In Reyaz Moarif @ Bablu & Ors. vs. The Union of India through Ministry of Home Affairs & Ors. (2026), Patna High Court's Division Bench of Justices delivered Justices Rajeev Ranjan Prasad and Sunil Dutta Mishra delivered a 10-page long judgement dated July 14, 2026, wherein, it set aside the impugned judgment/order passed by the Special Judge NIA and directed the Special Judge to consider the application of the appellants afresh and pass a reasoned order thereon within a period of two months from the date of receipt/production of a copy o this judgment."The judgement was authored by Justice Prasad. The judgement recorded that the observations of the trial court that the appellants ought to have waited till the conclusion of the trial before filing the petition does not hold good. Additional Solicitor General had conceded that 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. The other two respondents are: National Investigation Agency (NIA), through its Director General and Director General, NIA.
The appeal was filed in the High Court for setting aside the order dated August 23, 2025 passed by the Special Court (NIA Cases), Patna in Special Case No. 07/2022 whereby and whereunder the application filed by the appellants under Section 45 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) challenging the validity of sanction has been rejected by the Special Judge and the court had imposed a cost of Rs. 10,000/- on the appellants. These appellants, the accused nos. 4, 28, 29 and 30 are facing trial in Special Case No. 07/2022 and have been charged under Sections 17, 18 and 18A of the UAPA, 1967. The appellants are from Kuawan, Chakiya, East Champaran, Bihar.
The case arose out of R.C. No. 31 of 2022 originally registered with the Phulwarisharif P.S. in Crime No. 827 of 2022. In this case, the High Court was not required to go into the allegations against the appellants, therefore, for the brevity, Justice Prasad did not go into the charges against the appellants. The bone of contention in the case was the order of the Special Judge, NIA rejecting the application of the appellants to take up the challenge to the sanction order. The trial court had taken a view that the appellants had 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 cognizance and the framing of charge. The court had taken a view that the appellants ought to have waited till the conclusion of the trial before filing the petition.
The counsel for the appellants submitted that the central government, by sanction order dated August 1, 2023 in respect of Md. Tanweer, Md. Aabid and Irshad, the appellant nos. 2 to 4 and by order dated March 14, 2024 in respect of Reyaz Moarif, the appellant no. 1, had granted sanction under Section 45 of the UAPA, 1967 read with Section 196 Code of Criminal Procedure 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. The counsel relied upon the judgment of the 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 was submitted that as on July 14, 2026, seventeen witnesses were examined, six separate chargesheets were filed and all the chargesheeted accused were being tried in the same and one trial, there are altogether 423 witnesses as per the chargesheets. The counsel submitted that in such circumstance, the trial court could have well appreciated the fact that examination of the large number of witnesses would take several years and the challenge to the sanction order at the stage of trial may be considered at the earliest opportunity. It was submitted that in the case of Fuleshwar Gope (supra), the Supreme Court held 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 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 trial court which was directed to decide it promptly. The counsel also relied upon a Division Bench judgment of the Karnataka High Court in National Investigation Agency, Bengaluru vs. Fairoz Pasha & Ors, reported in 2025 SCC OnLine Kar 4023. Referring to paragraph ‘19’ of the said judgment, learned counsel had contended that the Division Bench of Karnataka High had summoned the sanctioning authority and examined 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 High Court had 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.
ASG assisted by Manoj Kumar, Standing Counsel for the NIA opposed the appeal but having gone through the judgment of the Supreme Court in the case of Fuleshwar Gope (supra) and that of the judgment of the Karnataka High Court in the case of Fairoz Pasha (supra), submitted that the observations of the 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.
Justice Prasad observed:"9....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 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)] 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 [if] such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. [(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.]' 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 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.'
The relevant paragraph ‘18’ from the relevant judgment of the Supreme Court in Fuleshwar Gope vs. Union of India & Ors. reported in 2024 SCC Online SC 2610 reads: “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 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.”
The relevant paragraph ‘19’ of Karnataka High Court's judgement in National Investigation Agency, Bengaluru vs. Fairoz Pasha and Others reported in 2025 SCC OnLine Kar 4023 reads: :-“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 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.”
Now the special judge, of the trial court judge will have to to consider the application of the appellants afresh and pass a reasoned order thereon within a period of two months because the observations of the special judge that the appellants ought to have waited till the conclusion of the trial before filing the petition was not correct and has been set aside and has been directed to consider the application afresh in accordance with law.
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