The Supreme Court has recently sought the response of the State of Maharashtra in a Special Leave Petition filed by Sameer Kulkarni, one of the accused in the 2008 Malegaon bomb blast case challenging the trial in the Special National Investigation Agency Court, Mumbai, asserting that it lacks the valid sanction granted by the competent authority in accordance with Section 45 of the Unlawful Activities (Prevention) Act.

The Bench of Justice A.S. Bopanna and Justice Pamidighantam Sri Narasimha, after considering the plea raised by Petitioner challenging the competence of the NIA Court to conduct the trial and also that without a valid sanction under Section 45(2) of the UAPA issued notice in the matter. The Court ordered, "Issue notice to the respondent(s), returnable in three weeks. In the meanwhile, Mr. C. George Thomas, learned Advocate-on Record (for intervening applicant) accepts notice on behalf of the applicant. Hence, there is no need to issue formal notice to the applicant. List the matter after four weeks. Counter affidavit, if any, be filed in the meantime."

Senior Advocate Shyam Divan along with Advocates Hari Shankar Jain, Vishnu Shankar Jain, Parth Yadav and Mani Munjal appeared for the Petitioner.

Background: In September 2008, on the evening of September 29, 2008, a bomb, planted on a motorcycle, exploded in the city of Malegaon, Maharashtra opposite a religious shrine. This tragic incident resulted in the loss of six lives and caused injuries to 101 people. Sameer Sharad Kulkrani, the Petitioner and one of the accused in the bomb blast was arrested for allegedly committing offences under Sections16 and 18 of the UAPA and under Section 120B read with Sections 302, 307, 324, 326, 427, 153A of the Indian Penal Code and under Sections 3, 4, 5 and 6 of the Explosive Substance Act, 1908.

The SLP filed before the Apex Court challenges the order issued by the Bombay High Court, which had dismissed the appeal filed by the petitioner concerning the competence of the court to conduct the trial. Additionally, the High Court had also rejected the challenge against the absence of a valid sanction granted under the UAPA.

The petitioner in the SLP submits that the entire exercise is being done in futility and that such a proceeding is null and void and without jurisdiction. The Petitioner states that in the absence of the sanction as per law he is being harassed and his rights under Article 21 of the Constitution are being infringed.

The SLP highlights that on April 1, 2011, the Central Government entrusted the investigation to the NIA. However, the NIA filed the chargesheet without obtaining the required sanction from the Central Government as mandated by Section 45(2) of the UAPA. Additionally, it points out that the trial is not being conducted by a Court established by the Central Government under Section 11 of the NIA Act, but rather, it is being tried by a Court established by the State Government under Section 22 of the NIA Act.

"In the absence of sanction to prosecute, accorded by the competent authority under UAPA, the Petitioner cannot be tried for the charges levelled against him and therefore the courts below have committed an error apparent on the face of the record and failed to exercise jurisdiction vested in them by law", reads the SLP.

The SLP further submits that the Government of Maharashtra, through a notification dated May 26, 2010, appointed the 'Independent Authority' as mandated by Section 45(2) of the UAPA while surprisingly the Additional Chief Secretary, Home Department of Maharashtra had already granted the sanction on January 17, 2009, to prosecute. Petitioner states that consequently, it becomes evident that on January 17, 2009, there was no authority in place to submit a report to the sanctioning authority, which is a prerequisite for granting sanction. Therefore, the sanction granted in January lacks jurisdiction and cannot be legally enforced.

The SLP relies on the principle enunciated in the case of Nazir Ahmad v. King Emperor; AIR 1936 PC 253 where it was held that "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all".

It has also been submitted that further the Central Government on the premise that the offences in question are connected with the security of the state should be investigated by the NIA and consequently directed the NIA to take up the investigation of the cases. Relying on the said decisions the Petitioner in the SLP submits that it is hence necessary that the trial be conducted by a Special Court established by the Central Government under Section 13 of the NIA Act and the case be prosecuted by a public prosecutor appointed by Central Government under Section 15 of the said act.

Consequently, the petitioner seeks an ex-parte stay on the proceedings of the Special NIA Case and is seeking a directive for the Trial Court to first decide the matter of granting a valid sanction to prosecute, as required by Section 45(2) of the UAPA, before continuing with the trial currently pending before the Special Court.

The Court has ordered the matter to be listed after 4 weeks.

Cause Title: Sameer Sharad Kulkarni v. the State of Maharashtra [Special Leave to Appeal (Crl.) No(s). 11824/2023]

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