[UAPA] Accused Cannot Be Kept In Custody If Sanction For Taking Cognizance Is Not Obtained Within Prescribed Period: P&H HC

While stating that the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 as well as the Unlawful Activities (Prevention) Act, 1967 [UAPA] are stringent and delay in grant of sanction would entitle the accused to be released on bail, the Punjab & Haryana High Court observed that it would be a travesty of justice if the accused is kept in custody for long periods after conclusion of investigation, just to await sanction so that cognizance may be taken.

Referring to the decision of Suresh Kumar Bhikamchand Jain v. State of Maharashtra, (2013) 3 SCC 77, the Division Bench of Justice Lalit Batra and Justice Harinder Singh Sidhu observed that “as no consequence for the delay in grant of sanction has been stipulated in the UA(P) Act or Rules, it would be appropriate that in such a case the accused is released on interim bail to surrender once the sanction is received”.

Advocate Mitul Singh appeared for the Appellant, whereas Additional Attorney General Mohit Kapoor appeared for the Respondent

Going by the background of the case, Appellant was made an accused under Section 124-A, 153-A, 153-B read with Section 120-B IPC and Section 13 of the UAPA, 1967 and Section 3 of Prevention of Defacement of Property Act, 1985 [PDPA, 1985] for writing ‘Khalistani Zindabad. Later, offence under Section 124-A IPC was deleted and offences under Section 13 of the UA(P) Act and Section 3 of PDPA, 1985, were added. The police presented challan against the Appellant two days before statutory period of 90 days, after which he could have exercised his right of default bail. It was the case of the Appellant that challan was presented without obtaining mandatory sanction as per UAPA, hence he was entitled for grant of bail under Section 167(2) of CrPC. Accordingly, he challenged his remand order before the Additional Sessions Judge, which rejected his prayer. Hence, present appeal.

After perusal of the submission with respect to grant of default bail, the High Court reiterated the observations made in Suresh Kumar case in which it was held that grant of sanction cannot be contemplated under Section 167(2) CrPC.

Referring to the submissions made by the Appellant that grant of sanction for taking cognizance is mandatory and if without sanction accused is kept in custody, it is deprivation of his right to liberty, the High Court examined Section 45(1) of the UAPA which states that sanction is a pre-requisite for taking cognizance of an offence under the Act.

“In the present case, the charge sheet against the appellant was presented in the Court on 08.10.2022. On 06.10.2022 an application for grant of sanction to prosecute the appellant was moved. No decision thereon has been taken. The period prescribed under the Rules has long since expired”, added the Bench.

The Bench further added that “In the present case, neither has the appellant sought the quashing of the criminal proceedings on the ground of non-grant/ delay in grant of sanction nor has the State urged for grant of deemed sanction. Not only that no such consequence has been specified in the Act or the Rules”.

Accordingly, the High Court held that on conclusion of investigation and filing of challan, if no decision on sanction is taken and communicated within the period as specified in the 2008 Rules, the accused ought to be released on interim bail.

The High Court however clarified that the accused would give an undertaking at the time of grant of bail, that as and when sanction is granted, he would surrender before the Court, and upon his surrender it would be open to the accused to avail of his remedies including to apply for bail.

Cause Title: Manjeet Singh v. State of Punjab [Neutral Citation No. 2023: PHHC: 070778-DB]

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