1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (B.A.) No.126/2011 ( Mohan Kishtaiah Thakur ..Vs.. State of Maharashtra, through P.S.O. Sironcha, Distt. Gadchiroli ) With Criminal Application (B.A.) No.186/2011 ( Bandu S/o Mara Gawade ..Vs.. State of Maharashtra, through P.S.O. Sironcha, Distt. Gadchiroli ) With Criminal Application (B.A.) No.192/2011 ( Rajabhau S/o Poncham Medpalli and another ..Vs.. State of Maharashtra, through P.S.O. Sironcha, Distt. Gadchiroli ) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.V. Sirpurkar, Adv. for applicant. (in B.A. No.126/2011). Mr. S.P. Gadling, Adv. for applicant. (in B.A. No.186/2011). Mr. V. N. Morande, Adv. for applicants. (in B.A. No.192/2011). Mr. D.B. Patel, A.P.P. for respondent/State. CORAM : M.N. GILANI, J. Reserved on : 10.6.2011. Pronounced on : 23.6.2011. 1. All these three applications are arising out of Crime No. 2007/2010, registered at the police station Sironcha for the offences punishable under sections 120(B), 506(B) read with section 34 of the Indian Penal Code and under sections 17, 20 and 39 of the Unlawful Activities (Prevention) Act, 1967 (for short “Act of 1967”). 2 2. All the three applicants have been arrayed as an accused in the said crime and by these three separate applications they are seeking their release on bail, pending trial. 3. (a) Mohan Thakur (applicant in B.A.126/2011) was arrested on 18/12/2010 and an application filed by him for releasing him on bail, bearing Miscellaneous Criminal Application No.9/2011, was rejected by learned Additional Sessions Judge, Gadchiroli on 19/1/2011; (b) Bandu Gawade (applicant in B.A.186/2011), Rajabhau Medpalli and Ramesh Dandika (applicants in B.A.192/2011) were arrested on 2/12/2010 and application filed by them for releasing them on bail, bearing Miscellaneous Criminal Application No.51/2011 was rejected by learned Additional Sessions Judge, Gadchiroli on 17/3/2011. 4. The prosecution case, in short, is as under. On 2/12/2010 information was received by the police that at Medharam village the accused Rajabhau and Ramesh (applicants in B.A. 192/2011) are members of Naxal Dalam” and are involved in naxalite activities. The houses of both these accused were searched. In the house of Ramesh Dandika one person was found in suspicious condition whose name revealed as Bandu Gawade ((applicant in B.A.186/2011). The search of the house of Bandu revealed the objectionable articles relating to naxalite activities. In the search of house of Rajabhau two red coloured banners and two naxalite handbills were found. All the three accused persons were found to be member of banned organization called as ‘Naxal Dalam’. 3 5. During the course of investigation, statements of witnesses were recorded. In these statements it was revealed that the accused Mohan Thakur is also connected with members of Naxal Dalam and is involved in naxalite activities. It is the prosecution case that these accused persons are involved in giving threats to the villagers, they collected contribution by force for naxalite activities, fixed naxal supporting posters and banners, giving call for naxal band, closed the road traffic by cutting the road side trees. 6. While rejecting the application for bail filed by Mohan Thakur, leaned Additional Sessions Judge in order dated 19/2/2011 observed as follows “On hearing arguments on both sides, I am of the opinion that allegations against the applicant/accused are of a very serious nature. On the basis of statement of Vyankatesh Thakur, prima facie it appears that accused is a naxal supporter and also he is a naxalite. He has contact with the naxalites. On 30.11.2010 he had put witness Vyankatesh Thakur under threat and taken him on motor cycle to village Rompalli. In the night at about 9 p.m. for two hours accused was at village Rompalli. In that two hours applicant/accused meet naxalites. After two hours, applicant/accused came back. Thereafter he returned to village along with witness Vyankatesh Thakur on his motor cycle. During the search of house of applicant/accused, some posters and banners were recovered. Those posters and banners were with respect to naxal activities. Above referred fact is making clear that there is prima facie case 4 against the accused.” While rejecting the bail application filed by Bandu Gawade, Rajabahu Medpalli and Ramesh Dandika, learned Additional Sessions Judge in common order dated 17/3/2011 observed as follows :- “as per the case of police, all accused are members of Sironcha Naxal Dalam. During the course of investigation, some naxal banners and naxal hand bills were recovered from the places of residence of each applicant. Therefore there is prima facie strong case against these applicants.” 7. Before learned Additional Sessions Judge the issue of sanction which is required to be obtained under section 45 of the Act of 1967 was raised. While dealing with this objection, learned Additional Sessions Judge observed as follows :- “Here, in this matter, there is no sanction of Central Government. The learned Government Pleader has argued that police have moved the government for according sanction to apply offences under the provisions of U.A.P. Act in this matter. Further, in addition accused are facing charges for the offences under sections 120(B) and 506-B of I.P.C. Therefore argument advanced on behalf of Advocate for accused is not acceptable. I have gone the record and I am inclined to accept the submissions made by the Government Pleader.” 8. Learned counsel for the applicants in all these three applications raised issue of sanction and submitted that while submitting the chargesheet on 25/2/2011 before the Judicial Magistrate, First Class, Sironcha no 5 sanction was obtained. In an affidavit submitted to this Court on 26/4/2011 by Mr. Vitthal Niwalkar, P.S.I., Sironcha it is clarified that the chargesheet has been filed for the offences punishable under sections 20 and 39 of the Act of 1967 and for the offences punishable under sections 120(B) and 506(B) of the Indian Penal Code. He also made a reference to the notification issued by the Government of Maharashtra as provided under Unlawful Activities (Prevention) Rules, 1968. 9. Section 45(1) of the Act of 1967 provides as under :- “ (1) No Court shall take cognizance of any offence - (i) under Chapter III without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf; (ii) under Chapters 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.” Sub-section (2) of section 45 of the Act of 1967 speaks about the power of the State Government to designate an authority 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 Government. In exercise of the power conferred by section 45(2), the State Government has appointed Director of Prosecution as an authority to undertake an independent review of the evidence gathered in the course of investigation and make a recommendation to the State Government. It is evident from the affidavit filed by P.S.I. Niwalkar that 6 such authority has to make an independent review and to make a recommendation within a period of 7 working days from receipt of the proposal to the State Government. 10. The plain reading of the aforesaid provisions connotes that before the Act of 1967, provisions which are stringent in nature, are invoked there should be an authority which would make an independent review of the evidence gathered in the course of investigation. It further connotes that this onerous burden has to be discharged by the said authority within a period stipulated. The object appears to be to safeguard the liberty of an individual and particularly in view of proviso to section 5 to section 43-D of Act of 1967, which reads as follows “- “Provided that such accused persons shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. 11. On the day when these applications were heard i.e. on 10/6/2011, learned A.P.P. clarified that no sanction has been accorded by the State Government. 12. In Criminal Application No.1141/2008, (Anil Mamane and another V/s. State) learned Single Judge of this Court (Mr. S.R. Dongaonkar, J) in similar facts observed as follows :- 7 “The position that emerges now is that the sanction for prosecution for the offences under the Unlawful Activities (Prevention) Amendment Act and Section 124-A of I.P.C. is not filed on record. Therefore, it is not permissible for the learned Magistrate to take cognizance and therefore, ex-facie it appears that taking of cognizance of these offences for want of sanction, not proper. Why the sanction is still not obtained is not known. Applicants have been prosecuted for the offences u/s 142, 147 of the Indian Railways Act as well as section 120 of the I.P.C. The offence punishable u/s 120 of the I.P.C. is punishable by 1/4th of punishment provided for the main offence. Offence under section 142 of the Indian Railways Act is punishable with three months and section 147 of the Indian Railways Act is punishable with six months. In such circumstances, the bail to the applicants cannot be denied. However, considering the fact that the allegations levelled against them are serious and sanction is still awaited from the government, it would be necessary to impose conditions while releasing them on bail.” 13. For want of sanction, process of taking cognizance and proceeding with the case is halted. Consequently, the applicants will have to languish in jail waiting for sanction despite the fact that they were arrested in December 2010. Within the mandatory period (even assuming that it is extended to fullest term), available in law for completing investigation, it is expected of the investigating agency to obtain statutory sanction before filing chargesheet. Although, chargesheet has been submitted in February 2011, yet no sanction under section 45 of Act, 1967 has been obtained. Therefore, detention of the applicants any longer, cannot be justified. In the result, bail applications are allowed. 14. Applicants are directed to be released on bail on their executing 8 P.R. bond of Rs.50,000/- (Rs. Fifty Thousand Only) each with two sureties each in the like amount with a condition that they shall attend the police station Sironcha, Distt. Gadchiroli once in a month preferably in between 1st to 10th day of the month for further period of six months. JUDGE Tambaskar.