vrd 1 APPLN1256/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1256 OF 2011 Mohammed Bilal Gulam Rasul Kagzi ...Applicant v/s The State of Maharashtra and ors. ...Respondents Mr Mihir Desai i/b Mr Chetan Mali for Applicant. Mr D.J. Khambata, AG with Mrs Revati Mohite Dere and Mrs U.V. Kejariwal, APP for State. CORAM : K.U. CHANDIWAL J. DATED : 19TH DECEMBER 2012. P.C. :- 1. Heard finally. The applicant questions prosecution under the Unlawful Activities (Prevention) Act 1967 (UAP Act) asserting that mandatory provisions and rules are not followed. 2. FIR is registered on 21st August 2008. The applicant was arrested on 6th September 2008 and released on bail on 14th December 2008, the challenge basically revolves to order of sanction dated 27th August 2010. vrd 2 APPLN1256/11 3. The learned counsel for applicant and learned Advocate General explained effect and purport of section 45 of the said Act. The applicant has been charged under sections 10 and 13 of UAP Act. Section 45 mandates that no Court shall take cognizance of any offence under Chapter III without previous sanction of Central Government. Here the sanction is by State Government. 4. Learned counsel reiterated that State Government had no authority to sanction for prosecution and if yes, still the rules and time schedule is not mandatorily followed. 5. Section 45(1) and (2) reads as under :- “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; vrd 3 APPLN1256/11 (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. (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.” Reading terminology employed in the section, it is obvious, the delegation of powers vest to the State Government and it has to make independent review of the evidence and make a recommendation within time frame. 6. Rule 3 of Rules of 2008 provides 7 working days from receipt of report for recommendation by authority of evidence gathered by Investigating Officer. Rule 4 contemplates State Government shall take a decision regarding sanction for prosecution vrd 4 APPLN1256/11 within 7 working days after receipt of the recommendations of authority. 7. On 9th February 2010, sanction was sought from Government for prosecuting the applicant, it was given on 27th August 2010. The learned Director of Prosecution carried review of evidence in the light of Government letter dated 3rd June 2010 and on perusal of FIR, copy of Panchanama, copy of statement of witnesses found, there was sufficient evidence against applicant and recommended to accord sanction by letter dated 11th April 2010. 8. It is apparent, there is obviously delay in recommendation and sanction, as required under rules 3 and 4, whether it is fetal to prosecution, whether the clearance of files in time is mandatory, also needs to be seen. 9. It is well settled, statutes are to be fairly construed and faithfully applied keeping in vrd 5 APPLN1256/11 tune with legislative intent. 10. The Supreme Court has observed in paragraph 30 of the judgment in the case of State of Maharashtra v/s Jagan Gagansingh Nepali and anr., reported in 2011(5) Mah.L.J. 386 thus :- “30. We find that it will also be appropriate to refer the golden rule of interpretation which is also known as Heydon Rule of Interpretation or Mischief Rule which has been applied by the Constitution Bench of the Apex Court in the case of The Bengal Immunity Co.Ltd. v/s The State of Bihar and others, (1955) 2 SCR 603. The Apex Court observed thus : “It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case was decided that “..... for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered - 1st. What was the common law before the making of the Act, 2nd. What was the mischief and defect for which the common law did not provide, 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Common wealth, and 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress vrd 6 APPLN1256/11 the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.” In In re Mayfair Property Co.Lindley, M.R. In 1898 found the rule “as necessary now as it was when Lord Coke reported Heydon's case”. In Eastman Photographic Material Co. v/s Comptroller General of Patents, Designs and Trade Marks Earl of Halsbury reaffirmed the rule as follows : “My Lords, it appears to me that to construe the Statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy. These three being compared I cannot doubt the conclusion.” It appears to us that this rule is equally applicable to the construction of Article 286 of our Constitution. In order to properly interpret the provisions of that article it is, therefore, necessary to consider how the matter stood immediately before the Constitution came into force, what the mischief was for which the old law did not provide and the remedy which has been provided by the Constitution to cure that mischief.” Thus, intention of Legislation need not be frustrated. vrd 7 APPLN1256/11 11. The statement of objects and reasons while presenting the bill for amendment in UAP Act referred by the Central Government on 15th December 2008 illustrate that keeping in view that India has been a front runner in the global fight against terrorism, its commitment in terms of the United Nations Security Council Resolution 1373 dated 28th September 2001 and the resolve not to allow any compromise in the fight against terrorism the Unlawful Activities (Prevention) Act 1967 was amended to make provisions to deal with terrorism and terrorist activities. It is also stated :- “There have been significant developments since then at the national and the international level. Terrorist incidents and activities sponsored from across the burdens, in various parts of India and elsewhere, continue to cause concern. Hence, the legal framework for dealing with such activities, including measures related to financing of terrorism, has been further reviewed. The administrative Reforms Commission in its Report 'Combatting Terrorism – Protecting by Righteousness' has also made various recommendations in this regard. Suggestions in this respect have also been received from various other sources.” vrd 8 APPLN1256/11 12. There cannot be a quarrel that provisions of section 45 of UAP Act read in juxtaposition in section 42 of the said Act are mandatory in its character, however, as stated earlier, Rules 3, and 4 cannot be so branded. 13. Section 45(2) is introduced as a resolution of 2008 amendment, the time limit and sanction from the authority and review are checks the Legislature desired to avoid false prosecution. The measures of the checks are the administrative exigencies, procedural supervision meant to speed up the administrative process after investigation on the basis of which the prosecution has to be launched. Any fall out in adhering the time schedule does not make out a case for breach of either of the compliance of section 45(2). It has to be shown, the delay has led to the denial of right, conferred upon the accused. There is no such situation as the State desired prosecution and it was placed before the authority for review and then needs to be recommended. The defect or irregularity in official vrd 9 APPLN1256/11 compliance has no adverse bearing on the competence of the sanction in terms of section 45(2) of the said Act. 14. It is again well settled, the term 'shall appearing in the statute or 'rule' at times can be interpreted as 'should' and the admission as may, for that purposes, Legislation intents and scheme of the Legislation provides pivotal direction. Of course, there should not be gross delay or recklessness on the part of the State in complying the procedural obligation. 15. The learned Advocate General has relied to the judgment in the matter of P.T. Rajan v/s T.P.M. Sahir and others, reported in (2003) 8 SCC 498, paragraphs 48 to 50 therein, lays :- “48. Furthermore, even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a well settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time vrd 10 APPLN1256/11 prescribed therefor, the same would be directory and not mandatory. (See Shiveshwar Prasad Sinha v/s District Magistrate of Monghyr, Nomita Chowdhury v/s State of W.B. And Garbari Union Coop. Agricultural Credit Society Ltd. v/s Swapan Kumar Jana). 49. Furthermore, a provision in a statute which is procedural in nature although employs the word 'shall' may not be held to be mandatory if thereby no prejudice is caused. (See Raza Buland Sugar Co.Ltd. v/s Municipal Board, Rampur, State Bank of Patiala v/s S.K. Sharma, Venkataswamappa v/s Special Dy. Commissioner (Revenue) and Rai Vimal Krishna v/s State of Bihar). 50. The Court cannot, it is trite, supply casus omissus. Reference in this regard may be made to Baliram Waman Hiray (Dr) v/s Justice B. Lentin wherein it was observed (SCC p.443, para 27) : “27. Law must be definite, and certain. If any of the features of the law can usefully be regarded as normative, it is such basic postulates as the requirement of consistency in judicial decision-making. It is this requirement of consistency that gives to the law much of its rigour. At the same time, there is need for flexibility. Professor H.L.A. Hart regarded as one of the leading thinkers of our time observes in his influential book 'The Concept of Law' depicting the difficult task of a judge to strike a balance between certainty and flexibility: 'Where there is obscurity in the language of a statute, it results in confusion and disorder. No doubt the courts so frame their judgments as to give the impression vrd 11 APPLN1256/11 that their decisions are the necessary consequence of predetermined rules. In very simple cases it may be so, but in the vast majority of cases that trouble the courts, neither statute nor precedents in which the rules are legitimately contained allow of only one result. In most important cases there is always a choice. The judge has to choose between alternative meanings to be given to the words of a statute or between rival interpretations of what a precedent amounts to. It is only the tradition that judges 'find' and do not 'make' law that conceals this, and presents their decisions as if they were deductions smoothly made from clear pre-existing rules without intrusion of the judge's choice.'” (See also Kanta Devi v/s Union of India) The Supreme Court was dealing about electoral roll, its objects, publication of final roll being a ministerial act can be done thereafter. The Hon'ble Lordships have discussed 'shall' or 'may' to be not the text and indicated context, purport and object of the statute needs to be ascertained. It is observed, procedural provision even if it uses 'shall' may be construed as a directory if no prejudice is caused. Provision requiring statutory functionary to perform statutory function within prescribed time to be construed as directory. vrd 12 APPLN1256/11 16. The learned counsel for applicant relied on judgment in the matter of Ashrafkhan Pathan v/s State of Gujarat, in criminal appeal Nos.482 of 2002 and connected matters, decided on 26th September 2012. In the said case, there was no sanction and consequently considering the stringent provision of Terrorist and Disruptive Activities (Prevention) Act 1987, on effect of section 20-A(1) of the said Act, the Hon'ble Supreme Court discussed whether the absence of sanction could be a curable defect. It was also observed “An Act which is harsh, containing stringent provision and prescribing procedure substantially departing from the prevalent ordinary procedural law cannot be construed liberally. For ensuring rule of law its strict adherence has to be ensured.” 17. In the matter of Ravi Sharma v/s The State of Jharkhand and others, it was informed that there was no sanction as was required under section 45 of UAP Act, at the time of taking cognizance and vrd 13 APPLN1256/11 consequently the order taking cognizance was held illegal. In the said case, sanction orders were passed by the authority after cognizance of the offence under the act was taken by the learned Chief Judicial Magistrate. No such contingency has crept in, the sanction order in this case is prior to the Court taking cognizance of the matter. The charge- sheet was filed on 23rd June 2011 in which he has been charged under sections 10 and 13 of UAP Act, by calculation it is obvious the sanction was much prior to filing of the charge-sheet. 18. A feeble attempt was made throughout of no Notification of Central Government in terms of section 45(1) of the UAP Act, however, Notification of Central Government dated 21st June 2007 being No.17014/14/07-IS VII makes out a case of such delegation of power. The State Government has also pursuant to Government Notification No.TER-410-PK- 216 dated 26th May 2010 appointed Director of Prosecution as a competent authority to advise / recommend the State Government for prosecution. vrd 14 APPLN1256/11 There is thus compliance of section 45(2) of the said Act. 19. Criminal application lacks merits, dismissed. The State papers are returned to learned APP. (K.U. CHANDIWAL J.)