Dr. A.K.Jayasankaran Nambiar, J.

1. As all these three cases involve a common issue, they are taken up together for consideration and disposed by this common order.

2. Crl.R.P.No.293 of 2023 is preferred against an order dated 21.03.2023 in S.C.No.343 of 2017 of the Additional Special Sessions Judge (SPE/CBI)–III), Ernakulam. By the said order, an application for discharge preferred by the petitioners under Section 227 of the Code of Criminal Procedure [hereinafter referred to as the “Cr.P.C”] was dismissed by the trial court. Crl.M.C.Nos.3117 and 3238 of 2023 impugn a common order dated 09.03.2023 in Crl.M.P.Nos.2978 and 2979 of 2022 in S.C.No.343 of 2017 before the Additional Special Sessions Judge (SPE/CBI)–III, Ernakulam. By the common order aforesaid, applications preferred by the petitioners under Section 91 of the Cr.P.C seeking production of files in connection with the sanction granted for prosecuting them for offences under the Unlawful Activities (Prevention) Act [hereinafter referred to as the “UAPA”] stood rejected by the trial court.

3. The brief facts necessary for disposal of these cases are as follows:

                  The petitioners are accused nos.1 to 25 in S.C.No.343 of 2017 on the file of the Additional Special Sessions Judge (SPE/CBI)–III, Ernakulam. They are charged for the offences under Sections 120B read with Sections 143, 147, 148, 149 read with Sections 302, 201, 202, 212, 324 and 307 of the Indian Penal Code [IPC] and Section 16(a) read with 15(1)(a)(i) and Section 19 of the UAPA, Sections 3 and 5 of Explosive Substances Act and Section 27 of the Arms Act, 1959. The case of the prosecution was that on 01.09.2014, one Elamthottathil Manoj was murdered and another person, namely, Pramod was seriously injured in an attack allegedly committed by the petitioners. Crime No.780 of 2014 was registered by the Kadirur Police Station alleging commission of offence under Sections 143, 147, 148, 324, 307, 302 read with Section 149 of IPC; under Sections 3 and 5 of the Explosives Substances Act and also under Section 13(1)(a) of the UAPA. Subsequently, a report was filed deleting Section 13(1)(a) of UAPA and adding Section 16(1)(a) of UAPA. The investigation in the matter was initially transferred from the local police to the Crime Branch on the same day as the incident and later the matter was transferred to the Central Bureau of Investigation [CBI] which re-registered the crime as R.C.No.10(S)/2014- CBI/SCB/TVPM on 28.10.2014. After completing the investigation, a final report under Section 173(2) of Cr.P.C. was filed against revision petitioners/accused nos.1 to 19 on 06.03.2015 before the Sessions Court, Thalassery. The final report cited 202 witnesses, 64 documents and identified 53 material objects. The final report also stated that the investigation will be continued to identify and apprehend the remaining accused. The learned Sessions Judge, Thalassery took cognizance of the offence under Section 120B read with Sections 143, 147, 148, 201, 202, 212, 324, 307, 302, 149 IPC; Sections 3 and 5 of the Explosive Substances Act, Section 16(a) read with Section 15(1)(a)(i) and Section 19 of UAPA and Section 27 of Arms Act. The case was numbered as S.C.No.200 of 2015 before the Sessions Court Thalassery. The CBI thereafter filed a supplementary final report on 29.08.2017 against accused nos.20 to 25 alleging commission of offence under Section 120B read with Sections 143, 147, 148, 201, 202, 212, 324, 307, 302, 149, Section 18 read with Section 15(1)(a)(i) and 16(A) and Section 19 of UAPA, Sections 3 and 5 of the Explosive Substances Act and Section 27 of Arms Act. In the said report, the CBI cited 70 additional witnesses and produced 60 documents and one material object. In the meanwhile, as per an order dated 07.03.2017 of the Supreme Court in Crl.Appeal No.519 of 2017, the case was transferred to the Additional Special Sessions Judge (SPE/CBI)-III, Ernakulam. Accused nos.3, 11 and 12 were enlarged on bail by this court vide order dated 18.06.2015 in Crl.A.Nos.346, 347 and 383 of 2015. Accused no.18 was granted bail by the Sessions Court, Thalassery vide order dated 08.07.2015 in Crl.M.P.No.2509 of 2015 as there was no material against him. Accused no.20 was granted bail by the Sessions Court, Thalassery vide order dated 11.08.2015 in Crl.M.P.No.6261 of 2015. Accused no.21 was granted bail by this Court vide order dated 12.10.2015 in Crl.A.No.846 of 2015. Accused nos.22 to 24 were enlarged on bail by this Court by order dated 19.01.2016 in Crl.A.No.50 of 2016. Accused no.25 was granted bail by the Sessions Court, Thalassery vide order dated 23.03.2016 in CrI.M.C.No.500 of 2016. Accused nos.1, 2, 4 to 10, 13 to 17 and 19 were granted bail by this Court vide order dated 23.02.2021 in B.A.No.997 of 2019, after nearly 7 years of incarceration.

4. It is significant to note that the petitioners had earlier filed applications under Section 91 of Cr.P.C seeking the production of certain files by the Union Government to establish that the procedure required for obtaining sanction before taking cognizance of the offences under the UAPA, had not been followed by the authorities concerned. The said applications were filed at a point in time when the petitioners, being aggrieved by the orders passed by the trial court taking cognizance of the case against them under the UAPA, based on the sanction orders issued by the Central Government, had approached this Court through writ petitions - W.P.(C).No.25403 of 2017 and W.P.(C).No.31229 of 2017, seeking to quash the sanction order and challenging the cognizance taken by the trial court. There was a further prayer in those writ petitions for a declaration that the competent authority to grant sanction for prosecution of the petitioners was not the Union of India but the Government of Kerala. The writ petitions were however dismissed by a learned Single Judge by a judgment dated 15.03.2018, and the appeals preferred by the petitioners as W.A.Nos.765 and 766 of 2018 against the said judgment of the learned Single Judge was also dismissed by a Division Bench of this Court. At the time of dismissing the writ appeals, the Division Bench found as follows at paragraphs 35 to 45 of the impugned judgment:

                  “35. In our considered view, a reading of the above provisions together would make it clear that it is not the place of occurrence of the crime that matters, but what matters is the agency conducting the investigation under the control of the Central Government and admittedly, in the instant case the investigation is conducted by an agency under the control of the Central Government and the offences under Sections 15 and 16 of the UAPA is incorporated in the final report, and therefore, the sanction issued by the Central Government is a validly constituted one. It is also clear that merely because the central agency conducts an investigation into any offence within the State, it is never under the control of the state government especially due to the fact there is no enabling provision under any one the acts discussed above to do so. Which thus means the central agency conducting the investigation is always under the control of the Central Government and that power under any circumstances is not conferred on the State Government even while conducting an investigation within a state. Moreover, the UAPA, 1967 is an Act also to provide for the more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities and for matters connected therewith. The statement of objects and reasons shows that it was pursuant to the acceptance by Government of a unanimous recommendation for the Committee on National Integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963 was enacted empowering the Parliament to impose, by law, reasonable restrictions in the interest of the sovereignty and integrity of India, on (i) Freedom of speech and expression; (ii) Right to assemble peaceably and without arms; and (iii) Right to form associations or unions.

                  36. The Act was amended in 2004 and the objects and reasons thereto shows that the Central Government have been concerned with the manner in which the provisions of the Prevention of Terrorism Act, 2002 were being grossly misused in the past two years and it was felt necessary to repeal the Act. It was with the objective, the amendment Ordinance was promulgated on 21.09.2004 and the Unlawful Activities (Prevention) Amendment Bill, 2004 replaced the Ordinance, also with the objective to make further provisions with the aim of strengthening the arrangements for speedy investigation, prosecution, and trial of cases related to terrorism related offences, while, at the same time, ensuring against any possible misuse of such provisions. That apart, in our view, Section 45 makes it clear that sanction for prosecution under sub-section (1) of Section 45 would be given after considering the report of such authority appointed by the Central Government, or as the case may be, the State Government, and it 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. Therefore, it is taking note of the objects and reasons of the provisions of UAPA, such a safety measure is incorporated under Section 45, which thus means, an independent authority appointed by the Central Government, makes an independent review of the evidence gathered in the course of investigation and make a recommendation to the Central Government or the State Government as to whether a sanction is to be granted or not. Therefore, sufficient safety vault is provided to ensure that unnecessarily the provisions of Act, 1967 is not incorporated in any final report submitted by an investigating agency and therefore prima facie we will have to presume that the actions were done by the respective authorities in accordance with law until otherwise proved by the appellants.

                  37. Learned Assistant Solicitor General of India, has taken us through the sanction order to contend and canvas that an independent authority has gone through the materials of the investigation conducted and submitted a report to the Central Government and it was accordingly, sanction was issued.

                  38. We have gone through the sanction orders issued by the Government of India, Ministry of Home Affairs against the accused persons. On a perusal of the sanction order, it is evident and clear that the authority had occasion to go through the investigation conducted by the CBI and then granted sanction. The validity of the sanction order has to be looked into by the Special Court trying the case in question and definitely, the appellants are vested with sufficient liberty to question the veracity and legality of the sanction order issued by the Government of India.

                  39. Another contention advanced by the learned Senior Counsel for the appellants is relying upon the Rules 3 and 4 of Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, which read thus:

                  “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.”

                  40. Relying upon the above said rules, the specific contention advanced was that from the order of sanction, it is not clear that the time period prescribed therein was followed by the authorities concerned, as well as the Central Government. It is also pointed out that the provisions of the UAPA are affecting the rights and liberty of the individuals and due to its imperative nature, it is a mandatory requirement. Therefore, when the time period stipulated under Rules 3 and 4 of the Rules, 2008 is not reflected in the sanction order and that is a reason to think that there is no proper sanction and to hold that the sanction is bad, enabling the appellants to secure bail against the other offences alleged against them. In our view, even going by the contentions advanced by the appellants, it is clear that the issue with respect to the time period prescribed even if a mandatory requirement, is shrouded in facts, which could only be deciphered by a fact finding authority and in this case, the Special Court, wherein the final report is submitted against the appellants. Therefore, we are unable to consider the contentions advanced by the learned Senior Counsel appearing for the appellants in that regard also. (emphasis supplied).

                  41. Moreover, we have gone through the final report submitted by the CBI, wherein allegations are made against the accused persons, attributing various offences. It was also contended that there are no allegations made against accused Nos.5 to 10, 14 and 15, to make them liable for the offences under UAPA, that only with the aid of Section 149 of the IPC they are roped in, and a reference to Section 40 of the IPC makes it abundantly clear that since an offence under Section 149 of the IPC is not incorporated therein it cannot be invoked and there is no enabling provision under the UAPA to do so also unlike in other special enactments . Therefore, according to the learned Senior Counsel, the said appellants are not liable to be proceeded under the provisions of UAPA, since no allegations are forthcoming from the final report so as to rope in such persons under the provisions of UAPA.

                  42. On the other hand, learned counsel for the CBI submitted that Section 40 of the IPC takes care of Section 141 and without Section 141, Section 149 of the IPC has no role to play. Section 141 of the IPC deals with unlawful assembly. It specifies that an assembly of five or more persons is designated as “unlawful assembly”, if the common object of the persons composing that assembly is,-

                  First.- xx xxxx xxxxx

                  Second.- To resist the execution of any law, or of any legal process; or

                  Third.- To commit any mischief or criminal trespass, or other offence; or

                  Fourth.- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

                  Fifth.- xx xxx xxxx.

                  43. Section 149 of the IPC dealing with unlawful assembly and guilty of offence committed in prosecution of common object, stipulates that if an offence is committed by any member of an unlawful assembly, in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

                  44. We find force in the above said contention advanced by the learned counsel for the CBI and are of the opinion that since Section 141 of the IPC is incorporated in Section 40 of IPC, without Section 141 of the IPC, there can be no unlawful assembly and the guilt of the offence under Section 149. Moreover, Section 15 of the UAPA under Chapter IV dealing with punishment for terrorist activities comprehends various manifestations in the Terrorist act, which reads thus:

                  “15. Terrorist Act.—

                  (1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--

                  (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--

                  (i) death of, or injuries to, any person or persons; or

                  (ii) loss of, or damage to, or destruction of, property; or

                  (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or xx xx xxx xxxx”

                  45. Therefore, on a reading of the said provision also, it is clear that it is not only that act contemplated under Section 15(1) alone, which enables an investigating agency to attribute the offences under the UAPA against the persons who are in the assembly. Anyhow, we are not finally concluding anything on those aspects, since if we traverse too much through the same, it is likely to affect the defense of the appellants at the trial stage in that regard. But we only intended to say that merely because Section 149 of the IPC is not incorporated under Section 40 of the IPC, that will not disable the investigating agency to rope in other persons who were in the assembly under the UAPA, and we are constrained to say so, so as to arrive at conclusions to meet up with the points raised in the appeals and canvassed at the time of hearing.”

                  Thereafter, the Division Bench concluded as follows:

                  “In the light of the discussion made above, we do not find any jurisdictional error or legal infirmity on the part of the learned single Judge, in exercising the powers conferred under Article 226 of the Constitution of India. Therefore, upshot of the above discussion is that the appeals are liable to be dismissed and accordingly, we do so. However, we make it clear that the trial court shall not be influenced by the findings and observations made in the judgments rendered by the learned single Judge, and us, as above, in considering any issues at any stage of the proceedings, in accordance with law.” (emphasis supplied).

5. It was presumably by acting on the liberty reserved by the Division Bench as above, that the petitioners deemed it apposite to file fresh applications under Section 91 of the Cr.P.C. before the trial court seeking the production of documents to substantiate their contention that sanction for prosecution had not been properly obtained by the Union Government for offences under the UAPA. This was more so because the applications under Section 91 of the Cr.P.C. filed by them earlier, during the pendency of the writ petitions referred above, were dismissed by the trial court based on the judgment of the learned Single Judge in the writ petitions. At any rate, the trial court took note of the earlier proceedings before this Court and proceeded to dismiss even the subsequent applications preferred by the petitioners under Section 91 of the Cr.P.C. by holding that the validity of the sanction order could only be considered at the time of trial of the criminal proceedings initiated against the petitioners, and that the same could not be considered at the time of disposing the discharge applications. It is impugning the said common order of the trial court dismissing the subsequent applications under Section 91 of the Cr.P.C. that the petitioners are before us through Crl.M.C.Nos.3117 and 3238 of 2023.

6. As a matter of fact, Crl.R.P.No.293 of 2023 that was preferred challenging the order of the trial court dismissing the application for discharge preferred by the petitioners under Section 227 of the Cr.P.C. had come up for hearing before us as a matter to be considered by a Division Bench of this Court. It was at that time that a mention was made of the pendency of the Crl.M.Cs referred above before a learned Single Judge of this Court. On noticing that the issues involved in the Crl.R.P. and the Crl.M.Cs were connected, we deemed it appropriate to call for the Crl.MCs also before this Bench to be heard along with the Crl.R.P. After obtaining the orders of the Hon'ble the Chief Justice, the Crl.M.Cs were also tagged along with the Crl.R.P.

7. We have heard Sri.D.Arun Bose and Sri.K.Viswan, the learned counsel for the petitioners and Sri.K.P.Satheesan, the learned senior counsel for the respondent CBI. We have also heard Sri.P.Sreekumar, the learned Additional Solicitor General for the Union of India.

8. We might emphasis herein that the sole reason for us to tag the Crl.M.Cs along with the Crl.R.P. was the submission made on behalf of the petitioners in the Crl.R.P. that their grievance against the order of dismissal of the discharge applications that was impugned in the Crl.R.P. was primarily on the ground that the said order had been passed without examining the validity of the sanction orders passed according sanction for prosecution of the petitioners for offences under the UAPA. Since the validity of the sanction orders was also the subject matter of challenge in the Crl.M.Cs that were preferred impugning the order of the trial court dismissing petitions filed under Section 91 of the Cr.P.C. for production of documents, it was felt that if the petitioners were to succeed in the Crl.M.Cs by pointing to any inherent defect in the sanction orders that rendered those orders a nullity in law, then the Crl.R.P. would also have to be allowed since the petitioners would have to be discharged vis-a-vis the offences under the UAPA with which they were charged. We note, however, that the Crl.M.Cs challenging the order of dismissal of the applications preferred under Section 91 of the Cr.P.C. ought not to have been entertained by this Court at first instance since the applications filed under Section 91 of the Cr.P.C. preferred by the petitioners were in the immediate aftermath of the earlier round of litigation, wherein, a Division Bench of this Court in W.A.Nos.765 and 766 of 2018 had clearly found that the aspect of validity of the sanction orders could be gone into only during the trial of the proceedings initiated against the petitioners. It is also significant that the charges against the petitioners including under the UAPA had already been framed immediately after the dismissal of the earlier round of Section 91 applications preferred by them before the trial court. In other words, the Crl.M.Cs which effectively impugn the common order of the trial court, dismissing the subsequent applications filed under Section 91 of the Cr.P.C. were not maintainable since they virtually amounted to re-agitating issues that had already been concluded through the judgment of the Division Bench of this Court in the writ appeals aforementioned.

9. Notwithstanding the above, since the Crl.M.Cs had already been admitted by this Court and were pending since 2023, and further, the contention of the petitioners was with regard to an aspect that went into the root of the matter, namely, whether, through non-adherence of the procedure contemplated under the UAPA read with the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 [2008 Rules], the sanction orders passed by the Central Government were void ab initio, we called for the files with regard to the sanction orders dated 07.04.2015 and 09.05.2016 before this Court by passing a short order dated 02.03.2026 that reads as follows:

                  “In these three cases, the only issue that needs to be considered is whether while issuing the sanction orders dated 07.04.2015 (Crl.M.C. No.3117 of 2023), and 09.05.2016 (Crl.MC No.3238 of 2023), the Central Government, which had granted the sanction for prosecution of the petitioners, inter alia, under Section 15 of the Unlawful Activities (Prevention) Act, had complied with the procedure contemplated under Section 45(2) of the Unlawful Activities (Prevention) Act read with Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008.

                  2. We find that while the sanction orders produced before us as above mentioned state that the Central Government had followed the procedure contemplated under Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, the details with regard to the committee that went through the investigation report for the purposes of recommending prosecution to the Central Government is clearly referred to only in one of the sanction orders viz. in the order dated 09.05.2016. Such details are absent in the sanction order dated 07.04.2015. We, therefore, direct the Central Government to make available the files with regard to the sanction orders passed in both the cases (sanction orders dated 07.04.2015 and 09.05.2016) before this Court by the next date of posting.

                  Post on 10.03.2026.”

10. We have since perused the files made available before us, as also the sanction orders dated 07.04.2015 and 09.05.2016, to verify whether the time limits specified under Rules 3 and 4 of the 2008 Rules had been strictly adhered to while passing the sanction orders ? We find from a perusal of the said files that while in the case of the sanction order dated 09.05.2016, there is no dispute that the time limits were adhered to as indicated in the sanction order itself, in the case of the sanction order dated 07.04.2015, the letter issued from the Nodal Ministry of the Central Government to the Advisory Committee constituted under Section 45(2) of the UAPA was on 13.03.2015. The recommendation by the Advisory Committee to the Central Government was on 25.03.2015. The sanction order by the Central Government was on 07.04.2015. The calendar for the year 2015 shows that between 13.03.2015 and 25.03.2015, there were only seven working days, namely, 16.03.2015 to 20.03.2015, 23.03.2015 and 24.03.2015.  Similarly, between 25.03.2015 and 07.04.2015, there were only eight working days, namely, 26.03.2015, 27.03.2015, 30.03.2015, 31.03.2015, 01.04.2015, 02.04.2015, 03.04.2015 and 06.04.2015.  Thus, if the reckoning of seven working days is as envisaged under the General Clauses Act by excluding the first day from the computation, the time limits envisaged under Rules 3 and 4 of the 2008 Rules appear to have been adhered to by the Central Government. Prima facie, therefore, we find no illegality with regard to adherence to time limits that would vitiate the sanction orders in the instant case. That apart, since the Division Bench of this Court had, on an earlier occasion, already clarified that any other aspect impinging upon the validity of the sanction orders had to be considered by the trial court at the time of trial of the case against the petitioners, we do not deem it necessary to interfere with the orders of the trial court impugned in the Crl.M.Cs aforementioned.

11. As far as the Crl.R.P. before us is concerned, as already noted, the fundamental premise informing the challenge to the impugned order of the trial court, that dismissed the applications for discharge under Section 227 of the Cr.P.C., is that the validity of the sanction orders have not been considered by the trial court at the time of disposing the discharge applications. In the light of our prima facie findings with regard to the adherence of the sanction orders to the time limits specified in the UAPA, read with the 2008 Rules, we do not find any reason to interfere with the impugned order of the trial court in the Crl.R.P. as well.

                  The Crl.R.P. and Crl.M.Cs are dismissed as above, without prejudice to the right of the petitioners to challenge the validity of the sanction orders at the time of trial, on all available grounds.