Where’s the sanction to prosecute Kobad Ghandy? asks court

A district court today called the Delhi Police’s bluff by refusing to charge Kobad Ghandy under the stringent Unlawful Activities Prevention Act (UAPA). Ghandy was accused of trying to set up a base of the banned CPI (Maoist) in the Capital.

Turns out, the Delhi Police did not get the appropriate sanction from the central government to prosecute Ghandy under the UAPA.

In his 68-page order the judge makes some strong observations on how procedure to accord sanction was ignored by the Special Cell of the Delhi Police.

“There is no scintilla of evidence to show that the evidence collected by the investigating officer were independently reviewed by any authority appointed by the central government…or that after review of collected evidence, such authority had ever made any recommendation to the central government.”

Underlining the significance of an independent review to prevent the misuse of the stringent provisions of the UAPA by law enforcing agencies, the judge in his order states, “Unfortunately, there is no infinitesimal material on record to show prima facie that the recommendation of any authority who independently reviewed the evidence collected by the investigating authority was ever brought in the notice of the Lt. Governor at the time of obtaining sanction…In other words, the competent authority, Lt. Governor of National Capital Territory of Delhi in the present case, was deprived of the relevant material, i.e., recommendation of competent authority that was necessary to consider as to whether sanction should or should not be granted.”

The prosecution’s last minute efforts to bring the necessary central government sanction by filing a supplementary chargesheet on 23 March didn’t wash with the additional sessions judge Pawan Kumar Jain.

“After filing the fresh sanction dated 23 March, 2012 the Senior Public Prosecutor energetically contended that now there is no defect in the sanction…Mere fact that the prosecution has filed fresh sanction order at this belated stage is not sufficient to make the cognizance order valid,” said the judge in his order.

And so while “there is sufficient material on record to make out a prima-facie case for the offences punishable under Section 20 & 38 of UAPA against Kobad Ghandy,” the judge’s order states, the cognizance order (dated 19 February, 2010) was not in accordance with the mandatory provisions of the UAPA.

Ghandy was charged by the court under various sections of the Indian Penal Code (IPC) relating to cheating, forgery, impersonation, and criminal conspiracy. The specific charges against framed by the court are sections 419/420/468/474/120 B of the IPC.