While removing all the curtains of doubts, uncertainty and question marks, the Delhi High Court in an extremely laudable, learned, landmark and latest judgment titled Sachin Hindurao Waze v. Union of India & Ors. in W.P.(CRL.) 88/2022 that was reserved on September 21, 2022 and then finally pronounced on October 7, 2022 has ruled that the mere fact that the authority granting sanction for prosecution under Unlawful Activities Prevention Act (UAPA) is located in the national capital, will not give the court the jurisdiction to quash the order especially when all the ingredients, events and proceedings relating to the case are taking place in another jurisdiction. It must be mentioned here that a Division Bench of Hon’ble Ms Justice Mukta Gupta and Hon’ble Mr Justice Anish Dayal made the observation while dismissing the plea that was moved by former Mumbai police officer Sachin Waze with the object of quashing of the order granting sanction to prosecute him under UAPA in the Antilla bomb scare case. We thus see that the Delhi High Court rejected the plea of Sachin Waze for lack of territorial jurisdiction.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Anish Dayal for a Division Bench of the Delhi High Court comprising of Hon’ble Ms Justice Mukta Gupta and himself sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner has filed this Writ Petition praying for striking down Section 15 (1) of the Unlawful Activities Prevention Act, 1967 (UAPA) for being ultra vires Articles 14 and 21 of the Constitution of India or read it down to save it from being rendered unconstitutional; and to quash and set aside the impugned order dated 2nd September, 2021 passed by the respondent no. 1 (Union of India through Under Secretary, CTCR Division, Ministry of Home Affairs) and grant consequential reliefs.”
As we see, the Division Bench then states in para 2 that, “A preliminary objection was raised that this Court would not have territorial jurisdiction over the subject matter of the present petition in light of relief prayed for. Accordingly, this Court on 3rd March, 2022 directed the parties to first address this Court on the following issue:
“Whether an order rendered by Central Government granting sanction under provision of Section 45 of the Unlawful Activities Prevention Act, 1967 can be assailed standalone per se and if so, where would the jurisdiction/ proceedings lie?””
Most significantly, the Division Bench while setting the record straight made it indubitably clear pointing out in para 11 that, “Pursuant to an assessment of documents on record, appreciation of submissions advanced by the parties through respective senior counsels and the learned ASG, this Court is of the considered opinion that this Court would not have territorial jurisdiction over the subject matter of the present petition for inter alia the following reasons:
(i) The relief sought in the writ petition is firstly relating to the unconstitutionality of Section 15 (1) of UAPA; and secondly to quash and set aside the impugned order dated 02nd September, 2021 passed by the Respondent No.1 according sanction for prosecution under Section 45(1) UAPA for prosecuting the accused (including the petitioners and others) in crime No. RC-01/2021/NIA/ME-I and taking cognizance of the said offence by the Court of competent jurisdiction. However, this determination is restricted to the threshold issue of territorial jurisdiction of this Court as encapsulated in the order of 3rd March 2020 (extracted above in para 2).
(ii) A perusal of the FIR No.35/2021 dated 25th February, 2021 registered at PS Gam Devi for offences punishable under Section 286/465/473/506 (2)/120 B IPC and Section 4 (A)(B)(i) of the Indian Explosives Substance Act, 1908 would categorically indicate that all events forming the basis of the FIR had occurred in Mumbai e.g. seizure of the vehicle Mahindra Scorpio bearing registration No. MH-01-DK-9945, discovery of the explosives in the sack found in the vehicle and discovery that the registration of the number plate was in the name of an employee of Reliance Company. The NIA, vide RC-01/2021/NIA/Mumbai based on the said FIR, registered the case in Mumbai for further investigation. A further FIR No.12/2021 was registered on 7th March, 2021 for offences punishable under Sections 302/201/34/120B IPC for the murder of Mr. Mansukh Hiren in Mumbai. Accordingly, vide order dated 20 th March, 2021, the Ministry of Home Affairs, Government of India directed the NIA to take up the investigation under Section 6 (5) read with Section 8 of the NIA and investigate the offence vide FIR No.12/2021 as well, being connected with the earlier offence. Reference in this regard is made to the order of the Ministry of Home Affairs, Government of India dated 21st May, 2021. The writ petition is further appended with various other documents relating to police custody, remand of the petitioner in Mumbai including applications for bail, a copy of charge sheet dated 3rd September, 2021, documents relating to the proceedings before the Special Judge, NIA at Mumbai, all proceedings being in Mumbai. It is therefore quite indubitable that the alleged offence, the subsequent complaint and investigation, the FIRs and the RC, filing of the charge sheet and all proceedings relating thereto including custody of the accused have all taken place in Mumbai.
(iii) The only peg on which the petitioner wishes to hang and support its plea before this Court is on the order of sanction which was by the Authority constituted under the order of the Home Ministry No.11034/1/2009/IS-IV dated 3rd July, 2015. Therefore, even as per the petitioner, in the full canvas of the matter the only event which has happened in the jurisdiction of this Court is this impugned decision. In the considered opinion of this Court the mere fact that the authority which awards sanction for prosecution under UAPA is located in Delhi, will not give this Court the jurisdiction to grant relief to quash that order sans the fact that all possible ingredients, events and proceedings in relation to the said matter are taking place in Mumbai.
(iv) The contention of the learned ASG that finally the cognizance of the charge-sheet have been taken now by the Special Court in Mumbai and trial has to commence thereafter, which trial court would be competent to also adjudicate upon the challenge that the petitioner may have to the sanctioning order, also finds favor with this Court.”
Equally significant is what is then mandated in para 12 holding that, “On a broad holistic assessment of decisions cited by the petitioner would show that there are practically two elements which have to be considered by any court while accepting jurisdiction to decide a writ petition under Article 226 of the Indian Constitution – firstly, if any part of the cause of action arises within its territorial jurisdiction; and secondly if the said court is the forum conveniens. Only a mere shred or an iota of a cause of action potentially clothing a particular High Court with jurisdiction [per Article 226(2) of the Constitution of India] to adjudicate a writ petition, ought not to encourage a court to accept such jurisdiction completely divorced and dehors an assessment of forum conveniens. This has been categorically articulated in decisions of this Court. A Special Bench comprising 5 judges of this Court [Chief Justice Dipak Misra, Vikramajit Sen, J. A.K. Sikri, J. Sanjiv Khanna, J. and Manmohan, J.] in Sterling Agro (supra) after traversing the law relating to territorial jurisdiction in context of Article 226 of the Constitution of India emphasized that the High Court must not only advert to the existence of a cause of action but also remind themselves about the doctrine of forum conveniens also. In this regard the following paragraphs of the judgment of the Special Bench are instructive which are reproduced as under for easy reference:
“30. From the aforesaid pronouncements, the concept of forum conveniens gains signification. In Black’s Law Dictionary, forum conveniens has been defined as follows: “The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses.”
31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable.
32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. (supra) has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view. (emphasis added)
Accordingly, in para 33 of the reported judgement in Sterling Agro Industries (supra) this Court concluded that a cause of action cannot be totally based on the situs of the tribunal /appellate authority/ revisional authority while completely ignoring the concept of forum conveniens, and that the High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.”
What’s more, the Division Bench then observes in para 13 that, “Reference was also made to a decision of the Division Bench of this Court in Sonu Sardar Vs. Union of India (2016) SCC Online Del 6206 where this Court while noting the decision in Sterling Agro (supra) examined issue of jurisdiction of this Court in a matter where the petitioner had impugned the orders of the President of India and the Governor of Chhattisgarh rejecting the mercy petition of the petitioner who had been sentenced to death. In Sonu Sardar (supra), this Court while adverting to the concept of cause of action drew a distinction between a situation where criminal investigation was pending and where criminal proceedings had attained finality and the challenge was merely to an executive action, as in the case of a mercy petition. Para 21 of the judgment of this Court in Sonu Sardar (upra) is extracted under for ease of reference:
“The concept of cause of action in respect of criminal proceedings cannot apply sensu stricto to the present proceedings as the same are not a continuation of the judicial proceedings but premised upon executive orders. Accordingly, the judgments of the Supreme Court in Navinchandra N. Majitha (Supra) and Manoj Kumar Sharma (Supra) do not come to the aid of the applicant as in both the cases the criminal investigation was pending; while the present proceedings have arisen as a consequence of executive actions and by no means can be said to be an extension of the criminal proceedings, which have attained finality.”
Thereafter, this Court noted the decision in Kusum Ingots (supra) and Sterling Agro (supra) on the application of principle of forum conveniens and stated as under:
“27. In view of the aforegoing, it is clear that the courts should generally decide disputes upon which they have jurisdiction. They may decline to exercise such jurisdiction only if there are compelling reasons for not doing so. In doing so, the courts must apply a balancing test and reject to exercise jurisdiction only if there are compelling reasons keeping the Latin maxim Judex tenetur impertiri judicium suum in mind.””
To put things in perspective, the Division Bench then envisages in para 14 that, “Learned counsel for the petitioner relied upon the reasoning by this Court in para 30 of Sonu Sardar (supra) that since material to be examined is the advice tendered by the Cabinet and all documents and records were in Delhi, the decision was taken in Delhi and therefore, this Court has jurisdiction to entertain the writ petition. However, this Court notes that this reasoning was premised upon the observation in para 29 of the said decision where this Court noted that the scope of judicial review in rejection of mercy petitions is limited and it extends only to the material upon which the decision is based, i.e., whether all relevant material was considered before arriving at a conclusion. This decision will not come to the aid of the petitioner, since in the considered view of this Court, firstly this Court drew a distinction between a petition challenging an issue relating to criminal proceedings which were ongoing as opposed to a situation of a mercy petition where criminal proceedings had attained finality and what has to be examined in isolation was the executive action; secondly, this Court was fully cognizant of the law laid down in the line of decisions from Kusum Ingots (supra), Ambica Industries Vs. Commissioner Of Central Excise, (2007) 6 SCC 769, Sterling Agro (supra) where the court is obliged to consider not only existence of part of cause of action but also balancing it by applying the principle of forum conveniens.”
Most forthrightly, the Division Bench then articulates in para 15 noting that, “The concept of forum conveniens is well articulated in the said decision and therefore this Court finds no basis or occasion to take a divergent view from the decision taken by the special Bench comprising of five judges of this Court. Having considered the facts and circumstances of the matter and the obvious forum conveniens for the petitioner, being a resident of Mumbai, seeking relief relating to proceedings underway in Mumbai, the special courts and authorities investigating and adjudicating the matter located in Mumbai, this Court finds no reason to clothe itself with territorial jurisdiction to adjudicate the relief sought in this petition.”
Quite naturally, the Division Bench then expounds in para 16 stating that, “Considering that prayer (b) of this writ petition [quashing of the impugned order of the Respondent no. 1] is the dominant and effective relief for which the petitioner seeks immediate redress, the generic prayer (a) [regarding unconstitutionality of provisions of UAPA] can be considered as concomitant and conjunctive to prayer (b), as framed by the petitioner in the writ petition. Therefore, there is no reason why prayer (a) should be severed and considered in isolation to prayer (b).”
As a corollary, the Division Bench then holds in para17 that, “For the aforesaid reasons, this Court is of the considered view that the order passed by Respondent no. 1 granting sanction for prosecution under Section 45 (1) of the Unlawful Activities (Prevention) Act, 1967 would have to be considered along with and in conjunction with investigations and proceedings which it relates to and therefore the courts at Mumbai would have the natural and logical jurisdiction to decide issues challenged in this writ petition. The issue framed by this Court on 3rd March, 2022, is answered accordingly.”
What’s more, the Division Bench then directs in para 18 that, “In light of the foregoing, the Writ Petition is therefore dismissed for lack of territorial jurisdiction to adjudicate the relief sought.”
CRL.M.A. 959/2022 CRL.M.A. 960/2022 CRL.M.A. 1449/2022, CRL.M.A. 1450/2022, CRL.M.A. 2095/2022, CRL.M.A. 2096/2022
Finally, the Division Bench then concludes by directing in para 19 that, “In view of dismissal of the writ petition, the aforementioned applications are disposed of as infructuous.”
All told, we thus see that the Delhi High Court has made it crystal clear that when proceedings are pending elsewhere, the UAPA’s sanctioning authority cannot be challenged in Delhi just because Ministry of Home Affairs (MHA) is here. It goes without saying and merits just no reiteration that all the Courts must definitely without fail pay heed to what the Delhi High Court has laid down so very clearly, cogently and convincingly in this leading case. There can be just no denying or disputing it!
Sanjeev Sirohi