The Supreme Court has quashed the Kerala high court order which discharged an accused, arrested for his alleged Maoist links, for the purported offences including sedition and under the provisions of the anti-terror law, the Unlawful Activities (Prevention) Act, in three cases.
Dealing with the appeals filed by Kerala and others, the apex court said the high court's September 2019 order was passed by a single judge which can be said to be 'absolutely contrary' to the statutory provision under the National Investigation Agency Act and the law laid down earlier by the top court.
A bench of Justices M R Shah and A S Bopanna was told by senior advocate Maninder Singh, who was appearing for the state, that revision petitions filed by accused Roopesh in the high court against the order of a special court refusing to discharge him for these offences ought to have been heard by a division bench as mandated under sub-Section (2) of Section 21 of the NIA Act.
“In view of the above, all these appeals succeed and the common impugned judgment and order passed by the high court...discharging the accused is hereby quashed and set aside and the matters are remanded to the high court to decide the revision petition...afresh by the division bench in accordance with law and on merits,” the bench said in its October 29 order.
The top court said the revision petitions be decided and disposed of by a division bench of the high court at the earliest and preferably, within six months from the date of receipt of its order.
“In the present case, admittedly, the impugned judgment and order has been passed by the single judge which can be said to be absolutely contrary to the statutory provision, namely, section 21(1) and 21(2) of the NIA Act and the law laid down by this court in the aforesaid decisions (referred to in the order),” the bench noted, while allowing the appeals filed by the state against the high court order.
The high court had allowed the revision petitions filed by the accused, who was arrested in December 2015, and discharged him for the alleged offences under sections 20 and 38 of the UAPA and under section 124-A (sedition) of the Indian Penal Code
While Section 20 of the UAPA deals with punishment for being member of terrorist organisation, Section 38 of the anti-terror law pertains to offences relating to membership of a terror outfit.
During the arguments before the top court, Singh had relied upon some earlier judgements delivered by the apex court and also on Section 21 of the NIA Act and said that order passed by the single judge of the high court was 'unsustainable.'
The bench also noted that counsel appearing for the accused had not disputed the proposition of law laid down by the apex court in the judgements referred to by the state's counsel.
“In view of the above and the law laid down by this court...and even considering Section 21 of the NIA Act, any order passed by the special court, not being an interlocutory order, is subjected to appeal before the high court and to be heard by a bench of two judges of the high court,” the bench said.
The apex court made clear that it has not expressed anything on merits in favour of either parties and the high court judgment has been set aside solely on this ground.
“It goes without saying that all the contentions/ defences, which may be available to the respective parties are kept open to be considered by the division bench of the high court in accordance with law and on its own merits,” it said.
The high court had passed the order while dealing with the petitions filed by the accused against the sessions court's order.
The sessions court had dismissed the pleas filed by the accused, who had sought discharge on the grounds including that the sanction obtained by the prosecution for prosecuting him under the UAPA could not be regarded as valid in view of the alleged violation of the provisions of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008.
The accused had also claimed that the cognisance taken by the sessions court for the offence under Section 124-A of the IPC was 'unsustainable' as his prosecution sans the requisite sanction under section 196 of the Code of Criminal Procedure was bad in law.
Section 196 of the CrPC deals with prosecution for offences against the state and for criminal conspiracy to commit them.
The high court had noted that the petitioner was involved in three cases, including the one in which it was alleged that on November 1, 2013, he along with five others alleged members of a banned Maoist organisation had visited a tribal colony and distributed pamphlets containing purported seditious writings.
