Supreme Court issues notice on Kerala government's appeal against Kerala High Court order quashing UAPA charges against alleged Maoist

The Supreme Court on Friday last week sought the response of an alleged Maoist leader in a plea by the Kerala government against a High Court judgment quashing the offences under the Unlawful Activities Prevention Act (UAPA) against him [State of Kerala vs Roopesh]..A Bench of Justices MR Shah and BV Nagarathna issued notice returnable in five weeks. The High Court had, in March this year, quashed charges under the UAPA and sedition (Section 124A of Indian Penal Code) against Roopesh, an alleged member of the Communist Party of India (Maoist) on the ground that there was delay by the State government in issuing sanction under Section 45 of the UAPA.Section 45 mandates previous sanction by the appropriate government for the Court to take cognisance of offence under UAPA.A division bench of the High Court Justices K Vinod Chandran and C Jayachandran noted that the mandatory deadline for such sanction was not complied with by the State government, which sat on the same for six months.Regarding the offence of sedition under Section 124A IPC that the accused was charged with, the Court held that when the cognisance taken by the special court is found to be invalid, no trial can be held by the same court for an IPC offence either.The plea before the apex court, filed through advocate Harshad V Hameed, sought an ex-parte interim stay of the High Court order. It contended that the purpose of the UAPA is not to allow the offender to sneak out of the meshes of law.The High Court could not have applied the rule of strict construction so as to render the statute futile and any irregularities with the Magistrate taking cognisance of the offences does not vitiate the proceedings, it was submitted. "Cognizance has been taken against the offences not against the offender and the sanction accorded against the offender and not against the offences. Any irregularity or error in passing the sanction order will not affect the offences and the entire criminal proceedings ... Accused persons are involved in serious crimes, and if accused persons are allowed to evade prosecution on the ground of technicality, there is no assurance that they will not repeat such crime," the plea said. The competent authority had recorded its subjective satisfaction earlier even as the respondent had not raised the issue of sanction on merits, the plea said. Further, the Home Secretary had explained the delay in granting sanction in a representation, while there was no guarantee from the accused to not indulge in similar offences in the future. .The High Court judgement came on a revision petition moved by one Roopesh, who was charged under Sections 143, 147, 148, 124A read with 149 of the IPC and Sections 20 & 38 of the UAPA. The revision petitioner was alleged to be a member of the Communist Party of India (Maoist), a proscribed organisation under the UAPA.The petitioner first approached the special court seeking discharge owing to the 6 months it took for the sanction order to be issued but the Special Court rejected the application prompting the revision petition before the High Court.While the petitioner had contended before the High Court that the time for sanctioning stipulated under UAPA is mandatory, the State government had contended that only sanction is mandated and a delay in the same does not vitiate the case against him.Further, the government had argued that even if UAPA charges are removed, the offence under 124A IPC would stand.