TaxTMI 
TaxTMI 
2024 (9) TMI 1681
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....d 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 Under Section 120B of the Indian Penal Code r/w Section 17, 18, 21 & 22 of U.A. (P) Act, 1967, Under Section 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 : 3.1 It is alleged that the Appellant, Fuleshwar Gope Hereinafter referred to as A-17 is an associate of the People's Liberation Front of India Abbreviated as 'PLFI' and is acquainted with the facts that Dinesh Gope @ Kuldeep Yadav @ Banku (A-6) is a terrorist and the chief of PLFI who col....
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.... 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, 2008 Hereinafter 'NIA, 2008' 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 cogniza....
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.... 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 (2012) 11 SCC 606; State of Gujarat v. Anwar Osman Sumbhaniya (2019) 18 SCC 524; Anirudhsinhji Karansinhji Jade....
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...., 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 chann....
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.... 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 Assam 2023:INSC:292 : (2023) 8 SCC 745: 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 ....
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....f 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) ....
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....e 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. 4. Time limit for sanction of prosecution.-The Central Government [or, as the cas....
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....hat 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 (2014) 14 SCC 295 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 Hereinafter, 'PC Act'. 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 by the prosec....
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....ed 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 Sikkim (2001) 6 SCC 704 discussed the application of Section 197 of the Code of Criminal Procedure, 1973 Hereinafter 'Code of Criminal Procedure'. 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....
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.... challenging validity of sanction cannot and should not be a weapon to slow down or stall otherwise valid prosecution. Other legislations such as the Code of Criminal Procedure provide mechanisms for the sanction and subsequent actions to be saved from being invalidated due to any irregularity etc. Section 465 Code of Criminal Procedure provides for the possibility that a sanction granted Under Section 197 Code of Criminal Procedure 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....
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....he 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 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 u....
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....e 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 (2011) 6 SCC 358 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 S....
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....re 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 auth....
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....arashtra' 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 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 a....
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.... 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 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 th....
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....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 Section 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 o....
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....judicial scrutiny, thereby vitiating the process of determination of the allegations against the corrupt official Subramanian 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 v....
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....n 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 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 tech....
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.... 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 (2024) 4 SCC 749, 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 Code of Criminal Procedure 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 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., enable....
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....me 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 1960 SCC OnLine SC 5, a Constitution Bench considered the interpretation of the word 'shall' as mandatory and observed as under: 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 asce....
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....slature, 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) Cited in Union of India v. A.K. Pandey, (2009) 10 SCC 552, 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, ....
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....ct that the 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. 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 (1984) 2 SCC 500, wherein D.A. Desai, J., held as unde....
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....ivelihood); (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. 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 ....
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....ve 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. 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....
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....itigants, 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 2023 SCC OnLine SC 543, 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 gathered by the investigating officer under the Code of Criminal Procedure". 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 Code of Criminal Procedure. How can one expect the authority under sub section (2) of Section 45 to make its report containing the recommendations without looking i....
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....lied 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 1992 Supp (1) SCC 222, are instructive. Relevant extract is as under: 27. The sanction Under Section 197 Code of Criminal Procedure 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 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 ....
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....ce 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 Act 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 reve....
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....ssing 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 Code of Criminal Procedure 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 Code of Criminal Procedure. 43. Section 218 features in Chapter XVII of the Code of Criminal Procedure titled 'The Charge' and more specifically Part B thereof, which is joinder of....
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.... one person. 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 (2000) 1 SCC 285, 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 S....
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....y 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 (2022) 2 SCC 89, D.Y. 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/separ....
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.... 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 (2009) 6 SCC 372, 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 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 comp....
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....ter 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 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 comp....
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....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. 2024 SCC OnLine SC 311, 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 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 charg....