- 1 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 22006 OF 2025 (GM-RES) BETWEEN: 1. MOHAMMED IRFAN @ IRFAN S/O MOHAMMED SHAFI, AGED ABOUT 39 YEARS, R/AT NO.124, 5TH CROSS, BHUVANESHWARI NAGARA, SHAMPURA MAIN ROAD, BENGALURU - 560 045. 2. AKBAR BASHA S/O ANWAR BASHA, AGED ABOUT 32 YEARS, R/AT, 27/1, 3RD CROSS, 1ST MAIN, GANDHI NAGAR, BENGALURU-560045. 3. SYED SIDDIQ AKBAR S/O SYED UBEDULLA AGED ABOUT 36 YEARS, R/AT, NO.9-C, 2ND CROSS, SAINT THOMAS TOWN, BANGALORE-560023. 4. SANAULLA SHARIFF S/O ASMATHULLAH SHARIF, AGED ABOUT 34 YEARS, R/AT 1ST CROSS, LR BANDE, BANGALORE- 560032. Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 5. SYED AKBAR S/O SYED SUHAN, AGED ABOUT 52 YEARS, R/AT, 46, 4TH MAIN, 3RD CROSS, BHUVANESHWARI NAGAR, RT NAGAR POST, BENGALURU- 560032. 6. SADIQ UL AMIN @ SOUND SADIQ S/O ABDUL HAMEED, AGED ABOUT 45 YEARS, R/A NO.85, CHANDANI CHOWK, SHIVAJI NAGAR, BENGALURU - 560051. …PETITIONERS (BY SRI. TAHIR, ADVOCATE) AND: 1. STATE OF KARNATAKA REP BY CHIEF SECRETARY (PCAAS), KARNATAKA STATE DEPT. OF HOME, VIDHANA SOUDHA, BANGALORE -560001. 2. DIRECTOR OF PROSECUTION 6TH FLOOR, KAVERI BHAVAN, KHV COMPLEX, K G ROAD, BANGALORE -560002. 3. ASSISTANT POLICE COMMISSIONER CHIKPET SUB-DIVISION, BANGALORE CITY POLICE, CHIKPET, BANGALORE - 560 053. …RESPONDENTS (BY SMT. RASHMI JADHAV, ADDL. SPP FOR R1 TO 3) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, READ WITH SECTION 482 OF CR.P.C. PRAYING TO QUASH THE IMPUGNED SANCTION AT - 3 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 ANNEXURE-A I.E. SANCTION BEARING NO HD 128 AMHB 2024 BANGALORE GRANTED BY THE RESPONDENT NO. 1 IN THE CRIME NO 214/2019 WAS REGISTERED BY THE KALASIPALYA PS, U/S 143, 147, 148, 307 R/W 149 OF IPC REGISTERED BY THE KALASIPALYA PS, NOW PENDING IN THE FILES HON'BLE XLIX ADDL. CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) AT BANGALORE AS SPL C NO. 728/2025 UNDER SECTION U/S 120B, 114, 201, 143, 147, 341, 307 R/W 149 OF IPC, SECTION 25(1-B)(B) OF ARMS ACT AND SECTION 16 AND 18 OF UA(P)A, WHEREIN THE PETITIONERS ARRAYED AS ACCUSED NO 1 TO 6. THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER The captioned petition is filed by the accused persons challenging the authority of the respondent No.2/Director of Prosecution in according sanction to proceed against the present petitioners under the provisions of the Unlawful Activities (Prevention) Act, 1967 (for short 'the UAPA, 1967'). 2. The facts leading to the case are as under: A crime came to be registered against the present petitioners in Crime No.214/2019 for the offences punishable under Sections 143, 147, 148, and 307 read - 4 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 with Section 149 of the IPC. In connection with the said crime, accused No.7 was also arrested. Pursuant thereto, the Director General of Police and Inspector General of Police forwarded a communication bearing No.KA MA TTU SU (6) 140/2024-25 dated 17.08.2024 seeking sanction for prosecution. Based on the said request, respondent No.2, in exercise of powers under Section 45(2) of the UAPA, 1967, issued a sanction order dated 19.10.2024 bearing No.HD 128 AMHB 2024, Bangalore, permitting prosecution of the accused. Acting on the said sanction, the learned Special Court has taken cognizance and registered the case as Special Case No.728/2025. 3. The challenge in the present writ petition is not premised on the ground of insufficiency of materials placed before the sanctioning authority. The specific challenge raised by the petitioners is with regard to the competence and locus of respondent No.2 to grant sanction under Section 45(2) of the UAPA, 1967. It is contended that the order impugned is contrary to the letter and spirit of - 5 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 Section 45(2) of the Act and is also violative of the mandate of the Hon’ble Supreme Court. The petitioners have further urged that while granting the sanction, the mandatory requirements of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, have not been complied with. 4. Learned counsel appearing for the petitioners, reiterating the grounds urged in the petition, vehemently argued that the Director of Prosecution, who has accorded the sanction, functions under the administrative control of the State Government and therefore cannot be regarded as an “independent authority” within the meaning of Section 45(2) of the UAPA, 1967. Referring to the objects and reasons of the amending provisions and to the Parliamentary debates, it is contended that the intention of the legislature was to ensure that the authority granting sanction is independent of the executive influence of the State. Therefore, the respondent No.2, being a wing of the - 6 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 State, does not satisfy the statutory mandate of independence envisaged under Section 45(2). 5. Per contra, the learned Additional Special Public Prosecutor, placing reliance on a Division Bench judgment in Peer Mohideen @ Peer and Others vs. State by Vyali Kaval Police and Another (W.P.No.14071/2021), would contend that the grounds raised by the petitioners cannot be gone into in writ proceedings. She would point out that the Division Bench has categorically held that questions relating to (i) the competence or locus of the authority, (ii) whether the authority has conducted an independent review, and (iii) whether there was proper application of mind by the sanctioning authority while granting sanction, are all matters which require appreciation of evidence, and therefore, are to be raised and considered during trial. She further submitted that under the scheme of law, the proper remedy available to the petitioners was to file an appeal under Section 21 of - 7 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 the National Investigation Agency Act, 2008, and therefore, the present petition is not maintainable. 6. Having heard the rival submissions of the learned counsel appearing on both sides, the following point arises for consideration: "Whether the appointment of Director of Prosecution as a sanctioning authority for the offences covered under the Unlawful Activities (Prevention) Act, 1967 can be assailed in a 482 petition?" 7. Before this Court delves into the matter, this Court deems it fit to take cognizance of para 18 and 19 of the Division Bench order. "18. Section 45 of UAPA has two distinct facets, which govern the sanction for prosecution in terrorism related cases. These facets ensure that the prosecution under the Under UAPA is not arbitrary and follows due process. Section 45 (2) of UAPA, before granting sanction for prosecution, the Government receives a report from an independent authority who is appointed by the State or Central, as the case may be, and this independent review ensures that there is prima facie - 8 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 evidence against the accused before formal prosecution begins, thus, these two facets emphasize as a procedural safeguard to prevent arbitrary prosecution under the UAPA. 19. For the reasons stated and in light of the decision of the Apex Court in Fuleshwar Gope's case, it would not hold this Court for long to arrive at a conclusion that the 'Authority' so appointed was a competent authority, or whether the Authority has made an independent review as well as applied its mind, or whether there was application of mind by the sanctioning authority while sanctioning, are the questions that have to be determined by way of evidence and as such, should be raised at the stage of trial so as to ensure that there is no undue delay in reaching their logical and lawful conclusion. It is also to be stated here that if the challenge is to the appointment of the 'authority' by the State Government or the Central Government as the case may be, it has to be raised at the earliest instance and not belatedly. If the initial appointment of the 'authority' is not challenged at the earliest point of time, it does not preclude the same being challenged at a stage of trial before the Trial Court, but when a challenge is made belatedly before the Appellate Court, the Court should refrain from entertaining it, and liberty to raise the issue at the stage of trial may be given. The challenge to appointing of the `authority' and the sanction order is made by the petitioners when the trial is underway and numerous witnesses have been examined (upto - 9 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 113), challenge made is belatedly and thus, we refrain from entertaining these writ petitions, holding that the petitioners have failed to challenge at the earliest possible opportunity and thus, it is open for the petitioners to raise the issue during trial and if it is raised the trial Court shall promptly consider that issue. Point Nos.i and ii are answered thus. (Emphasis Supplied by me) 8. The extracted paragraphs of the Division Bench judgment, noticed supra, would not detain this Court for long. The Division Bench, while placing reliance on the authoritative pronouncement of the Hon’ble Apex Court in Fuleshwar Gope vs. Union of India and Others1, has categorically held that Section 45 of the UAPA incorporates a two-fold safeguard, first, that the sanction for prosecution is preceded by a report of an independent authority, and second, that such review ensures the existence of prima facie material before prosecution is launched. The Division Bench has further clarified that the issue relating to the locus and competence of the authority 1 2024 SCC Online SC 2610 - 10 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 so appointed, as well as the question whether such authority has in fact undertaken an independent review and applied its mind, are all matters which can only be adjudicated upon by the Court seized of the trial, on the basis of evidence adduced therein. It has been expressly observed that a belated challenge, especially after commencement of trial and examination of several witnesses, ought not to be entertained at the writ stage or in collateral proceedings, and that the proper course for the accused is to raise such objection before the Trial Court, which is under an obligation to consider the same promptly. Thus, the binding ratio of the Division Bench is that the validity of the appointment of the “authority” under Section 45(2) of the UAPA, as well as the due application of mind by such authority or by the sanctioning authority, are issues integrally connected with the trial and not matters that can be tested in a petition under Section 482 of Cr.P.C. - 11 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 9. Be that as it may, Section 482 of the Code of Criminal Procedure confers inherent jurisdiction on the constitutional courts to pass such orders as may be necessary (i) to give effect to any order under the Code, (ii) to prevent abuse of the process of any Court, and (iii) otherwise to secure the ends of justice. Though wide in scope, this jurisdiction is extraordinary in character and must be exercised sparingly, cautiously and only when the conditions expressly contemplated by the section are satisfied. The inherent power is supplemental to the statutory scheme and is not intended to be used as a substitute for statutory remedies, appellate procedures or for re-appraising disputed questions of fact which are more appropriately decided at trial. In short, Section 482 is to be invoked only where there is a manifest failure of justice, a clear abuse of the court’s process or a necessity to give effect to the Code not as a tool for routine review of executive or administrative action. - 12 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 10. The State Government has, by notification, designated the Director of Prosecution as the competent authority under Section 45(2) of the Unlawful Activities (Prevention) Act, 1967. Such a notification presupposes that the designated authority is empowered to perform the statutory function of considering and granting sanction for prosecution. However, the inherent jurisdiction under Section 482 of the Cr.P.C. is not, as a rule, the appropriate forum to challenge the vires of an executive or administrative notification. Questions relating to the legality, vires or validity of notifications and other administrative acts are ordinarily amenable to writ jurisdiction before this Court and not to be ventilated by way of the criminal court’s inherent power. 11. In view of the foregoing, the petition under Section 482 insofar as it seeks to impugn the notification appointing respondent No.2 as the sanctioning authority is misconceived and not maintainable; the correctness or validity of the State’s notification is a matter for - 13 - HC-KAR NC: 2025:KHC:34489 WP No. 22006 of 2025 appropriate writ proceedings and cannot be examined or invalidated in a 482 petition. 12. Petition is devoid of merits and accordingly, stands dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA List No.: 1 Sl No.: 4