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Chandrayya v. State Of Maharashtra
Factual and Procedural Background
The appellant applied for bail before the Special Court Gadchiroli, which was rejected on 7-8-2003. Subsequently, the appellant filed this appeal challenging the rejection of bail. The appellant contended that, as per section 50 of the Prevention of Terrorism Act, 2002, the Court was barred from taking cognizance of the offence without prior sanction from the Central or State Government. At the time of the bail application and the order rejecting bail, no such sanction had been granted, entitling the appellant to bail.
Legal Issues Presented
- Whether the absence of prior sanction under section 50 of the Prevention of Terrorism Act, 2002, bars the Court from taking cognizance of the offence and thus entitles the accused to bail.
- Whether a breach of mandatory provisions relating to sanction affects the jurisdiction and competence of the Court to try the offence under the Prevention of Terrorism Act.
- The applicability and interpretation of precedents concerning the effect of invalid investigation or absence of sanction on cognizance and trial.
Arguments of the Parties
Appellant's Arguments
- The appellant argued that section 50 of the Prevention of Terrorism Act requires prior sanction of the Central or State Government before the Court can take cognizance of the offence.
- Since no sanction was obtained at the time of bail application or the order rejecting bail, the appellant claimed entitlement to bail.
- The appellant relied on the Division Bench judgment in Mohammad Gausuddin Wali Mohammad v. State of Maharashtra, where a similar issue was decided in favor of granting bail due to absence of sanction.
Respondent's Arguments
- The State/respondent conceded that no sanction under section 50 was granted till date.
- However, the respondent sought to distinguish the Division Bench judgment by relying on the Supreme Court decision in Union of India v. Prakash P. Hinduja.
- The respondent argued that errors or irregularities in investigation do not necessarily vitiate the trial or cognizance taken by the Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohammad Gausuddin Wali Mohammad v. State of Maharashtra, 2003 Bom.C.R.(Cri.) (N.B.)1727 | Interpretation of section 50 of the Prevention of Terrorism Act regarding necessity of prior sanction before cognizance and entitlement to bail in absence of sanction. | The Court relied on this Division Bench judgment to hold that absence of sanction bars cognizance and entitles the accused to bail. |
| Union of India v. Prakash P. Hinduja, 2003(6) S.C.C. 195 | Effect of irregularities or illegality in investigation on cognizance and trial; distinction between investigation defects and Court's jurisdiction. | The Court distinguished this Supreme Court ruling as it dealt with investigation irregularities, not mandatory procedural bars like section 50 sanction under POTA; thus, it was held not applicable to this case. |
| Parbhu v. Emperor and Lumbhardar Zutshi V.R. | Effect of breach of mandatory provisions in investigation on jurisdiction and trial. | Referenced to emphasize that illegality in investigation does not affect Court's jurisdiction unless it causes miscarriage of justice; distinguished from mandatory sanction requirement under section 50 POTA. |
Court's Reasoning and Analysis
The Court examined the appellant’s contention regarding the mandatory requirement under section 50 of the Prevention of Terrorism Act, 2002, that prior sanction of the Central or State Government is a precondition for the Court to take cognizance of an offence. It noted that no such sanction was obtained at the time of the bail application or the rejection order.
The Court considered the Division Bench judgment in Mohammad Gausuddin Wali Mohammad v. State of Maharashtra, which held that absence of sanction under section 50 precludes cognizance and entitles the accused to bail. The Court also analyzed the Supreme Court decision in Union of India v. Prakash P. Hinduja, which dealt with the effect of irregularities in investigation on trial proceedings. The Court distinguished this precedent on the ground that it concerned procedural irregularities in investigation and did not address mandatory provisions governing cognizance or trial competence, such as section 50 of POTA.
Relying on these principles, the Court concluded that the absence of sanction under section 50 constitutes a breach of mandatory provisions regulating the Court's jurisdiction to take cognizance. Therefore, the Special Court’s order rejecting bail was set aside, and bail was granted subject to conditions.
Holding and Implications
The appeal is allowed. The impugned order rejecting bail is set aside, and the accused is ordered to be released on bail upon furnishing a cash surety of Rs. 5,00,000/- with one surety in the like amount and reporting to the police station thrice weekly until trial concludes.
The decision directly affects the parties by granting bail to the appellant due to the absence of the mandatory sanction under section 50 of the Prevention of Terrorism Act. No new precedent beyond the application of existing authority on the necessity of sanction and its effect on cognizance was established.
Cases referred :
1. Mohammad Gausuddin Wali Mohammad v. State of Maharashtra, 2003 Bom.C.R.(Cri.) (N.B.)1727 : 2003 All.M.L.R.(Cri.) 1107.
2. Union of India v. Prakash P. Hinduja, 2003(6) S.C.C. 195.
Advocates appeared :
Amol Deshpande, for appellant.
S.G. Loney, A.P.P., for State/respondent.
Per DESHPANDE D.G., J.: - The appellant has applied for bail before the Special Court. His application was rejected by the Special Court Gadchiroli on 7-8-2003. Hence he has filed this appeal.
2. One of the contentions raised by the appellant before the Special Court was that as required by section 50 of the Prevention of Terrorism Act, 2002, there was a bar in Court taking cognizance of offence without the previous sanction of the Central Government or as the case may be, the State Government. According to the appellant when he applied for bail and when the order of rejection of bail came to be passed, at that time there was no sanction as required by section 50 and therefore he was entitled for bail.
3. The Counsel for the appellant drew our attention to the Division Bench judgment of this Court reported in 2003 Bom.C.R.(Cri.) (N.B.)1727 : 2003 All Mah.L.R. (Criminal) 1107, given in Criminal Appeal No. 3/2003 with Criminal Appeal No. 3/2003 with Criminal Appeal No. 679/2002 in (Mohammad Gausuddin Wali Mohammad v. State of Maharashtra)1, where a similar question arose that about the interpretation of section 50 and the effect on not obtaining the sanction and the Division Bench ultimately held that in the circumstances of the case accused was entitled for bail, so the accused in that case was granted bail.
4. One more Criminal Appeal No. 535 of 2003 came before us and we passed a similar order granting bail in that appeal following the judgment of the Division Bench referred to above.
5. In the present appeal No. 561/03 Shri Loney A.P.P. conceded that till today there is no sanction as required under section 50 of Prevention of Terrorism Act. He however tried to distinguish the Division Bench judgment of this Court referred to above and relied by us, on the basis of the judgment reported in 2003(6) S.C.C. 195, (Union of India v. Prakash P. Hinduja & another)2. However, attention in that regard was drawn to paragraphs 20 and 21. We reproduce the said paras as under:
20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the Officer in charge of the Police Station in Court under section 173(2) Cri.P.C., this field being exclusively reserved for the investigating agency.
21. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also the examined. Section 5-A of the Prevention of Corruption Act, 1947 provided that no Police Officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under section 161, section 165 and section 165-A I.P.C. or under section 5 of the said Act without the order of a Magistrate of the first class. In H.N. Rishbud, the investigation was entirely completed by an Officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down:
"9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. section 193 and 195 to 199.
These latter section regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial."
The Court after referring to Parbhu v. Emperor and Lumbhardar Zutshi V.R., held that if cognizance is infact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. This being the legal position, even assuming for the sake of argument that CBI committed an error or irregularity in submitting the charge-sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in pursuance thereof be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case.
It will be clear from the aforesaid observation of the Supreme Court that Supreme Court was not concerned with the effect of breach of the mandatory provisions regulating the competence or procedure of the Court as regards cognizance or trial like a case under POTA. Even the reference by the Supreme Court to Prabhu v. Emperor and Lumbhardar Zutshi V.R. does not speak of any breach of mandatory provisions regulating the competence or procedure of the Court as regards cognizance or trial, but it speaks of irregularity and investigation and the effect thereof.
It will be clear that the judgment of the Supreme Court relied upon by Shri Loney A.P.P. is of no help firstly, because in the instant case there is a clear breach of the mandatory provisions regarding taking the cognizance by the Court and the provisions of section 50 of the Prevention of Terrorism Act. There is clear cut bar in Court taking the cognizance of offence under this Act without the previous sanction of Central Government or, as the case may be, the State Government. In fact, this aspect of the matter has been considered by the Division Bench in Mohammad Gausuddin Wali Mohammad v. State of Maharashtra, 2003 Bom.C.R.(Cri.) (N.B.)1727 referred to above with all facets thereof and since the judgment referred to above was relied upon by us in Criminal Appeal No. 535/03 and since in this case also till today there is no sanction we pass the following order:
The impugned order of the Special Court Gadchiroli rejecting the application of the accused for bail dated 7-8-2003 is set aside. Accused be released on bail subject to furnished a cash surety of Rs. 5,00,000/- (Rs. five lakhs only) with one surety in the like amount. He will report to Police Station Asavali district Gadchiroli, thrice a week i.e. on Monday, Wednesday and Saturday till the conclusion of trial. Certified copy be expedited.
Appeal allowed.
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