind. The Court considered the judgment
in Bhushan Kumar & Anr. v. State (NCT of Delhi)9 and State
of Gujarat v. Afroz Mohammed Hasanfatta10 to examine the
power of the Magistrate at the stage of issuing process or
summons. It was finally concluded that the approach of the
learned Special Judge in dealing with the material placed before
them by way of case diary, statements of various prosecution
witnesses, other documents and material objects, requires no
interference.
6. Aggrieved by the above findings of the High Court, the appellant is
before this Court.
ARGUMENTS ADVANCED
7. We have heard Mr. Balaji Srinivasan, learned Advocate-on-Record for
the appellant and Mr. Vikramjit Banerjee, learned Additional Solicitor
General of India and Ms. Swarupama Chaturvedi, learned Senior
Counsel for the Union of India.

7 [2019] 8 SCR 824 : (2019) 17 SCC 326
8 Hereinafter ‘2008 Rules’
9 [2012] 2 SCR 696 : (2012) 5 SCC 424
10 [2019] 1 SCR 1104 : (2019) 20 SCC 539
[2024] 10 S.C.R. 329

Fuleshwar Gope v. Union of India & Ors.

8. In assailing the impugned judgment, the appellants have advanced
the following contentions.
8.1 Section 45 of UAPA read with Rules 3 and 4 of the 2008
Rules provided for a detailed procedure with respect to grant
of sanction along with a timeline within which the same is to
be granted. The impugned sanction is not in consonance with
the statutory mandate as the same was issued 2 years and 11
months after the incident and 2 years and 6 months after the
letter dated 12th May, 2017.
8.2 Clause (2) of Section 45 of the UAPA was violated as the
requirement of ‘independent review’ while according sanction
was not complied with. It is contended that the sanction order
was passed mechanically without supplying any reasons or
application of mind. The orders are stereotypical and standard.
It is submitted that Section 45 requires independent scrutiny and
application of mind at each stage – by requisitioning authority;
by an independent agency and then by the sanctioning authority.
Since, in the present facts the same was not complied with,
sanction orders are liable to be quashed.
8.3 Validity of sanction is a question that can be raised at any
stage of proceedings. There are instances of this Court setting
aside convictions after completion of trial and even quashing
entire proceedings upon the filing of bail application, before trial
on the ground of invalidity of sanction. In furtherance of this
submission, various judgments have been referred to. Ashraf
Khan v. State of Gujarat;11 State of Gujarat v. Anwar Osman
Sumbhaniya;12 Anirudhsinhji Karansinhji Jadeja v. State of
Gujarat;13 Rambhai Nathabhai Gadhvi v. State of Gujarat;14
Seeni Nainar Mohammed v. State;15 and Jamiruddin Ansari
v. CBI.16

11 [2012] 12 SCR 1033 : (2012) 11 SCC 606
12 [2019] 2 SCR 749 : (2019) 18 SCC 524
13 [1995] Supp. 2 SCR 637 : (1995) 5 SCC 302
14 [1997] Supp. 3 SCR 356 : (1997) 7 SCC 744
15 [2017] 3 SCR 312 : (2017) 13 SCC 685
16 [2009] 7 SCR 759 : (2009) 6 SCC 316
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8.4 Both the requisitioning and sanctioning authorities have not
considered that mens rea is absent which, as is well established,
is a requisite to constitute a criminal offence unless explicitly
excluded. Reference is made to Peoples’ Union for Civil
Liberties v. Union of India17 and Sanjay Dutt v. State through
CBI.18 In referring to latter judgment, reliance is placed on the
holding that if a reasonable interpretation exists which permits
the avoidance of penalty, Courts are bound to take that approach.
8.5 The appellant was not made an accused in the first module,
i.e., FIR No.67/2016 nor in the second module (initiated by an
alleged hawala transaction which took place on 22nd May 2018)
and sanction in respect thereof was granted by the Central
Government on 16th October, 2019. He was, in fact, made an
accused in an independent transaction involving A-20 regarding
which the sanction order (impugned herein) was issued on 22nd
July, 2020.
8.6 The proviso to Section 22A exempts a person who is not in
charge of and responsible for the affairs of the company, from
prosecution. The appellant contends that he has wrongly been
roped into the proceedings even when he is a Munshi working as
a daily wager. He is illiterate and does not understand business
transactions. A-6 took undue advantage of his situation, once
A-7 and A-14 stole his identity.
8.7 No particular role has been ascribed to the appellant. This case
by the NIA has been thrust upon him given, (a) he is a director
in the company which is A-20; (b) the said company allegedly
received funds that were to be used by PLFI; (c) he hails from
the same locality and is a distant acquaintance of Dinesh Gope
who is the leader of the PLFI.
9. The stand of the respondent - Union of India, as can be understood
from the materials on record and the written submissions, is that -
9.1 The sanction order that has led to the present proceedings
has been granted after following due process. The NIA
recommended prosecution of the accused persons including

17 [2004] 1 SCR 232 : (2004) 9 SCC 580
18 [1994] Supp. 3 SCR 263 : (1994) 5 SCC 410
[2024] 10 S.C.R. 331

Fuleshwar Gope v. Union of India & Ors.

the present appellant vide its letter dated 14th July, 2020. The
Central Government, in accordance with Section 45(2) of the
UAPA referred the investigation report to the authority by letter
dated 15th July, 2020, comprising two members for the purpose
of independent review. The authority by its letter dated 16th July,
2020 forwarded its report to the Ministry within the stipulated
time period under Rule 3 of 2008 Rules. In other words, there
is no violation of the Rules.
9.2 The impugned sanction order has been passed considering all
the relevant materials on record, including the recommendation
of the authority constituted under Section 45(2) of the UAPA.
The authority consisted of a retired High Court Judge and the
retired Law Secretary.
9.3 Independent review took place at all relevant stages pursuant to
which Central Government accorded sanction. Merely because
the sanction was granted within one day of the recommendation,
it cannot be said that there was non-application of mind.
9.4 Second and Third Module as explained in the supplementary
chargesheets are not independent and separate transactions
from that initiated in the FIR, but rather, are a part of the same
continuing transaction undertaken by the accused persons to
channel the Proceeds of Terrorism. The NIA on being entrusted
with the investigation, had investigated the same and submitted
the two supplementary chargesheets.
9.5 The appellant is an active member of a terrorist gang and a close
associate of Dinesh Gope (A-6) and was involved in collecting
and channelizing funds by forming companies. A-20 of which
the Appellant/A-17 was a director, served as a front to launder
proceeds of terrorism. The claim of the appellant that A-7 &
A-14 stole his identity is unsustainable and quashing cannot
be placed on such a vague plea.
9.6 The trial is at a very advanced stage, and as such, no discretion
be exercised in quashing the criminal proceedings.
10. At the outset, we clarify that despite the last of the submissions
made by the learned Additional Solicitor General, the Appellant
invited findings on his submissions. Hence, we proceed to decide
the issue on merits.
332 [2024] 10 S.C.R.

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QUESTIONS FOR CONSIDERATION BEFORE THIS COURT
11. Having considered the factual matrix and the submissions advanced
by the learned counsel for the parties the following questions arise
for our consideration:-
(i) Whether the Validity of the Sanction Order can be challenged
at any stage?
(ii) Whether a violation of Section 45(2) of the UAPA r/w Rules 3
& 4, if any, vitiates the proceedings? In other words, whether
violation of - (a) statutory timelines and (b) the requirement of
independent review which includes application of mind, are
necessary aspects of procedure without which, any transaction
under the UAPA shall be compromised to a point that its sanctity
is rendered questionable?
(iii) Whether in the present facts, the argument of the appellant
that the transactions in connection with which he has been
brought to the book were actually independent of the ones in
which Dinesh Gope (A-6) and other members were arrayed as
accused, has any merit?
(iv) Whether, in the facts, the statutory exemption under Section
22 A of the UAPA applies to the appellant who claims to be
unaware of the affairs of the company?
CONSIDERATION
(a) UAPA : An Introduction
12. The preamble of the Act reads as under:-
“An Act to provide for the more effective prevention of
certain unlawful activities of individuals and associations
[,and for dealing with terrorist activities,] and for matters
connected therewith.”
13. A Bench of Three Judges of this Court (of which both of us were
members) considered the objective of the Act in the following terms
in Arup Bhuyan v. State of Assam19:-

19 [2023] 8 SCR 496 : (2023) 8 SCC 745
[2024] 10 S.C.R. 333

Fuleshwar Gope v. Union of India & Ors.

“85. The main objective of the UAPA is to make powers
available for dealing with activities directed against the
integrity and sovereignty of India. It is also required to
be noted that pursuant to the recommendation of the
Committee on National Integration and Regionalisation
appointed by the National Integration Council Act on whose
recommendation the Constitution (Sixteenth Amendment)
Act, 1963 was enacted, UAPA has been enacted. It appears
that the National Integration Council appointed a Committee
on National Integration and Regionalisation to look into,
inter alia, the aspect of putting reasonable restrictions
in the interests of sovereignty and integrity of India and
thereafter the UAPA has been enacted. Therefore, the
UAPA has been enacted to make powers available for
dealing with the activities directed against integrity and
sovereignty of India.
86. Now let us consider the Preamble to the UAPA,
1967. As per Preamble, the UAPA has been enacted
to provide for the more effective prevention of certain
unlawful activities of individuals and associations and
dealing with terrorist activities and for matters connected
therewith. Therefore the aim and object of enactment of
the UAPA is also to provide for more effective prevention
of certain unlawful activities. That is why and to achieve
the said object and purpose of effective prevention of
certain unlawful activities Parliament in its wisdom has
provided that where an association is declared unlawful
by a notification issued under Section 3, a person, who
is and continues to be a member of such association
shall be punishable with imprisonment for a term which
may extend to 2 years, and shall also be liable to fine.
Therefore, Parliament in its wisdom had thought it fit that
once an association is declared unlawful after following
due procedure as required under Section 3 and subject
to the approval by the Tribunal still a person continues to
be a member of such association is liable to be punished/
penalised.”
(Emphasis supplied)
334 [2024] 10 S.C.R.

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(b) Relevant Statutory Provisions
14. At this juncture, we may refer to the applicable statute and rules.
14.1 The requisite clauses of Section 2 (definitions clause of the
Act) are as under:-
“2. Definitions.-(1) In this Act, unless the context
otherwise requires,-
… … …
(e) “Designated Authority” means such officer of
the Central Government not below the rank of Joint
Secretary to that Government, or such officer of the
State Government not below the rank of Secretary
to that Government, as the case may be, as may be
specified by the Central Government or the State
Government, by notification published in the Official
Gazette;
… … …
(ec) “person” includes— (i) an individual, (ii) a
company, (iii) a firm, (iv) an organisation or an
association of persons or a body of individuals,
whether incorporated or not, (v) every artificial juridical
person, not falling within any of the preceding sub-
clauses, and (vi) any agency, office or branch owned
or controlled by any person falling within any of
the preceding sub-clauses;] (f) “prescribed” means
prescribed by rules made under this Act;
… … …
(g) “proceeds of terrorism” means,— (i) all kinds of
properties which have been derived or obtained from
commission of any terrorist act or have been acquired
through funds traceable to a terrorist act, irrespective
of person in whose name such proceeds are standing
or in whose possession they are found; or
(ii) any property which is being used, or is intended
to be used, for a terrorist act or for the purpose of
an individual terrorist or a terrorist gang or a terrorist
[2024] 10 S.C.R. 335

Fuleshwar Gope v. Union of India & Ors.

organisation. Explanation.—For the purposes of
this Act, it is hereby declared that the expression
“proceeds of terrorism” includes any property intended
to be used for terrorism;”
14.2 Section 45 of the Act is extracted below for ready reference.
“45. Cognizance of offences.— [(1)] No court shall
take cognizance of any offence—
(i) under Chapter III without the previous sanction of
the Central Government or any officer authorised by
the Central Government in this behalf;
(ii) under Chapter IV and VI without the previous
sanction of the Central Government or, as the case
may be, the State Government, and where such
offence is committed against the Government of a
foreign country without the previous sanction of the
Central Government.
(2) Sanction for prosecution under sub-section (1)
shall be given within such time as may be prescribed
only after considering the report of such authority
appointed by the Central Government or, as the case
may be, the State Government which shall make an
independent review of the evidence gathered in the
course of investigation and make a recommendation,
within such time as may be prescribed, to the Central
Government or, as the case may be, the State
Government.”
(Emphasis supplied)
14.3 Rules 3 & 4 of the 2008 Rules read as follows:-
“3. Time limit for making a recommendation by the
Authority. – The Authority shall, under sub-section
(2) of Section 45 of the Act, make its report containing
the recommendations to the Central Government [or,
as the case may be, the State Government] within
seven working days of the receipt of the evidence
gathered by the investigating officer under the Code.
336 [2024] 10 S.C.R.

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4. Time limit for sanction of prosecution.-The
Central Government [or, as the case may be, the State
Government] shall, under sub-section (2) of Section
45 of the Act, take a decision regarding sanction for
prosecution within seven working days after receipt
of the recommendations of the Authority.”
(Emphasis supplied)
ISSUE No. 1- Challenge to validity of sanction – at what stage?
15. Now, we proceed to examine the first question before this Court.
In order to do so it is essential to extract the relevant portion of the
sanction order:-
“5. And whereas, the Central Government in terms of
the provisions of Section 45(2) of the Unlawful Activities
(Prevention) Act, 1967 (as amended) and the Unlawful
Activities (Prevention) (Recommendation and Sanction of
Prosecution) Rules, 2008 referred the above mentioned
Investigation Report vide this Ministry’s letter of even no.
dated 15th July, 2020 to the Authority comprising of two
members namely Justice Dr. Satish Chandra (Retired) and
Dr TK Vishwanathan, Law Secretary (Retired), constituted
vide this Ministry’s order No. 11034/1/2009/IS-IV dated
03.07.2015 for making an independent review of the
evidence gathered in the course of investigation (term of
the Authority extended till 31.07.2021 vide this Ministry’s
order dated 12.06.2020);
6. And whereas, the Authority vide letter dated 16th July,
2020 forwarded its report to this Ministry within the time
limit as prescribed in rule Unlawful Activities (Prevention)
(Recommendation and Sanction of Prosecution) Rules,
2008 and, after being satisfied with the material available on
record and facts and circumstances therein, recommended
for sanction for prosecution against the above mentioned
accused persons/entities under the relevant sections of
law including the Unlawful Activities (Prevention) Act, 1967;
7. And now, therefore, the Central Government, after
carefully examining the material placed on record and
the recommendations of the Authority, is satisfied that a
[2024] 10 S.C.R. 337

Fuleshwar Gope v. Union of India & Ors.

prima facie case is made out against the accused persons/
entities under the relevant sections of law and hereby
accords sanction for prosecution under section 45(1) of
the Unlawful Activities (Prevention) Act, 1967…”
BY ORDER AND IN THE NAME OF
THE PRESIDENT OF INDIA
Sd/-
(Dharmendar Kumar)
Under Secretary to the Government of India”
(Emphasis supplied)
16. The question of validity of sanction being challenged, and at what
stage it may be permissible, has engaged this Court on few previous
occasions, albeit in context of different statutes. It shall be useful
to refer to them.
16.1 In Central Bureau of Investigation v. Ashok Kumar
Aggarwal 20 this Court noted the importance of the process
of grant of sanction. It has been termed “not an acrimonious
exercise but a solemn and sacrosanct act ” in the context of the
Prevention of Corruption Act, 1988.21 The Court summarised
the essentials for validity of prosecution as under:-
“16. In view of the above, the legal propositions can
be summarised as under:
16.1. The prosecution must send the entire relevant
record to the sanctioning authority including the FIR,
disclosure statements, statements of witnesses,
recovery memos, draft charge-sheet and all other
relevant material. The record so sent should also
contain the material/document, if any, which may
tilt the balance in favour of the accused and on the
basis of which, the competent authority may refuse
sanction.
16.2. The authority itself has to do complete and
conscious scrutiny of the whole record so produced

20 [2013] 14 SCR 983 : (2014) 14 SCC 295
21 Hereinafter, ‘PC Act’
338 [2024] 10 S.C.R.

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by the prosecution independently applying its mind
and taking into consideration all the relevant facts
before grant of sanction while discharging its duty
to give or withhold the sanction.
16.3. The power to grant sanction is to be exercised
strictly keeping in mind the public interest and the
protection available to the accused against whom
the sanction is sought.
16.4. The order of sanction should make it evident
that the authority had been aware of all relevant
facts/materials and had applied its mind to all the
relevant material.
16.5. In every individual case, the prosecution has to
establish and satisfy the court by leading evidence
that the entire relevant facts had been placed before
the sanctioning authority and the authority had applied
its mind on the same and that the sanction had been
granted in accordance with law.”
(Emphasis supplied)
16.2 In Parkash Singh Badal v. State of Punjab,22 this Court
held that an authority, which is the sanctioning authority is not
required to separately specify each of the offences against
the accused public servant. This is to be done at the stage of
framing of charge. What the law requires is that materials must
be placed before the sanctioning authority so as to enable the
application of mind in arriving at a decision.
16.3 In Dinesh Kumar v. Airport Authority of India,23 Lodha, J.
(as he then was) observed:
“10. In our view, invalidity of sanction where sanction
order exists, can be raised on diverse grounds like
non-availability of material before the sanctioning
authority or bias of the sanctioning authority or
the order of sanction having been passed by an

22 [2006] Supp. 10 SCR 197 : (2007) 1 SCC 1
23 [2011] 13 SCR 260 : (2012) 1 SCC 532
[2024] 10 S.C.R. 339

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authority not authorised or competent to grant such
sanction. The above grounds are only illustrative
and not exhaustive. All such grounds of invalidity or
illegality of sanction would fall in the same category
like the ground of invalidity of sanction on account
of non-application of mind—a category carved out
by this Court in Parkash Singh Badal [(2007) 1 SCC
1 : (2007) 1 SCC (Cri) 193] , the challenge to which
can always be raised in the course of trial.”
16.4 In Central Bureau of Investigation & Ors. v. Pramila
Virendra Kumar Agarwal,24 while referring to Dinesh Kumar
(supra), this Court reiterated the distinction between absence
of sanction and the alleged invalidity of sanction on account of
non-application of mind. It was held that absence as in issue
can be raised at the threshold, however, invalidity, as in issue
can only be raised at trial.
16.5 A Bench of three learned Judges in P.K. Pradhan v. State
of Sikkim25 discussed the application of Section 197 of the
Code of Criminal Procedure, 1973.26 Having referred to a host
of precedents, it was concluded that:
“15. …It is well settled that question of sanction under
Section 197 of the Code can be raised any time after
the cognizance; maybe immediately after cognizance
or framing of charge or even at the time of conclusion
of trial and after conviction as well. But there may be
certain cases where it may not be possible to decide
the question effectively without giving opportunity
to the defence to establish that what he did was in
discharge of official duty. In order to come to the
conclusion whether claim of the accused that the act
that he did was in course of the performance of his
duty was a reasonable one and neither pretended nor
fanciful, can be examined during the course of trial
by giving opportunity to the defence to establish it. In

24 (2020) 17 SCC 664
25 [2001] 3 SCR 1119 : (2001) 6 SCC 704
26 Hereinafter ‘CrPC’
340 [2024] 10 S.C.R.

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such an eventuality, the question of sanction should
be left open to be decided in the main judgment
which may be delivered upon conclusion of the trial.”
(Emphasis supplied)
16.6 In recent past, this court, in State of Karnataka v. S.
Subbegowda,27 while addressing the question of sanction and
its validity in the context of PC Act underscored that challenge
to sanction should be brought at the earliest stage possible
and held that:
“10. … It is also well settled proposition of law that
the question with regard to the validity of such
sanction should be raised at the earliest stage of
the proceedings, however could be raised at the
subsequent stage of the trial also. In our opinion, the
stages of proceedings at which an accused could raise
the issue with regard to the validity of the sanction
would be the stage when the Court takes cognizance
of the offence, the stage when the charge is to be
framed by the Court or at the stage when the trial is
complete i.e., at the stage of final arguments in the
trial. Such issue of course, could be raised before the
Court in appeal, revision or confirmation, however the
powers of such court would be subject to sub-section
(3) and sub-section (4) of Section 19 of the said Act.
It is also significant to note that the competence of
the court trying the accused also would be dependent
upon the existence of the validity of sanction, and
therefore it is always desirable to raise the issue of
validity of sanction at the earliest point of time. It cannot
be gainsaid that in case the sanction is found to be
invalid, the trial court can discharge the accused and
relegate the parties to a stage where the competent
authority may grant a fresh sanction for the prosecution
in accordance with the law.”
(Emphasis supplied)

27 [2023] 11 SCR 19 : 2023 SCC OnLine SC 911
[2024] 10 S.C.R. 341

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17. The afore-cited authorities point to only one conclusion which is
that sanction, though should be challenged at the earliest possible
opportunity, it can be challenged at a later stage as well. 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. 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.
18. 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. This emphasizes the role and sanctity of
the operation to be carried out by both these authorities. 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. 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.
[See: S. Subbegowda (supra)]
In the attending facts and circumstances of the present case, keeping
in view the submission made at the bar that the trial is underway
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and numerous witnesses (113 out of 125) already stand examined,
we refrain from returning any finding on the challenge to the validity
of the sanction qua the present appellant and leave it to be raised
before the Trial Judge, who shall, if such a question is raised decide,
it promptly.
ISSUE No.2 :
19. The next issue that we must consider is whether the timelines in
accordance with Section 45(2) of the UAPA r/w Rules 3 & 4 of
the 2008 Rules and the requirement of independent review are
necessary aspects of procedure, non-adherence of which would
vitiate proceedings. As already reproduced above, the rules provide
a seven day period within which the concerned authority is to
make its recommendation on the basis of materials gathered by
the investigating officer and a further seven days period for the
government to grant sanction for prosecution, having considered
the report of the authority.
20. The ins and outs of the Appellant’s contention is that the said timelines
were not followed and, in fact, the first sanction was granted more
than a year after the recommendation was moved. This contention
ties into another submission that there was no independent review
on the part of both recommending authority and central government,
as the sanction was merely granted within a day each.
Timelines, whether directory or mandatory?
21. Let us now consider one of the primary arguments of the appellants,
i.e., non-following of the statutory timelines.
22. Timelines, generally speaking, as part of statutory framework are
extremely essential to an effective, efficient and focused machinery
of criminal investigation, prosecution and trial. It cannot be gainsaid
that all stakeholders to the smooth functioning of these procedures
of law must do their part in realising such timelines. They are the
essential aspects of right to speedy trial, which is enshrined under
Article 21 of the Constitution of India.
23. The appellant’s objections regarding timelines is two-fold. One, that
there is a large gap between the first sanction and his own arrest, given
that he is allegedly part of the same continuing transaction according
to the respondent union, and two, that since the authority despite
[2024] 10 S.C.R. 343

Fuleshwar Gope v. Union of India & Ors.

having been granted a seven day period to consider the materials
gathered by the investigating officers and make their recommendation,
did so within barely a day, and that to in a manner which could be
termed mechanical, thereby afflicting the recommendations from the
vice of non-application of mind.
24. The first objection appears to us, to be superficial at best. In order to
understand this objection some important dates must be referred to:

S. No. Details Date
1. First Information Report (F.I.R.) 10 November 2016
th

2. Chargesheet 9th January 2017
(It is noted that investigation
continues against A-6)
3. Sanction against A-6 16th October 2019
4. First Supplementary Chargesheet 21st October 2019
(A-6 is named herein; A-17 is
brought in as a prosecution witness;
Investigation continues still further)
5. Arrest of A-17 13th July 2020
6. Sanction against A-17 22nd July 2020
7. Second Supplementary Chargesheet 23rd July 2020
(A-17 is named herein)

The gap between the first action against A-6 and the arrest of the
appellant is a result of continuing investigation, as evidenced by
the fact that the appellant was made an accused in the second
supplementary chargesheet, arising out of the same FIR under
which A-6 was initially named an accused. Since the investigation
continued, the gap cannot be termed fatal so as to render the arrest
of the appellant as unlawful or illegal. It is also to be noted that in
the first supplementary chargesheet the appellant was initially a
witness for the prosecution and with further investigation was made
an accused thereafter.
25. In order to consider the merits of the second objection, ‘application of
mind’ as a concept must be understood. It is trite in law that application
of mind must form part of any judicial, quasi-judicial or administrative
order. To demonstrate the same, consideration of material placed
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before such authority must be reflected. At the same time, it being
a cerebral exercise, it is not within reason to set out any formula to
explain what application of mind may actually mean or look like. It
is to be ascertained in the facts and circumstances of each case.
26. In the context of penal laws, authorities tasked with evaluating material
prior to granting of sanction for prosecution, or the act of granting
sanction itself must apply their mind to each and every facet of the
material placed before it to arrive at the conclusion particularly so
because the effect of the task at hand is immense. The grant/non-
grant of sanction is what sets in motion the machinery of strict laws
such as UAPA or the Terrorist and Disruptive Activities (Prevention)
Act, 1987.28 Given the severity of these laws and the nature of
activities with which they are associated, the effect that they have
on the person accused thereunder is not only within the realm of law
but also drastically effects social and personal life. It is only after the
authority having been handed this task, is of the considered view
that sanction can be granted, should it be so done.
27. The procedures qua sanctions provided in such legislations are meant
to be followed strictly, to the letter more so to the spirit. Even the
slightest of variation from the written word may render the proceedings
arising therefrom to be cast in doubt. The general principle, when
the provision is couched negatively has been noticed by this court
in Rangku Dutta v. State of Assam 29 in the following terms:
“18. It is obvious that Section 20-A(1) is a mandatory
requirement of law. First, it starts with an overriding clause
and, thereafter, to emphasise its mandatory nature, it uses
the expression “No” after the overriding clause. Whenever
the intent of a statute is mandatory, it is clothed with a
negative command. Reference in this connection can be
made to G.P. Singh’s Principles of Statutory Interpretation,
12th Edn., at pp. 404-05, the learned author has stated:
“… As stated by Crawford: ‘Prohibitive or
negative words can rarely, if ever, be directory.
And this is so even though the statute provides

28 Hereinafter referred as ‘TADA’
29 [2011] 8 SCR 639 : (2011) 6 SCC 358
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Fuleshwar Gope v. Union of India & Ors.

no penalty for disobedience.’ As observed
by Subbarao, J.: ‘Negative words are clearly
prohibitory and are ordinarily used as a
legislative device to make a statute imperative.’
Section 80 and Section 87-B of the Code of Civil
Procedure, 1908; Section 77 of the Railways
Act, 1890; Section 15 of the Bombay Rent Act,
1947; Section 213 of the Succession Act, 1925;
Section 5-A of the Prevention of Corruption Act,
1947; Section 7 of the Stamp Act, 1899; Section
108 of the Companies Act, 1956; Section 20(1)
of the Prevention of Food Adulteration Act,
1954; Section 55 of the Wild Life (Protection)
Act, 1972; the proviso to Section 33(2)(b) of the
Industrial Disputes Act, 1947 (as amended in
1956); Section 10-A of the Medical Council Act,
1956 (as amended in 1993), and similar other
provisions have therefore, been construed as
mandatory. A provision requiring ‘not less than
three months’ notice’ is also for the same reason
mandatory.”
We are in respectful agreement with the aforesaid
statement of law made by the learned author.”
For instance, under the TADA, it has been held that if the sanctioning
authority as mentioned under Section 20-A is not the one who granted
sanction and instead it was a higher authority, even then the said
sanction would be illegal. Reference in this regard may be made to
Hussein Ghadially v. State of Gujarat 30 and State of Rajasthan
v. Mohinuddin Jamal Alvi.31
28. Now turning to the procedure for sanction provided under the UAPA,
we find that a Court is enjoined from taking cognizance without
previous sanction either by the Central Government or the State
Government, as applicable, and such sanction shall only be given
after the report of the authority appointed by the Central Government
or the State Government, as the case may be, has been considered.

30 [2014] 9 SCR 364 : (2014) 8 SCC 425
31 (2016) 12 SCC 608
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This authority is to make an independent review of the evidence
gathered and make a recommendation to the government within a
time bound manner.
28.1 What flows from the above description of Section 45 is that
if any Court takes cognizance without prior sanction of the
Government, Centre or State, the same shall be in contravention
of the Act and therefore bad in law. This sanction is not a
function of the Government alone and it can only be granted
after an independent body, albeit appointed by the Government,
makes an independent review of the evidence.
28.2 The fact that sanction has been granted is not in dispute. What
is disputed by the appellant is in which the manner the same
has been granted. According to the case put up by him, the
authority’s recommendation, and immediately thereafter the
Government’s grant of sanction is evidence of non-application
of mind and stereotypical or ‘cyclostyle’ orders.
28.3 Although we have taken note of the facts leading up the present
appeal, for immediate reference we may recall here that the NIA
vide its letter dated 14th July 2020 recommended prosecution
for further seven persons (A-13 to A-20); the Ministry vide
letter dated 15th July 2020 forwarded the investigation report
to the authority; the authority, the next day, i.e., 16th July 2020,
recommended sanction for prosecution against the seven
persons.
28.4 Rules 3 & 4 of the 2008 Rules, reproduced supra, grant
the authority as also the Government a week’s time each
to recommend and then grant sanction. On the face of it,
the present grant of sanction is within the stipulated time.
However, as is submitted by the appellant, is the fact that the
recommendation, consideration and grant of sanction took
place within three days enough to vitiate the prosecution to
its entirety?
28.5 One week’s time, given to both the authorities is to enable
them to independently evaluate, first the materials placed on
record then recommend the grant of sanction; and second,
to evaluate the material and the recommendation so made
above, to finally ink the order of sanction. If the time so granted
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is thoroughly under-utilised or if either of the two authorities
overshoot the time, as stipulated in the rules, what is the
fate of the sanction which was underway? We find there to
be divergent views taken on this issue by the High Courts.
It is a recognised principle of law that the law should apply
equally to all persons which then implies that there should be
uniformity, despite various jurisdictions being at play, in how
the law is applied. The Law Commission of India in its 136th
Report recognised that “the want of uniformity” is “an evil”. The
problem has been recognised stating thus :-
“1.2 Want of uniformity an evil.- It is needless
to point out that want of uniformity in law not only
impairs the quality or the substantive or procedural
law but also causes serious inconvenience to citizens
in general. Those whose business is to advise
persons who consult them on questions of law, find
it difficult to give such advice with confidence where
the decisions are conflicting. Those who are entrusted
with the functions of adjudicating on questions of
law must spend considerable time in between two
or more possible views on a subject which falls to
be considered before them, In this process, there
is bound to result considerable waste of time and
energy. That apart, it is not a satisfactory situation
that on a given topic, the rule of law prevailing in
one part of the country should be different from
the rule prevailing in another part of the country
when the disparity arises from conflicting judicial
interpretations.”
28.5.1 The High Court of Judicature at Bombay (Nagpur Bench), in
Criminal Appeal Nos.136 & 137 of 2017 titled as Mahesh Kariman
Tirki v. State of Maharashtra’ on remand from this Court (by order
dated 19th April 2023 passed in SLP (Crl.)Nos.11072-11073/2022 for
decision on merits as also validity of sanction), regarding timelines
mentioned in the 2008 Rules, held as under:
“153. Though the word “shall” no doubt connotes
the sense of urgency, but the consequence of non-
compliance in strict sense which flows from the
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wordings in the rule, has not been spelt out under the
statute. Neither at an initial stage of the prosecution
nor even before us the defence has projected any
prejudice from strict non-compliance of time frame.
154. The very purport of the provision is to convey that
the process has to be complied with and completed
in an expeditious manner. Particularly, we have taken
into account the contingency which may occur, if the
word “shall” in the context is held mandatory. In that
case, even if a single days delay would stifle the
prosecution intending to curb the act of terrorism.
Certainly, the legislative intent behind incorporating
the term “shall” is not to stifle the prosecution on
such insignificant technicality, but conveys that the
process ought to be completed in an expeditious
manner. We are unable to persuade ourselves to
accept the contention that the term “shall” is to be
strictly treated as a mandatory provision and failure to
comply with the timeline strictly vitiates the process.
Therefore, we respectfully defer with the view taken
by the Kerala High Court in the case of Roopesh
(supra) in that regard.
155. We are of the view that and accordingly hold that
to achieve legislative intent the dual mandate is to be
complied with in its true spirit. Though a minuscule
delay would not thwart the legislative intent, but delay
if writ large from the record, which is unexplained,
would certainly have its own adverse impact on the
process of sanction.”
The import of the above extract is that the timelines mentioned in
Rules 3 and 4 of the 2008 Rules, despite having the word ‘shall’ in
them, are to be taken as directory for, if the timeline is interpreted
strictly, it may thwart the purpose of the legislation which is to curb
unlawful activities of a specified nature.
We notice that an appeal from the judgement extracted above, is
pending before this Court. In the course of the present judgement,
we make no comments on the merits thereof and clarify, that the
above extract is only for the purpose of determining the question of
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Fuleshwar Gope v. Union of India & Ors.

law, in respect of the timelines mentioned in the 2008 Rules, being
either mandatory or directory in nature.
28.5.2 The Jharkhand High Court, recently, in Binod Kumar Ganjhu
@Vinod Kumar Ganjhu @Binod Ganjhu v. Union of India32 made
similar observations and held that the timelines in the 2008 Rules
are directory. It was observed-
“23. The decision in “Roopesh” is not a binding precedent
and we do not find ourselves bound by the considerations
of judicial comity and propriety. We are unable to record our
agreement to the observations made by the Kerala High
Court in “Roopesh” that the time-line provided under Rules
3 and 4 of the Sanction Rules is mandatory. It is indeed
not an issue for debate that the expression “shall” would
not always convey mandatory compliance of the provision
in law. In our opinion, the Sanction Rules lay down a time-
line which is in the nature of a guideline keeping in mind
personal liberty of a person but such time-line cannot be
held to be mandatory and, that too, in cases where serious
allegations of commission of offence under UAP Act have
been made and found prima-facie true by the NIA.
24. Long back, it has been held by the Hon’ble Supreme
Court that the only principle which governs the criminal
justice system is miscarriage of justice. This rule has its
origin in the rules of principles of natural justice and that
is why time and again the Hon’ble Supreme Court has
laid stress on fair trial. Even on conclusion of the trial,
the judgment rendered by a competent Court was not
held illegal where a charge was not framed by the Court
[refer, “Begu v. King-Emperor” ILR (1925) 6 Lah 226]. In
this context, we may also refer to the provisions under
sections 468 to 473 of the Code of Criminal Procedure
which provide period of limitation for taking cognizance
and exclusion as well as extension of period of limitation
in certain cases. The scheme of the Code of Criminal
Procedure thus indicates that it is not every irregularity
which vitiates the trial and except in very exceptional kind of

32 W.P(Crl) 308 of 2022
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cases the Court would not step into and hold the judgment
rendered illegal. The fundamental right of an accused is
of fair trial in which he has sufficient opportunity to defend
himself by cross-examining the prosecution witnesses
to bring out falsity in the prosecution case. But beyond
this, an accused has only a statutory right to establish
that the procedure as prescribed under the law has not
been followed and such non-adherence to the procedure
prescribed has deprived him a fair opportunity to defend
himself which occasioned in miscarriage of justice. As
noticed above, the Court has taken cognizance of the
offence under the UAP Act and charge has also been
framed for committing such offence. In our considered
opinion, the Sanction Rules would have no application in
the cases of this nature because a criminal prosecution
cannot be frustrated on mere technicalities.”
Though the Special Leave Petition against this Order was dismissed,
however, it was clarified that the question of sanction under Section
45 of the UAPA was not considered.
28.5.3 Taking a diametrically opposite view, the Kerala High Court in
Roopesh v. State of Kerala,33 held that the timeline stipulated cannot
be taken to be directory, keeping in view the Legislature’s express
inclusion of the same, departing from the practice adopted in other
similarly placed laws such as TADA or Prevention of Terrorism Act,
2002,34 it held as under:
“12. The word ‘shall’ used in the Rules of 2008 has a
well defined texture as available from the identical ‘shall’
employed in the text of sub-section (1) & (2) of S.45 of
the UA(P)A; and the power conferred on the Central
Government by S.52 to make rules for carrying out the
provisions of the Act. The Rules of 2008 prescribed the time
of seven days; as spoken of in the enactment. The Act itself
is enacted, to prevent unlawful activities of individuals and
associations as also dealing with terrorist activities, which
terms are specifically defined under the enactment itself.

33 2022 SCC OnLine Ker 1372
34 ‘POTA’ for short.
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The colour is perceivable from the context in which the
enactment is saved from the challenge of having infringed
the fundamental rights guaranteed under the Constitution,
only on the ground of a reasonable restriction; which has
to be construed very strictly. The Parliament, in bringing
out the enactment and the Government, in promulgating
the Rules had the prior experience of the TADA and POTA
as also S.196 Cr.P.C; none of which had a time frame for
issuance of sanction. UA(P)A as it was originally enacted,
in its Statements of Objects and Reasons, declared it to
be in the interest of the sovereignty and integrity of India,
intended to bring in reasonable restrictions to (i) freedom
of speech and expression, (ii) right to assemble peaceably
and without arms; and (iii) right to form associations or
unions. The original enactment by S.17 required a sanction
from the Central Government or the authorised officer to
initiate prosecution.
…
14. The Parliament, in 2008, while enacting Amending Act
35 of 2008 had consciously incorporated the provision
requiring a recommendation from an Authority and
retained the requirement of sanction from the appropriate
Government, as provided in sub-section (1). It was by sub-
section (2) that an Authority was contemplated, to make
recommendations after reviewing the evidence gathered
and a specific time was permitted to be prescribed by rules.
The Central Government having brought out the Rules of
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 under S.460 (e) or under S.465
Cr.P.C. S.460 saves any erroneous proceeding, inter-
alia of taking cognizance; if done in good faith. When
sanction is statutorily mandated for taking cognizance
and if cognizance is taken without a sanction or on the
strength of an invalid one, it cannot be said to be an
erroneous proceeding taken in good faith and the act of
taking cognizance itself would stand vitiated.”
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The State of Kerala, being aggrieved by the final conclusion that the
sanction was bad in law, carried in appeal to this Court. The Special
Leave Petition bearing number SLP (Crl.) Nos.6981-6983 of 2022,
was dismissed as withdrawn with the question of law left open.
28.5.4 A similar view was taken by the High Court of Punjab and
Haryana in Manjeet Singh v. State of Punjab.35 Although decided in
the context of bail, it was held that if no decision is taken, in keeping
with the timelines of the Rules 2008, the accused would be entitled
to interim bail. It concurred with the view expressed by the Kerala
High Court in Roopesh (supra).
29. This Court has considered the issue of time-bound sanction.
While dealing with sanctions under the PC Act, it was observed by
Pamidighantam Sri Narsimha J. speaking for this Court, in Vijay
Rajmohan v. Central Bureau of Investigation (Anti-Corruption
Branch) 36 as under:
“23. Grant of sanction being an exercise of executive power,
it is subject to the standard principles of judicial review such
as application of independent mind; only by the competent
authority, without bias, after consideration of relevant
material and by eschewing irrelevant considerations. As
the power to grant sanction for prosecution has legal
consequences, it must naturally be exercised within a
reasonable period. This principle is anyway inbuilt in our
legal structure, and our constitutional courts review the
legality and proprietary of delayed exercise of power quite
frequently…
…
29. The sanctioning authority must bear in mind that
public confidence in the maintenance of the rule of law,
which is fundamental in the administration of justice, is at
stake here. By causing delay in considering the request
for sanction, the sanctioning authority stultifies judicial
scrutiny, thereby vitiating the process of determination of
the allegations against the corrupt official Subramanian

35 [2022] 19 SCR 563 : CRA-D-5 of 2023
36 (2023) 1 SCC 329
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Swamy [Subramanian Swamy v. Manmohan Singh, (2012)
3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC
(L&S) 666] . Delays in prosecuting the corrupt breeds a
culture of impunity and leads to systemic resignation to
the existence of corruption in public life. Such inaction is
fraught with the risk of making future generations getting
accustomed to corruption as a way of life. …
…
32. In the first place, non-compliance with a mandatory
period cannot and should not automatically lead to the
quashing of criminal proceedings because the prosecution
of a public servant for corruption has an element of
public interest having a direct bearing on the rule of law
[Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC
64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666.
Per A.K. Ganguly, J. : (SCC p. 102, paras 76-77)“76. The
sanctioning authority must bear in mind that what is at
stake is the public confidence in the maintenance of the
rule of law which is fundamental in the administration of
justice. Delay in granting such sanction has spoilt many
valid prosecutions and is adversely viewed in public mind
that in the name of considering a prayer for sanction, a
protection is given to a corrupt public official as a quid
pro quo for services rendered by the public official in the
past or may be in the future and the sanctioning authority
and the corrupt officials were or are partners in the same
misdeeds. …77. By causing delay in considering the
request for sanction, the sanctioning authority stultifies
judicial scrutiny and determination of the allegations
against corrupt official and thus the legitimacy of the
judicial institutions is eroded. It, thus, deprives a citizen
of his legitimate and fundamental right to get justice by
setting the criminal law in motion and thereby frustrates his
right to access judicial remedy which is a constitutionally
protected right.”]. This is also a non-sequitur. It must also
be kept in mind that the complainant or victim has no
other remedy available for judicial redressal if the criminal
proceedings stand automatically quashed. At the same
time, a decision to grant deemed sanction may cause
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prejudice to the rights of the accused as there would also
be non-application of mind in such cases.”
(Emphasis supplied)
30. The observations in Vijay Rajmohan (supra) regarding the power of
sanction being open to the standard principle of judicial review; the
same being inbuilt in our legal structure; public confidence being at
stake if a rule of law is violated, are principles that in our considered
view it will apply equally to sanctions under UAPA. In context of the
PC Act, it has been held that non-compliance of a mandatory period
cannot ipso facto lead to quashing of criminal proceedings. This is
where a difference emerges between the PC Act and the UAPA. The
implication, social as well as legal of both these acts diverges, in
as much as the latter entails far graver consequences. [See: State
of T.N. v. Sivarasan; 37 Rambhai Nathabhai Gadhvi (supra); and
Ashrafkhan (Supra)] The UAPA provides for a detailed procedure
which is to be followed in granting of sanction and undoubtedly, the
same must be followed in absolute letter and spirit.
Construction of 2008 Rules
31. It is well understood that penal statutes are statutes to be interpreted
strictly. This canon of construction has been reiterated time and
again. It is apposite here to refer to certain authorities in this context.
31.1 Maxwell in The Interpretation of Statutes (11th Edn.) has
observed:
“The effect of the rule of strict construction might
almost be summed up in the remark that, where
an equivocal word or ambiguous sentence leaves a
reasonable doubt of its meaning which the cannons
of interpretation failed to solve, the benefit of the
doubt should be given to the subject and against
the legislature which has failed to explain itself. But
it yields to the paramount rule that every statute is to
be expounded according to its expressed or manifest
intention and that all cases within the mischief aimed
at our, if the language permits, to be held to fall within
its remedial influence”

37 [1996] Supp. 8 SCR 243 : (1997) 1 SCC 682
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Fuleshwar Gope v. Union of India & Ors.

Observations in the twelfth edition, in this context, are also
educative:
“The strict construction of penal statutes seems to
manifest itself in four ways : In the requirement of
express language for the creation of an offence; in
interpreting strictly words setting out the elements
of an offence; in requiring the fulfillment to the letter
of statutory conditions precedent to the infliction of
punishment; and in insisting on the strict observance
of technical provisions concerning criminal procedure
and jurisdiction.”
31.2 In Standard Chartered Bank v. Directorate of Enforcement,38
a Constitution Bench while discussing the interpretation of
penal statutes, held as under:
“36. The rule of interpretation requiring strict
construction of penal statutes does not warrant a
narrow and pedantic construction of a provision so
as to leave loopholes for the offender to escape
(see Murlidhar Meghraj Loya v. State of Maharashtra
[(1976) 3 SCC 684 : 1976 SCC (Cri) 493] ). A penal
statute has to also be so construed as to avoid a lacuna
and to suppress mischief and to advance a remedy
in the light of the rule in Heydon’s case [(1584) 3 Co
Rep 7a : 76 ER 637] . A common-sense approach for
solving a question of applicability of a penal statute
is not ruled out by the rule of strict construction. (See
State of A.P. v. Bathu Prakasa Rao [(1976) 3 SCC
301 : 1976 SCC (Cri) 395] and also G.P. Singh on
Principles of Statutory Interpretation, 9th Edn., 2004,
Chapter 11, Synopsis 3 at pp. 754 to 756.)”
31.3 In State of Jharkhand v. Ambay Cements,39 a Bench of three
judges, while dealing with an issue relating to Bihar Industrial
Promotion Policy, 1995, discussed the construction of penal
statutes. The Court observed that:

38 [2005] Supp. 1 SCR 49 : (2005) 4 SCC 530
39 [2004] Supp. 6 SCR 125 : (2005) 1 SCC 368
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“26. Whenever the statute prescribes that a particular
act is to be done in a particular manner and also lays
down that failure to comply with the said requirement
leads to severe consequences, such requirement
would be mandatory. It is the cardinal rule of
interpretation that where a statute provides that a
particular thing should be done, it should be done in
the manner prescribed and not in any other way. It is
also settled rule of interpretation that where a statute
is penal in character, it must be strictly construed
and followed. Since the requirement, in the instant
case, of obtaining prior permission is mandatory,
therefore, non-compliance with the same must result
in cancelling the concession made in favour of the
grantee, the respondent herein.”
31.4 The course of action to be adopted by Courts, in view of
language used in the statutes has been noticed by this Court
in Manjit Singh v. CBI,40 wherein it has been observed,
referring to certain other authorities, that when the language of
a provision is unambiguous it would not be open to Courts to
adopt a hypothetical approach, leading to a different conclusion
on the ground that such different conclusion would be more
in sync with the objective of the statute.
31.5 In Priya Indoria v. State of Karnataka,41 the position of law
was stated as under:
“84. Maxwell in his treatise on Interpretation of
Statutes (10 Edn.), p. 284 states that “the tendency
of modern decisions on the whole is to narrow
materially the difference between strict and beneficial
construction”. It follows that criminal statutes such as
the CrPC are interpreted with rational regard to the
aim and intention of the legislature. What has to be
borne in the judicial mind is that the interpretation of
all statutes should be favourable to personal liberty

40 [2011] 1 SCR 997 : (2011) 11 SCC 578
41 [2023] 15 SCR 525 : (2024) 4 SCC 749
[2024] 10 S.C.R. 357

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subject to fair and effective administration of criminal
justice.”
(Emphasis supplied)
32. Rules flowing from statutory power, have the effect of a statute. Section
52 of the UAPA grants power to the Central Government to make Rules
for the purpose of carrying out the provisions of the Act. Specifically,
Section 52 (2)(ee) deals with the present situation, i.e., enables the
Government to prescribe the time for recommendation and grant of
sanction under Section 45. The 2008 Rules are unequivocal in both,
using the word ‘shall’ as also providing a specific time period for both
activities, i.e., making recommendation and granting sanction. In
the views of the High Courts discussed above, two have taken the
view that the timelines are directory, while the other two hold them
to be mandatory. In the former view, the word ‘shall’ is interpreted
as ‘may’. At this juncture, it would be apposite to refer to certain
pronouncements. Prior to going into that question, we may also refer
to the well-established principles qua criminal statutes.
32.1 In Montreal Street Railway Company v. Normandin,42 the
Judicial Committee of the Privy Council considered the question
of whether a certain provision in a statute imposing a duty on
a public body or authority was mandatory or directory. The
Court observed that:
“…The question whether provisions in a statute are
directory or imperative has very frequently arisen
in this country, but it has been said that no general
rule can be laid down, and that in every case the
object of the statute must be looked at. The cases
on the subject will be found collected in Maxwell on
Statutes, 5th ed., p. 596 and following pages. When
the provisions of a statute relate to the performance
of a public duty and the case is such that to hold
null and void acts done in neglect of this duty would
work serious general inconvenience, or injustice to
persons who have no control over those entrusted
with the duty, and at the same time would not promote

42 LR (1917) AC 170
358 [2024] 10 S.C.R.

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the main object of the Legislature, it has been the
practice to hold such provisions to be directory only,
the neglect of them, though punishable, not affecting
the validity of the acts done.”
32.2 A Bench of five learned Judges in State of U.P. v. Manbodhan
Lal Srivastava,43 while construing Article 320 of the Constitution
of India, interpretated the words ‘shall’ and ‘may’ as under:
“11. …Hence, the use of the word “shall” in a statute,
though generally taken in a mandatory sense, does
not necessarily mean that in every case it shall have
that effect, that is to say, that unless the words of the
statute are punctiliously followed, the proceeding or
the outcome of the proceeding, would be invalid. On
the other hand, it is not always correct to say that
where the word “may” has been used, the statute is
only permissive or directory in the sense that non-
compliance with those provisions will not render the
proceeding invalid. In that connection, the following
quotation from Crawford on Statutory Construction —
Article 261 at p. 516, is pertinent:
“The question as to whether a statute
is mandatory or directory depends upon
the intent of the legislature and not
upon the language in which the intent is
clothed. The meaning and intention of
the legislature must govern, and these
are to be ascertained, not only from the
phraseology of the provision, but also by
considering its nature, its design, and the
consequences which would follow from
construing it the one way or the other….”
32.3 In State of U.P. v. Babu Ram Upadhya,44 a Constitution Bench
considered the interpretation of the word ‘shall’ as mandatory
and observed as under:

43 [1958] 1 SCR 533 : 1957 SCC OnLine SC 4
44 [1961] 2 SCR 679 : 1960 SCC OnLine SC 5
[2024] 10 S.C.R. 359

Fuleshwar Gope v. Union of India & Ors.

“29. The relevant rules of interpretation may be
briefly stated thus : When a statute uses the word
“shall”, prima facie, it is mandatory, but the Court
may ascertain the real intention of the legislature by
carefully attending to the whole scope of the statute.
For ascertaining the real intention of the Legislature
the Court may consider, inter alia, the nature and the
design of the statute, and the consequences which
would follow from construing it the one way or the
other, the impact of other provisions whereby the
necessity of complying with the provisions in question
is avoided, the circumstance, namely, that the statute
provides for a contingency of the non-compliance with
the provisions, the fact that the non-compliance with
the provisions is or is not visited by some penalty, the
serious or trivial consequences that flow therefrom,
and, above all, whether the object of the legislation
will be defeated or furthered.”
32.4 In Bachahan Devi v. Nagar Nigam, Gorakhpur,45 this Court
considered at length this rule of interpretation. It was observed:
“21. The ultimate rule in construing auxiliary verbs
like “may” and “shall” is to discover the legislative
intent; and the use of the words “may” and “shall” is
not decisive of its discretion or mandates. The use
of the words “may” and “shall” may help the courts
in ascertaining the legislative intent without giving
to either a controlling or a determinating effect. The
courts have further to consider the subject-matter, the
purpose of the provisions, the object intended to be
secured by the statute which is of prime importance,
as also the actual words employed.”
Although in this case the Court was concerned with a land dispute,
the observation in respect of the use of the words ‘may’ and ‘shall’
are general principles of statutory construction and are therefore
relevant to the present discussion.

45 [2008] 2 SCR 424 : (2008) 12 SCC 372
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32.5 In Vijay Dhanuka v. Najima Mamtaj,46 this Court interpreted
the words ‘may’ and ‘shall’ in the context of CrPC as under:
“12. …The use of the expression “shall” prima facie
makes the inquiry or the investigation, as the case
may be, by the Magistrate mandatory. The word
“shall” is ordinarily mandatory but sometimes, taking
into account the context or the intention, it can be
held to be directory. The use of the word “shall” in
all circumstances is not decisive. Bearing in mind
the aforesaid principle, when we look to the intention
of the legislature, we find that it is aimed to prevent
innocent persons from harassment by unscrupulous
persons from false complaints. Hence, in our opinion,
the use of the expression “shall” and the background
and the purpose for which the amendment has
been brought, we have no doubt in our mind that
inquiry or the investigation, as the case may be, is
mandatory before summons are issued against the
accused living beyond the territorial jurisdiction of
the Magistrate.”
32.6 Crawford’s Statutory Construction (1989 reprint),47 notes as
follows in regard to ‘mandatory’ and ‘directory’ words:
“Ordinarily the words ‘shall’ and ‘must’ are mandatory,
and the work ‘may’ is directory, although they are
often used inter-changeably in legislation. This use
without regard to their literal meaning generally makes
it necessary for the courts to resort to construction in
order to discover the real intention of the legislature.
Nevertheless, it will always be presumed by the court
that the legislature intended to use the words in
their usual and natural meaning. If such a meaning,
however, leads to absurdity, or great inconvenience,
or for some other reason is clearly contrary to the
obvious intention of the legislature, then words
which ordinarily are mandatory in their nature will

46 [2014] 4 SCR 171 : (2014) 14 SCC 638
47 Cited in Union of India v. A.K. Pandey, (2009) 10 SCC 552
[2024] 10 S.C.R. 361

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be construed as directory, or vice versa. In other
words, if the language of the statute, considered as
a whole and with due regard to its nature and object,
reveals that the legislature intended the words ‘shall’
and ‘must’ to be directory, they should be given that
meaning. Similarly, under the same circumstances,
the word ‘may’ should be given a mandatory meaning,
and especially where the statute concerns the rights
and interests of the public, or where third persons
have a claim de jure that a power shall be exercised,
or whenever something is directed to be done for the
sake of justice or the public good, or is necessary to
sustain the statute's constitutionality.
Yet the construction of mandatory words as directory
and directory words as mandatory should not be
lightly adopted. The opposite meaning should be
unequivocally evidenced before it is accepted as
the true meaning; otherwise, there is considerable
danger that the legislative intent will be wholly or
partially defeated.”
(Emphasis supplied)
33. In matters of strict construction, when a timeline is provided, along
with the use of the word ‘shall’ and particularly when the same is
in the context of a law such as the UAPA, it cannot be considered
a mere technicality or formality. It demonstrates clear intention on
the part of the Legislature. A compulsion has been imposed, and
for compliance with that compulsion, a timeline has been provided.
While the legislation is aimed at curbing unlawful activities and
practices detrimental to national security and accordingly, provides
the authorities of the Government ample power to undertake and
complete all procedures and processes permissible under law to
that end, at the same time the interest of accused persons must
also be safeguarded and protected. It is expected of the Executive,
in furtherance of the ideal of protection of national security, that it
would work with speed and dispatch. The concern expressed by the
Bombay High Court is that a strict interpretation of the timeline may
defeat the objective of the legislation. While on first blush, such a
statement is attractive, we cannot lose sight of the fact that the time
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granted is only for consideration of the material collected by way of an
independent review and then making a recommendation whereafter
the sanctioning authority may then consider the materials as well
as recommendation to finally, grant or deny the sanction. It is not
for the purpose of the investigation itself, which understandably can
be a time-consuming process, given the multiple variables involved.
There have to be certain limitations within which administrative
authorities of the Government can exercise their powers. Without
such limitations, power will enter the realm of the unbridled, which
needless to state is, antithetical to a democratic society. Timelines
in such cases, serve as essential aspects of checks and balances
and of course, are unquestionably important. If the view of the
Bombay and Jharkhand High Courts is allowed to stand it would be
tantamount to the Judicial Wing supplanting its view in place of the
legislature which is impermissible in view of the doctrine of separation
of powers. We find support for our view in the Constitution Bench
decision in A.R. Antulay v. Ramdas Sriniwas Nayak,48 wherein
D.A. Desai, J., held as under:
“18. It is a well-established cannon of construction that
the court should read the section as it is and cannot
rewrite it to suit its convenience; nor does any cannon of
construction permit the court to read the section in such
manner as to render it to some extent otiose.”
[See also: Union of India v. Deoki Nandan Aggarwal;49 Institute
of Chartered Accountants of India v. Price Waterhouse;50* and
Shiv Shakti Coop. Housing Society v. Swaraj Developers51]
The legislative intent is clear. Rules made by virtue of statutory
powers prescribe both a mandate and a time limit. The same has
to be followed. Here itself we may clarify that the conclusion arrived
at by us in respect of the strict adherence to the timeline mentioned
in Rules 3 & 4 of the 2008, Rules shall not affect any decision of
the authorities where the same may or may not have been followed

48 [1984] 2 SCR 914 : (1984) 2 SCC 500
49 [1991] 3 SCR 873 : 1992 Supp (1) SCC 323
50 [1997] Supp. 2 SCR 267 : (1997) 6 SCC 312
*dissenting opinion of Saghir Ahmad, J.
51 [2003] 3 SCR 762 : (2003) 6 SCC 659
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as on date of this judgment. For ample clarity, it is stated that the
observations made in this judgment shall apply prospectively.
Independent Review
34. The bone of contention in this regard is that since both the
recommending and the granting authorities took merely a day each
in performing their respective functions, the requirement of an
independent review which is to be undertaken by both authorities
has been left unfulfilled thereby vitiating the sanction in question.
35. The meaning of the word independent, as is well understood, is
that the act, or as in this case, evaluation is made in a way which
is lone standing or which does not rely on any other factor, such as
previous consideration or evaluation by another authority, to arrive
at its conclusion.
35.1 The Cambridge dictionary defines the word independent to
mean: –
“not influenced or controlled in any way by other
people, events, or things”
35.2 The Merriam Webster dictionary defines the word independent
as:-
“1: not dependent: such as
a (1): not subject to control by others ; (2): not affiliated
with a larger controlling unit
b (1): not requiring or relying on something else :
not contingent; (2): not looking to others for one’s
opinions or for guidance in conduct; (3): not bound
by or committed to a political party
c (1): not requiring or relying on others (as for care
or livelihood); (2): being enough to free one from the
necessity of working for a living
d: showing a desire for freedom”
35.3 The Black’s Law Dictionary defines:
“INDEPENDENT. Not dependent; not subject to
control, restriction, modification, or limitation from a
given outside source.”
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Independence, which is the state of being independent would also
be instructive in our understanding.
“INDEPENDENCE. The state or condition of being free
from dependence, subjection, or control. A state of perfect
irresponsibility. Political independence is the attribute of
a nation or state which is entirely autonomous, and not
subject to the government, control, or dictation of any
exterior power.”
36. Review, as a concept is to be understood for it is the coming together
of these two aspects which will form our understanding of the term
‘independent review’.
36.1 The Cambridge dictionary defines the word review as:
“to think or talk about something again, in order to
make changes to it or to make a decision about it”
36.2 The Merriam Webster dictionary defines the word review to
mean as:
“ …2: to examine or study again especially : to
reexamine judicially
…
4 a: to go over or examine critically or deliberately;
b: to give a critical evaluation of”
36.3 The Burton’s Legal Thesaurus52 lists the following words as
being similar to ‘review’ – analyse; comment upon; contemplari;
criticize; critique; investigate; mull over; notice; critically;
reconsider; reexamine; scrutinize; study and weigh.
37. The import of the term independent review as can be understood
from the above is a re-examination, scrutiny or critique of something
which is not dependent or subject to control by any other factor or
authority. In the present facts, independent review would mean a
contemplation or study of the material gathered by the investigating
officer to conclude as to whether or not a sanction to proceed under
the provisions of the UAPA ought to be granted. Similarly, at the next

52 Third Edition; Page 473
[2024] 10 S.C.R. 365

Fuleshwar Gope v. Union of India & Ors.

stage, the sanctioning authority is to mull over and critically notice
both the materials gathered as also the conclusion drawn by the
recommending authority, in its act of granting sanction.
38. The legislative intent in bringing about the aspect of independent
review, by way of an amendment brought into effect from 31st
December 2008, within Section 45 of the UAPA is required to be
noticed.
39. The Minister for Home Affairs in moving the draft Bills before the
Council of States, highlighted the intent behind such introduction as
herein below reproduced:
“Finally, Sir, we have incorporated a very salutary provision.
To the best of our knowledge-I don’t know, I may be
corrected by the Law Minister or the Law Secretary later -
it is the first time we are introducing this. In a prosecution
under the UAPA, now, it is the executive Government
which registers the case through a police officer. It is the
executive Government which investigates the case through
an investigating agency, namely, the police department. It
is the executive Govt. which sanctions u/s. 45. Therefore,
there is a fear that a vindictive or a wrong executive Govt.
could register a case, investigate and sanction prosecution.
There is a fear. May be, it is not a fear that is entirely justified
but you cannot say that it is entirely unjustified. So what
are we doing? The executive Govt. can register the case
because no one else can register a case. The executive
Govt., through its agency, can investigate the case. But,
before sanction is granted under 45(1) we are interposing
an independent authority which will review the entire
evidence, gathered in the investigation, and then make a
recommendation whether this is a fit case of prosecution.
So, here, we are bringing a filter, a buffer, an independent
authority who has to review the entire evidence that is
gathered and, then, make a recommendation to the State
Govt. or the Central Govt. as the case may be, a fit case
for sanction. I think, this is a very salutary safeguard. All
sections of the House should welcome it. This is a biggest
buffer against arbitrariness which many Members spoke
about. Sir, these are the features in the Bill.”
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In the statement extracted above, the idea, purpose and intent
behind bringing in an independent authority to scrutinize the material
gathered by the investigating agency prior to the government being
able to issue or deny a sanction, has been clearly laid out. It was so
done to have checks over the power of the executive in this regard.
40. What flows from the above is that independence of this authority is
sine qua non, without which it would have lost its entire purpose. The
question, now to be considered is as to how it may be determined
that a particular process shone with independence or was the same
compromised by the clouds of influence, which may compromise its
character.
40.1 In C.S. Krishnamurthy v. State of Karnataka,53 the Court
speaking in the context of a sanction order under PC Act held:
“9. Therefore, the ratio is sanction order should speak
for itself and in case the facts do not so appear,
it should be proved by leading evidence that all
the particulars were placed before the sanctioning
authority for due application of mind. In case the
sanction speaks for itself then the satisfaction of
the sanctioning authority is apparent by reading the
order…”
This was also referred to in State of M.P. v. Harishankar Bhagwan
Prasad Tripathi.54
40.2 In State of Maharashtra v. Mahesh G. Jain,55 after considering
a host of authorities, including some that have been cited before
in the present case, the following factors were culled out:
“14.1. It is incumbent on the prosecution to prove that
the valid sanction has been granted by the sanctioning
authority after being satisfied that a case for sanction
has been made out.
14.2. The sanction order may expressly show that the
sanctioning authority has perused the material placed

53 [2005] 2 SCR 1163 : (2005) 4 SCC 81
54 [2010] 9 SCR 1148 : (2010) 8 SCC 655
55 [2013] 3 SCR 850 : (2013) 8 SCC 119
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before it and, after consideration of the circumstances,
has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the
evidence that the material was placed before the
sanctioning authority and its satisfaction was arrived
at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative
function and the sanctioning authority is required to
prima facie reach the satisfaction that relevant facts
would constitute the offence.
14.5. The adequacy of material placed before the
sanctioning authority cannot be gone into by the court
as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the
materials placed before it and some of them have
not been proved that would not vitiate the order of
sanction.
14.7. The order of sanction is a prerequisite as
it is intended to provide a safeguard to a public
servant against frivolous and vexatious litigants, but
simultaneously an order of sanction should not be
construed in a pedantic manner and there should
not be a hypertechnical approach to test its validity.”
In the very same judgment, it was observed that “grant of sanction is
a sacrosanct and sacred act” whose aim is to protect a public servant
against vexatious litigation. However, when the order of sanction is
(a) by a competent authority and (b) after due application of mind, it
cannot be dealt with lightly or, in other words, summarily discarded.
40.3 Recently, in Judgebir Singh v. National Investigation
Agency,56 while examining the application of Rules 3 & 4 of
2008 Rules, this court observed:
“50. …We place emphasis on the expression “within
7 working days of the receipt of the evidence

56 [2023] 6 SCR 1 : 2023 SCC OnLine SC 543
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gathered by the investigating officer under the
CrPC”. This evidence which Rule 3 of the Rules,
2008 contemplates is the final report i.e., filed by
the investigating agency under Section 173 of the
CrPC. How can one expect the authority under
sub section (2) of Section 45 to make its report
containing the recommendations without looking into
the chargesheet thoroughly containing the evidence
gathered by the investigating officer. On the contrary,
Rule 3 of the Rules, 2008 makes it explicitly
clear that the authority under sub section (2) of
Section 45 of the UAPA is obliged in law to apply
its mind thoroughly to the evidence gathered by
the investigating officer and thereafter, prepare
its report containing the recommendations to the
Central Government or the State government for
the grant of sanction. The grant of sanction is not
an idle formality. The grant of sanction should
reflect proper application of mind.
(Emphasis in original)
(Emphasis supplied)
40.4 In State of Punjab v. Mohd. Iqbal Bhatti,57 the position of
law was stated thus:
“7. Validity of an order of sanction would depend
upon application of mind on the part of the authority
concerned and the material placed before it. All
such material facts and material evidence must be
considered by it. The sanctioning authority must apply
its mind on such material facts and evidence collected
during the investigation. Even such application of
mind does not appear from the order of sanction,
extrinsic evidence may be placed before the court
in that behalf. While granting sanction, the authority
cannot take into consideration an irrelevant fact nor
can it pass an order on extraneous consideration

57 [2009] 11 SCR 790 : (2009) 17 SCC 92
[2024] 10 S.C.R. 369

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not germane for passing a statutory order. It is also
well settled that the superior courts cannot direct
the sanctioning authority either to grant sanction or
not to do so…”
40.5 In State (NCT of Delhi) v. Navjot Sandhu, 58 this Court
considered in extenso the provisions and scheme of the TADA
in connection with the ‘2001 Parliament Attack’. For the present
judgment certain observations made in regard to sanctions are
relevant. They are summarised as follows:-
40.5.1 What is to be considered is whether the material
which formed the raison d’être of the allegations was
actually placed before the authority.
40.5.2 A reiteration of the contents of the FIR or
draft chargesheet does not constitute consideration or
application of mind. It has to be something further than
that.
40.5.3 The order of sanction or recommendation or
grant of sanction, both should on their face indicate
consideration of all relevant material.
40.5.4 The standard to be applied in ‘judging’ sanction
orders is not the same as that applied to orders of quasi-
judicial bodies for it is a purely an administrative function.
40.6 The observations of this Court in State of Bihar v. P.P.
Sharma,59 are instructive. Relevant extract is as under:
“27. The sanction under Section 197 CrPC is not
an empty formality. It is essential that the provisions
therein are to be observed with complete strictness.
The object of obtaining sanction is that the authority
concerned should be able to consider for itself the
material before the Investigating Officer, before it
comes to the conclusion that the prosecution in
the circumstances be sanctioned or forbidden. To
comply with the provisions of Section 197 it must

58 [2005] Supp. 2 SCR 79 : (2005) 11 SCC 600
59 1992 Supp (1) SCC 222
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be proved that the sanction was given in respect
of the facts constituting the offence charged. It is
desirable that the facts should be referred to on the
face of the sanction. Section 197 does not require
the sanction to be in any particular form. If the facts
constituting the offence charged are not shown on
the face of the sanction, it is open to the prosecution,
if challenged, to prove before the court that those
facts were placed before the sanctioning authority.
It should be clear from the form of the sanction that
the sanctioning authority considered the relevant
material placed before it and after a consideration
of all the circumstances of the case it sanctioned
the prosecution.”
(Emphasis supplied)
41. Having given our attention to the position of law as above, let us now
turn to the instant facts. Simply put, the objection of the appellant
arises from the short amount of time taken in recommending and
granting sanction, against him which he claims to be sign of non-
application of mind and lack of independent review. We are unable
to accept such a contention. There is nothing on record to show
that relevant material was not placed before the authorities. There
is no question, as there rightly cannot be, on the competence of
either of the authorities. Therefore, solely on the ground that the
time taken was comparatively short or even that other orders were
similarly worded cannot call the credibility of the sanction into
question. As has been noted in Superintendent of Police (CBI) v.
Deepak Chowdhary,60 the authorities are required only to reach
a prima facie satisfaction that the relevant facts, as gathered in
the investigation would constitute the offence or not. In Mahesh
G. Jain (supra) it has been held that the prosecution is to prove
that a valid sanction has been granted. This needless to state, can
only be done by adducing evidence at trial, where the defence in
challenge thereto, will necessarily have to be given an opportunity
to question the same and put forward its case that the two essential
requirements detailed above, have not been met. Furthermore,

60 [1995] Supp. 2 SCR 818 : (1995) 6 SCC 225
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in Mohd. Iqbal M. Shaikh v. State of Maharashtra, 61 a case
under the TADA, this Court was faced with a similar situation, the
sanction wherein was granted by the competent authority, i.e., the
Commissioner of Police, Greater Bombay on the same day that he
received the papers in that regard. The contention of non-application
of mind was not accepted by the Court observing that so long as
the sanction was by a competent authority and after applying its
mind to all materials and the same being reflected in the order, the
sanction would hold to be valid. It was further held that when an
order does not so indicate, the prosecution is entitled to adduce
evidence aliunde of the person who granted the sanction and that
would be sufficient compliance. The Court would then, look into such
evidence to arrive at a conclusion as to whether application of mind
was present or absent. In conclusion, we hold that independent
review as well as application of mind are questions to be determined
by way of evidence and as such should be raised at the stage of
trial, so as to ensure that there is no undue delay in the proceedings
reaching their logical and lawful conclusion on these grounds. As
a result of the conclusion drawn by this Court on the first issue, it
is also to be said that if the sanction is taken exception to, on the
above grounds, it has to be raised at the earliest instance and not
belatedly, however, law does not preclude the same from being
challenged at a later stage. It is to be noted that the scheme of the
UAPA does not house a provision such as Section 19 of the PC
Act62 which protects proceedings having been initiated on the basis
of sanctions which come to be questioned at a later point in time

61 [1998] 2 SCR 734 : (1998) 4 SCC 494
62 19. Previous sanction necessary for prosecution.—
…
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in
appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in,
the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in
fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity
in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has
resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise
the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other
proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity
in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact
whether the objection could and should have been raised at any earlier stage in the proceedings.
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and, therefore, Courts ought to be careful in entertaining belated
challenges. If it is raised belatedly, however, the Court seized of the
matter, must consider the reasons for the delay prior to delving into
the merits of such objections. This we may say so for the reason
that belated challenges on these grounds cannot be allowed to act
as roadblocks in trial or cannot be used as weapons in shirking
away from convictions arising out of otherwise validly conducted
prosecutions and trials.
An order passed by an administrative authority is not to be tested by
way of judicial review on the same anvil as a judicial or quasi-judicial
order. While it is imperative for the latter to record reasons for arriving
at a particular decision, for the former it is sufficient to show that the
authority passing such order applied its mind to the relevant facts
and materials [See: P.P. Sharma (supra); Navjot Sandhu (supra)
and Mahesh G. Jain (supra)] That being the accepted position we
find no infirmity in the order granting sanction against A-17. It is not
incumbent upon such authority to record detailed reasons to support
its conclusion and, as such, the orders challenged herein, cannot
be faulted with on that ground.
ISSUE No.3 – Misjoinder of Charges and Violation of CrPC
42. The appellant contends that two disjointed transactions have been
taken together, to make him an accused and a member of the larger
conspiracy. The respondent-Union on the other hand argues that
all the transactions (First Module, Second Module, as also the one
for which the Appellant was made an accused) are inter-connected
and flow from the first sanction. Further, it has been alleged by the
appellants that there is a gross misuse of powers by the NIA and a
violation of Sections 218-224 of CrPC.
43. Section 218 features in Chapter XVII of the CrPC titled ‘The Charge’
and more specifically Part B thereof, which is joinder of charges. In
a sense, the appellant has alleged violation of an entire part of the
chapter, which submission on the face of it is difficult to accept. It

Explanation.—For the purposes of this section,—
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall
be at the instance of a specified authority or with the sanction of a specified person or any requirement
of a similar nature.
[2024] 10 S.C.R. 373

Fuleshwar Gope v. Union of India & Ors.

requires no reiteration that a person when alleging the contravention
of a section or portion of statute, has to substantiate the same by
demonstrating which aspect of the section stood not complied with
and how such non-compliance has prejudicially affected him. In the
present case, however, we are confronted with a sweeping statement
of contravention of provisions of the CrPC with little to no explanation
as to how that may be the case.
43.1 Section 218 provides, first, that there should be a separate
charge for each distinct offence; and secondly, that there should
be a separate trial for every such charge, except in the four
cases mentioned in Sections 219, 220, 221 and 223.
43.2 Section 219 provides that the three charges of three offences
of the same kind committed within one year be tried together.
The section contemplates a joint trial for three separate
offences only when the offences are essentially of a simple
kind and do not require the framing of a multitude of different
charges.
43.3 Section 220 relates to the joinder of charges of offences
committed by the same person. It applies to a case, when
different offences form part of the same transaction, and are
committed by the same person, then he may be charged with
and tried at one trial for, every such offence.
43.4 Section 221 provides for cases where it is doubtful what offence
has been committed. If a single act or series of acts is of such
nature that it is doubtful which of several offences the facts,
which can be proved will constitute, the charge can be framed
for all offences or alternative charges can be framed. At the
trial, if it is established that the accused has committed an
offence, he may be convicted though he may not have been
charged with the offence.
43.5 Section 222 applies to cases in which the charge is of an
offence which consists of several particulars, a combination
of some only of which constitutes a complete minor offence.
43.6 Section 223 provides for joinder of charges against more than
one accused person in the same trial. It deals with the plurality
of persons, who can be tried together, in other words, the joint
trial of more than one person.
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43.7 Section 224 deals with withdrawal of remaining charges on
conviction on one of several charges.
44. Sections 218 to 222 pertain to the joinder of charges against the
same person in the same trial. Section 223 deals with plurality of
persons, i.e., more than one accused in the same trial. We may
notice a few decisions of this Court, to put the application of these
provisions, in context.
44.1 In Balbir v. State of Haryana,63 a Bench of three learned
Judges observed as under:
“11. …In both the aforesaid clauses the primary
condition is that persons should have been accused
either of the same offence or of different offences
“committed in the course of the same transaction”.
The expression advisedly used is “in the course of
the same transaction”. That expression is not akin
to saying “in respect of the same subject-matter”. It
is pertinent to point out that the same expression
is employed in Section 220(1) of the Code also
[corresponding to Section 235(1) of the old Code].
The meaning of the expression “in the course of the
same transaction” used in Section 223 is not materially
different from that expression used in Section 223(1)
[sic 235(1)]. It is so understood by this Court in State
of A.P. v. Cheemalapati Ganeswara Rao [AIR 1963 SC
1850 : (1964) 3 SCR 297] . The following observation
in the said judgment is contextually quotable:
“The series of acts which constitute a
transaction must of necessity be connected
with one another and if some of them
stand out independently, they would not
form part of the same transaction but
would constitute a different transaction
or transactions. Therefore, even if the
expression ‘same transaction’ alone had
been used in Section 235(1) it would have

63 [1999] Supp. 4 SCR 120 : (2000) 1 SCC 285
[2024] 10 S.C.R. 375

Fuleshwar Gope v. Union of India & Ors.

meant a transaction consisting either of
a single act or of a series of connected
acts. The expression ‘same transaction’
occurring in clauses (a), (c) and (d) of
Section 239 as well as that occurring in
Section 235(1) ought to be given the same
meaning according to the normal rule of
construction of statutes.”
12. For several offences to be part of the same
transaction, the test which has to be applied is
whether they are so related to one another in point
of purpose or of cause and effect, or as principal and
subsidiary, so as to result in one continuous action.
Thus, where there is a commonality of purpose or
design, where there is a continuity of action, then all
those persons involved can be accused of the same
or different offences “committed in the course of the
same transaction”.”
44.2 In R. Dineshkumar v. State,64 this Court considered the aspect
of ‘transaction’ in the following terms:
“…19.3. This Court after taking note of the fact that
the clause “same transaction” is not defined under the
CrPC opined that the meaning of the clause should
depend upon the facts of each case. However, this
Court indicated that where there is a proximity of time
or place or unity of purpose and design or continuity
of action in respect of a series of acts, it is possible
to infer that they form part of the same transaction.
This Court also cautioned that every one of the
abovementioned elements need not co-exist for a
transaction to be regarded as the “same transaction”.
20. According to us, the principle enunciated in
Ganeswara Rao case [AIR 1963 SC 1850 : (1963) 2
Cri LJ 671] is that where several persons are alleged
to have committed several separate offences, which,

64 [2015] 5 SCR 605 : (2015) 7 SCC 497
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however, are not wholly unconnected, then there may
be a joint trial unless such joint trial is likely to cause
either embarrassment or difficulty to the accused in
defending themselves.”
44.3 In Nasib Singh v. State of Punjab,65 DY Chandrachud, J
(as his Lordship then was) speaking for a three-judge Bench
formulated the following principles in respect of joint or
separate trials:
“51.1. Section 218 provides that separate trials shall
be conducted for distinct offences alleged to be
committed by a person. Sections 219-221 provide
exceptions to this general rule. If a person falls under
these exceptions, then a joint trial for the offences
which a person is charged with may be conducted.
Similarly, under Section 223, a joint trial may be held
for persons charged with different offences if any of
the clauses in the provision are separately or on a
combination satisfied.
51.2. While applying the principles enunciated in
Sections 218-223 on conducting joint and separate
trials, the trial court should apply a two-pronged test,
namely, (i) whether conducting a joint/separate trial
will prejudice the defence of the accused; and/or (ii)
whether conducting a joint/separate trial would cause
judicial delay.
51.3. The possibility of conducting a joint trial will
have to be determined at the beginning of the trial
and not after the trial based on the result of the
trial. The appellate court may determine the validity
of the argument that there ought to have been a
separate/joint trial only based on whether the trial
had prejudiced the right of accused or the prosecutrix.
51.4. Since the provisions which engraft an exception
use the phrase “may” with reference to conducting
a joint trial, a separate trial is usually not contrary to

65 [2021] 13 SCR 566 : (2022) 2 SCC 89
[2024] 10 S.C.R. 377

Fuleshwar Gope v. Union of India & Ors.

law even if a joint trial could be conducted, unless
proven to cause a miscarriage of justice.
51.5. A conviction or acquittal of the accused cannot
be set aside on the mere ground that there was a
possibility of a joint or a separate trial. To set aside
the order of conviction or acquittal, it must be proved
that the rights of the parties were prejudiced because
of the joint or separate trial, as the case may be.”
The case of appellant, as is evident from the record, falls under the
latter category, i.e., multiple persons in the same trial (appellant is
A-17 out of a total of 20 accused persons). It has been held that
joint or separate trial is a decision to be taken by the learned trial
Judge at the beginning of the trial considering (a) the possibility of
prejudice; and b) causing judicial delay, if any. Further, the language of
Section 223 is directory in nature, signified by the use of word ‘may’.
45. Naseeb Singh (supra) holds that a separate trial would not be
contrary to law unless a miscarriage of justice can be demonstrated.
Similarly, we are of the view that a joint trial, if held, after having
considered the two factors given above, cannot be said to be ipso
facto prejudicial to the parties.
46. It is alleged that Dinesh Gope (A-6), who is the Chief of PLFI,
extorts money from various persons and that this company (A-20)
of which the present appellant is a director, is used to legitimise the
proceeds of such unlawful actions. The appellant, however, contends
that there is no connection between the charges levied on A-6 and
the transactions because of which he has been made an accused,
whereas the Prosecution submits that both A-6 and A-17 are part of
the same, continuing, ongoing transactions. Whether or not actually
the case is a question to be decided on the basis of evidence adduced
at trial, and not at this stage, by this Court. In State of U.P. v. Paras
Nath Singh,66 the Court observed as under:
“8. …As the provision itself mandates that no finding,
sanction or order by a court of competent jurisdiction
becomes invalid unless it is so that a failure of justice has
in fact been occasioned because of any error, omission or

66 [2009] 8 SCR 85 : (2009) 6 SCC 372
378 [2024] 10 S.C.R.

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irregularity in the charge including in misjoinder of charge,
obviously, the burden is on the accused to show that in
fact a failure of justice has been occasioned.”
Therefore, we leave it to the appellants to raise this issue before the
Trial Judge, who shall, if such a question is raised, decide it promptly
at the appropriate stage.
ISSUE No. 4 – Whether Section 22A applies to the Appellant?
47. Section 22A of the UAPA reads as under:
“22A. Offences by companies.—
(1) Where an offence under this Act has been committed
by a company, every person (including promoters of the
company) who, at the time the offence was committed,
was in charge of, and was responsible to, the company
for the conduct of the business of the company, as well as
the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished
accordingly:
Provided that nothing contained in this sub-section shall
render any such person (including promoters) liable to
any punishment provided in this Act, if he proves that the
offence was committed without his knowledge or that he
had exercised reasonable care to prevent the commission
of such offence.
(2) Notwithstanding anything contained in sub-section
(1), where an offence under this Act has been committed
by a company and it is proved that the offence has
been committed with the consent or connivance of, or is
attributable to, any neglect on the part of, any promoter,
director, manager, secretary or other officer of the company,
such promoter, director, manager, secretary or other officer
shall also be deemed to be guilty of that offence and shall
be liable to be proceeded against and punished accordingly.
Explanation.—For the purposes of this section,— (a)
“company” means any body corporate and includes a firm
or other association of individuals; and (b) “director”, in
relation to a firm, means a partner in the firm.”
[2024] 10 S.C.R. 379

Fuleshwar Gope v. Union of India & Ors.

48. For Section 22A to apply :- (a) offence has to committed by a company;
(b) all persons who at the time of the offence were in control of,
or responsible for, the company’s affairs shall be deemed guilty;
(c) such person would be saved from guilt as under (b) if they can
demonstrate that such act was (i) not in their knowledge; (ii) they
had taken reasonable care to prevent such offence from taking place.
The section further provides that if it can be proved that the offence
committed by the company was (1) with consent; (2) in connivance
of; (3) attributable to neglect on the part of any promoter, director,
manager, secretary or any other officer of the company, then they
shall be held guilty.
49. The case put forward by the appellant is that he, who is allegedly a
director of A-20 is saved by the statutory language which provides
that if a person could demonstrate and prove that the offence
was committed without his knowledge, he would be exempt from
prosecution. This exemption is recognized in other statutes as well.
We may take support of pronouncements of this Court with reference
to Sections 138 and 141 of the Negotiable Instruments Act, 188167
since the latter is similarly worded and phrased.
“141. Offences by companies.—
(1) If the person committing an offence under section 138
is a company, every person who, at the time the offence
was committed, was in charge of, and was responsible
to, the company for the conduct of the business of the
company, as well as the company, shall be deemed to be
guilty of the offence and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing contained in this sub-section shall
render any person liable to punishment if he proves that
the offence was committed without his knowledge, or
that he had exercised all due diligence to prevent the
commission of such offence:
Provided further that where a person is nominated as
a Director of a company by virtue of his holding any
office or employment in the Central Government or State

67 ‘NI Act’ for short
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Government or a financial corporation owned or controlled
by the Central Government or the State Government, as
the case may be, he shall not be liable for prosecution
under this Chapter.
(2) Notwithstanding anything contained in sub-section (1),
where any offence under this Act has been committed
by a company and it is proved that the offence has
been committed with the consent or connivance of, or is
attributable to, any neglect on the part of, any director,
manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to
be proceeded against and punished accordingly.
Explanation.—For the purposes of this section, —
(a) “company” means any body corporate and includes a
firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the
firm.”
49.1 In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla,68 a Bench of
three Judges held that only a person who is in charge of the
affairs of the company, i.e., a director, manager or secretary
and alongside that was connected to the criminal act being
committed, would be liable under this section. Relevant portion
thereof reads thus:
“10. …What is required is that the persons who are
sought to be made criminally liable under Section 141
should be, at the time the offence was committed,
in charge of and responsible to the company for the
conduct of the business of the company. Every person
connected with the company shall not fall within the
ambit of the provision. It is only those persons who
were in charge of and responsible for the conduct of
business of the company at the time of commission
of an offence, who will be liable for criminal action. It

68 [2007] 2 SCR 862 : (2005) 8 SCC 89
[2024] 10 S.C.R. 381

Fuleshwar Gope v. Union of India & Ors.

follows from this that if a director of a company who
was not in charge of and was not responsible for the
conduct of the business of the company at the relevant
time, will not be liable under the provision. The liability
arises from being in charge of and responsible for the
conduct of business of the company at the relevant
time when the offence was committed and not on
the basis of merely holding a designation or office
in a company. Conversely, a person not holding any
office or designation in a company may be liable if
he satisfies the main requirement of being in charge
of and responsible for the conduct of business of a
company at the relevant time. Liability depends on the
role one plays in the affairs of a company and not on
designation or status. If being a director or manager
or secretary was enough to cast criminal liability,
the section would have said so. Instead of “every
person” the section would have said “every director,
manager or secretary in a company is liable”…, etc.
The legislature is aware that it is a case of criminal
liability which means serious consequences so far as
the person sought to be made liable is concerned.
Therefore, only persons who can be said to be
connected with the commission of a crime at the
relevant time have been subjected to action.”
49.2 This is the settled position of law which has been subsequently
being reiterated in numerous judgments of this Court.
Illustratively, the recent judgment in Susela Padmavathy Amma
v. Bharti Airtel Ltd.,69 referring to S.M.S. Pharmaceuticals
(supra) acquitted the appellant therein of the offences under
Section 138 NI Act. Gavai, J., speaking for the Bench held
as under:
“21. It was held that merely because a person is
a director of a company, it is not necessary that
he is aware about the day-today functioning of the
company. This Court held that there is no universal

69 [2024] 3 SCR 647 : 2024 SCC OnLine SC 311
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rule that a director of a company is in charge of its
everyday affairs. It was, therefore, necessary, to aver
as to how the director of the company was in charge
of day-to-day affairs of the company or responsible
to the affairs of the company. This Court, however,
clarified that the position of a managing director or a
joint managing director in a company may be different.
This Court further held that these persons, as the
designation of their office suggests, are in charge
of a company and are responsible for the conduct
of the business of the company. To escape liability,
they will have to prove that when the offence was
committed, they had no knowledge of the offence or
that they exercised all due diligence to prevent the
commission of the offence.”
[See also: N. Rangachari v. BSNL;70 Central Bank of India v. Asian
Global Ltd.;71 Gunmala Sales (P) Ltd. v. Anu Mehta;72 and Rajesh
Viren Shah v. Redington India Ltd.73]
50. Turning our attention to the facts of the present case once more,
we find that in opposing the stand that he is a director, the appellant
submits that he, in fact, is an uneducated person who is a munshi and
whose identity has been stolen by A-7 & A-14. That being the case,
this Court cannot, at this stage, decide whether Section 22A applies
to the appellant or not. This is once again a matter for evidence.
CONCLUSION
51. Consequent to the discussion made herein above, the conclusions
drawn by this Court in respect of the questions of law for our
consideration, are as under:
51.1 The validity of sanction should be challenged at the earliest
instance available, before the Trial Court. If such a challenge is
raised at an appellate stage it would be for the person raising
the challenge to justify the reasons for bringing the same at

70 [2007] 5 SCR 329 : (2007) 5 SCC 108
71 [2010] 7 SCR 694 : (2010) 11 SCC 203
72 [2014] 10 SCR 1117 : (2015) 1 SCC 103
73 (2024) 4 SCC 305
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Fuleshwar Gope v. Union of India & Ors.

a belated stage. Such reasons would have to be considered
independently so as to ensure that there is no misuse of the
right of challenge with the aim to stall or delay proceedings.
51.2 The timelines mentioned in Rules 3 & 4 of the 2008 Rules
are couched in mandatory language and, therefore, have to
be strictly followed. This is keeping in view that UAPA being
a penal legislation, strict construction must be accorded to it.
Timelines imposed by way of statutory Rules are a way to keep
a check on executive power which is a necessary position to
protect the rights of accused persons. Independent review by
both the authority recommending sanction and the authority
granting sanction, are necessary aspects of compliance with
Section 45 of the UAPA.
52. For the next two questions, which depend on analysis of facts for
their conclusions, their answers are as below :
52.1 Sections 218-222, CrPC, are not violated. In respect of Section
223, the position of law is the one taken in Paras Nath Singh
(supra). Therefore, this Court prudently leaves it for the Trial
Court to decide, if such an issue is raised before it.
52.2 Whether or not the exemption under Section 22A applies is a
matter to be established by the way of evidence for the person
claiming such exemption has to demonstrate that either he was
not in charge of the affairs of the company which has allegedly
committed the offence, or that he had made reasonable efforts
to prevent the commission of the offence. This, once again, is
a matter for the Trial Court to consider and not for this Court to
decide at this stage, keeping in view that the trial is underway
and proceeded substantially.
53. For the reasons afore-stated, the appeal lacks merit and, accordingly,
is dismissed. Pending applications, if any, shall stand disposed of.

Result of the Case: Appeal dismissed.

†
Headnotes prepared by: Nidhi Jain