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TMI Blog2024 (9) TMI 1681X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 collects money through extortion. He is further said to have criminally conspir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplementary 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 cognizance against the Petitioner Under Section 120B Indian Penal Code read with Sections 17, 18, 21 & 22C of U.A.(P) Act, 1967 and Section 17(i) & (ii) of C.L.A. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Jadeja v. State of Gujarat (1995) 5 SCC 302; Rambhai Nathabhai Gadhvi v. State of Gujarat (1997) 7 SCC 744; Seeni Nainar Mohammed v. State (2017) 13 SCC 685; and Jamiruddin Ansari v. CBI (2009) 6 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; ... ... (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 rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 2023 SCC OnLine SC 911, 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 understand this objection some important dates must be referred to: S. No. Details Date 1. First Information Report (F.I.R.) 10th November 2016 2. Chargesheet (It is noted that investigation continues against A-6) 9th January 2017 3. Sanction against A-6 16th October 2019 4. First Supplementary Chargesheet (A-6 is named herein; A-17 is brought in as a prosecution witness; Investigation continues still further) 21st October 2019 5. Arrest of A-17 13th July 2020 6. Sanction against A-17 22nd July 2020 7. Second Supplementary Chargesheet (A-17 is named herein) 23rd July 2020 The gap betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 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 5A of the Prevention of Corruption Act, 1947; Section 7 of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is thoroughly under-utilised or if either o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 460 (e) or Under Section 465 Code of Criminal Procedure. Section 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press 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 (2005) 4 SCC 530, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 LR (1917) AC 170, 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 observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 (2008) 12 SCC 372, 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 legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Bench decision in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500, 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 1992 Supp (1) SCC 323; Institute of Chartered Accountants of India v. Price Waterhouse (1997) 6 SCC 312 dissenting opinion of Saghir Ahmad, J.; and Shiv Shakti Coop. Housing Society v. Swaraj Developers (2003) 6 SCC 659] 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 as on date of this judgment. For ample clarity, it is stated that the observations made in this judgment shall apply prospectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 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 Thesaurus Third Edition; Page 473 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 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 effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered 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 (2005) 4 SCC 81, 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 (2010) 8 SCC 655. 40.2. In State of Maharashtra v. Mahesh G. Jain (2013) 8 SCC 119, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itly 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 (2009) 17 SCC 92, 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 consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration 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 (1995) 6 SCC 225, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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. 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. which protects proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 Code of Criminal Procedure 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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 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 (2015) 7 SCC 497, this Court considered the aspect of 'transaction' in the following terms: ...19.3. This Court after taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions which engraft an exception use the phrase "may" with reference to conducting a joint trial, a separate trial is usually not contrary to 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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. 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) wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector", in relation to a firm, means a partner in the firm. 49.1. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005) 8 SCC 89, 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 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence. [See also: N. Rangachari v. BSNL (2007) 5 SCC 108; Central Bank of India v. Asian Global Ltd. (2010) 11 SCC 203; Gunmala Sales (P) Ltd. v. Anu Mehta (2015) 1 SCC 103; and Rajesh Viren Shah v. Redington India Ltd. (2024) 4 SCC 305] 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 a belated stage. Such reasons would have to be considered independently so as to ensure that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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