Reyaz Moarif @ Bablu vs The Union of India through Ministry of Home Affairs
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1419 of 2025
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
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1. Reyaz Moarif @ Bablu S/o Md Islam @ Md. Islamuddin Ansari R/o
Village- Kuawan, P.S.- Chakiya, Dist- East Champaran, Bihar.
2. Md. Tanweer @Tanweer Barkati S/o Md. Abdullah R/at Village -
Bahadurpur, P.S. Mehsi, Dist- East Champaran, Bihar.
3. Md. Aabid @ Md. Abid S/o Md Rustam R/o Village- Bahadurpur, P.S.-
Mehsi, Dist- East Champaran, Bihar.
4. Irshad @ Md. Belal S/o Md Shahid R/o Village- Harpur Kishuni, Bara
Chakia, Ward no 10, P.S. Chakia, Dist- East Champaran, Bihar.
... ... Appellants
Versus
1. The Union of India through Ministry of Home Affairs.
2. The National Investigation Agency (NIA), through its Director General.
3. The Director General, (NIA), CGO Complex, Lodi Road, New Delhi.
... ... Respondents
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Appearance :
For the Appellants : Md. Thahir, Advocate
Mr. Navneet Prabhakar, Advocate
Mr. Kundan Kumar Ojha, Advocate
Ms. Sadhna Paragher, Advocate
Ms. Megha Singh, Advocate
For the NIA : Dr. K.N. Singh, A.S.G
Mr. Manoj Kumar Singh, SPL. PP. NIA
Mr. Ankit Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 14-07-2026
This appeal has been preferred for setting aside the order
dated 23.08.2025 passed by the learned Special Court (NIA
Cases), Patna in Special Case No. 07/2022 (hereinafter referred to
as the impugned order) whereby and whereunder the application
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filed by the appellants under Section 45 of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as the ‘ UAPA,
1967’) challenging the validity of sanction has been rejected by the
learned Special Judge and the court has been pleased to impose a
cost of Rs. 10,000/- on the appellants.
2. It appears on perusal of the records that these
appellants are facing trial in Special Case No. 07/2022. They are
accused nos. 4, 28, 29 and 30. They have been charged under
Sections 17, 18 and 18A of the UAPA, 1967. The case arises out of
R.C. No. 31 of 2022 originally registered with the Phulwarisharif
P.S. in Crime No. 827 of 2022. In the present case, this Court is
not required to go into the allegations against the appellants,
therefore, for the brevity, this Court would not go into the charges
against the appellants.
3. The bone of contention in the present case is the order
of the learned Special Judge, NIA rejecting the application of the
appellants to take up the challenge to the sanction order. In this
connection, the learned court has taken a view that the appellants
have intentionally chosen to file the petition under Section 45 of
the UAPA, 1967 during the ongoing trial to prolong the conclusion
of trial. The court found that the appellants had not raised this
issue at the earliest available two stages i.e. at the stage of the
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cognizance and the framing of charge. The learned court has taken
a view that the appellants ought to have waited till the conclusion
of the trial before filing the petition.
4. Learned counsel for the appellants submits that the
Central Government, vide sanction order dated 01.08.2023 in
respect of appellant nos. 2 to 4 and vide order dated 14.03.2024 in
respect of appellant no. 1, has granted sanction under Section 45 of
the UAPA, 1967 read with Section 196 Code of Criminal
Procedure (in short ‘CrPC’) on the basis of NIA’s recommendation
but according to him, this sanction order has been issued in a
completely mechanical manner, based only on the agency’s report.
Learned counsel has relied upon the judgment of the Hon’ble
Supreme Court in case of Fuleshwar Gope Vs. Union of India
and Others reported in 2024 SCC Online SC 2610 and submitted
that the validity of the sanction may be tested at the threshold. It is
submitted that as on today, seventeen witnesses have been
examined, six separate chargesheets were filed and all the
chargesheeted accused are being tried in the same and one trial,
there are altogether 423 witnesses as per the chargesheets.
5. Learned counsel submits that in such circumstance,
learned trial court could have well appreciated the fact that
examination of the large number of witnesses would take several
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years and the challenge to the sanction order at the stage of trial
may be considered at the earliest opportunity.
6. It is submitted that in the case of Fuleshwar Gope
(supra), the Hon’ble Supreme Court has been pleased to hold the
right of an accused to avail all remedies available to him under
law, in ordinary circumstances challenge to sanction under UAPA
should be raised at the earliest possible opportunity so as to enable
the Trial Court to determine the question, for its competence to
proceed further and the basis on which any other proceeding on
the appellate side would depend on the answer to this question.
The Hon’ble Supreme Court having considered that in the said
case out of 125, 113 witnesses had already been examined,
refrained from returning any finding on the challenge to the
validity of the sanction qua the appellants and left it to be raised
before the learned trial court who was directed to decide it
promptly.
7. Learned counsel has further relied upon a Division
Bench judgment of the Hon’ble Karnataka High Court in the case
of National Investigation Agency, Bengaluru Vs. Fairoz Pasha
and Others reported in 2025 SCC OnLine Kar 4023. Referring
to paragraph ‘19’ of the said judgment, learned counsel has
contended that the Hon’ble Division Bench of Karnataka High
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Court has held that after the charges are framed, the Court can
summon the sanctioning authority and examine the validity of
sanction order. If the sanction order is found to be invalid, there is
no need to hold further trial, and the accused can be discharged
even at that stage. The Hon’ble High Court has further made it
clear that the observations of the Court is made with a rider that
the prosecution can obtain fresh sanction in that eventuality.
8. Learned ASG assisted by Mr. Manoj Kumar, learned
Standing Counsel for the NIA has opposed the appeal. However,
having gone through the judgment of the Hon’ble Supreme Court
in the case of Fuleshwar Gope (supra) and that of the judgment of
the Hon’ble Karnataka High Court in the case of Fairoz Pasha
(supra), learned ASG submits that the observations of the learned
trial court that the appellants ought to have waited till the
conclusion of the trial before filing the petition may not hold good,
therefore, that part of the order may be set aside and the trial court
may be directed to consider the application afresh in accordance
with law.
9. Having heard learned counsel for the appellants and
learned ASG for the NIA as also on perusal of the records, this
Court finds that these appellants are facing trial in Special Case
No. 07 of 2022. There is no denial of the assertions made by the
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learned counsel for the appellants that the huge number of
prosecution witnesses are to be examined in this case and out of
them only seventeen witnesses have been examined. The
appellants have filed an application under Section 45 of the UAPA,
1967. Section 45 reads as under :-
“45. Cognizance of offences.
1
[(1)] No Court shall take cognizance of any
offence--
(i) under Chapter III without the previous
sanction of the Central Government or any
officer authorised by the Central Government in
this behalf;
(ii) under Chapters IV and VI without the
previous sanction of the Central Government or,
as the case may be, the State Government, and
2
[if] such offence is committed against the
Government of a foreign country without the
previous sanction of the Central Government.
3
[(2) Sanction for prosecution under sub-section
(1) shall be given within such time as may be
prescribed only after considering the report of
such authority appointed by the Central
Government or, as the case may be, the State
Government which 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.]”
1. S. 45 renumbered as sub-S. (1) thereof by Act 35 of 2008, S.13 (w.e.f 31-12-2008).
2. Substituted by Act 28 of 2019, S.9, for “where”(w.e.f. 14-8-2019).
3. Inserted by Act 35 of 2008, S.13 (w.e.f 31-12-2008).
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10. It is evident that Section 45(1) bars taking of
cognizance of any offense under Chapter III, Chapter IV and
Chapter VI without previous sanction of the Central Government
or the State Government, as the case may be. In this case, the order
taking cognizance is not under challenge and that stage is over.
The appellants did not challenge the sanction order at the stage of
cognizance or at the stage of framing of charge. The challenge is
being made at the stage of trial. Sub-section (2) of Section 45 talks
of grant of sanction for prosecution after considering the report of
such authority appointed by the Central Government or, as the case
may be, the State Government which shall make an independent
review of the evidence gathered in 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. It is the contention of the appellants that the sanction
order has been issued in mechanical way without considering the
case diary, the original statements of eye witnesses and other
exculpatory evidence.
11. This Court would not examine this issue on merit in
the present appeal, however, keeping in view the judgments of the
Hon’ble Supreme Court and that of the Hon’ble Karnataka High
Court and the stand taken by the learned ASG, this Court is of the
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considered opinion that the learned trial court ought to have
examined the challenge to the sanction order at the earliest
opportunity as soon as it has been raised by the appellants. In this
regard, the relevant paragraph ‘18’ from the judgment of Hon’ble
Supreme Court in the case of Fuleshwar Gope (supra) is being
quoted hereunder for a ready reference:-
“ 18. The UAPA does not provide for any such saving
of the sanction. This implies that, in the wisdom of
the legislature, the inbuilt mechanism of the Act of
having two authorities apply their mind to the grant of
a sanction, is sufficient. This emphasizes the role and
sanctity of the operation to be carried out by both
these authorities. In order to challenge the grant of
sanction as invalid, the grounds that can be urged are
that (1) all the relevant material was not placed before
the authority; (2) the authority has not applied its
mind to the said material; and (3) insufficiency of
material. This list is only illustrative and not
exhaustive. The common thread that runs through the
three grounds of challenge above is that the party
putting forward this challenge has to lead evidence to
such effect. That, needless to say, can only be done
before the Trial Court. In that view of the matter, we
have no hesitation in holding that while we recognise
the treasured right of an accused to avail all remedies
available to him under law, in ordinary circumstances
challenge to sanction under UAPA should be raised at
the earliest possible opportunity so as to enable the
Trial Court to determine the question, for its
competence to proceed further and the basis on which
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any other proceeding on the appellate side would
depend on the answer to this question.
In the attending facts and circumstances of the present
case, keeping in view the submission made at the bar
that the trial is underway and numerous witnesses
(113 out of 125) already stand examined, we refrain
from returning any finding on the challenge to the
validity of the sanction qua the present appellant and
leave it to be raised before the Trial Judge, who shall,
if such a question is raised decide, it promptly.”
In the case of Fairoz Pasha (supra), the Hon’ble Karnataka
High Court has held in paragraph ‘19’ as follows:-
“19. Another point raised by Sri. C.V. Nagesh is to be
answered now. His argument is that the accused has to
wait till the sanctioning authority is summoned, which
is usually after other material witnesses are examined.
To this answer is that, the practice has been to
summon the sanctioning authority after other material
witnesses, other than investigating officer, are
examined. There is no mandate that the witnesses are
to be examined in a particular order, but the
investigators will be examined at the end. This
procedure is adopted to duly prove contradictions if
any, through the investigating officer as contemplated
under Section 162 of Cr. P.C. So far as sanctioning
authority is concerned, he can be examined in the
beginning itself. If the accused is so sure that sanction
order is invalid and for this reason there is no need to
examine all the witnesses, he can request the court to
examine the sanctioning authority in the beginning
itself. After the charges are framed, the court can
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summon the sanctioning authority and examine the
validity of sanction order. If the sanction is found to
be invalid, there is no need to hold further trial, and
the accused can be discharged even at that stage. This
observation is of course made with a rider that the
prosecution can obtain fresh sanction in that
eventuality.”
12. Having regard to the discussions made here-in-
above, keeping in view the judgments relied upon and referred by
this Court here-in-above and the stand of the learned ASG, this
Court sets aside the impugned judgment/order passed by the
learned Special Judge NIA and directs the learned Special Judge to
consider the application of the appellants as contained in
Annexure- ‘4’ afresh and pass a reasoned order thereon within a
period of two months from the date of receipt/production of a copy
of this judgment.
13. This appeal is allowed to the extent indicated
hereinabove.
(Rajeev Ranjan Prasad, J)
(Sunil Dutta Mishra, J)
SUSHMA2/-
barkha/-
AFR/NAFR
CAV DATE
Uploading Date 17.07.2026
Transmission Date 17.07.2026