Justices Rajeev Ranjan Prasad, Sunil Dutta Mishra sets asdie order by Special Judge, Special Court (NIA Cases), Patna, directs him to hear case of East Champaran residents afresh

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.  

Acting Chief Justice led bench sets aside judgement of Justice Mohit Kumar Shah but does not order return of arms and license

In Md. Kaisar Warsi vs. The State of Bihar Through the Home Secretary & Ors. (2025), Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy delivered a 8-page long judgement dated May 12, 2025 setting aside the 13-page long judgement dated September 5, 2023 by Justice Mohit Kumar Shah of the High Court which had upheld orders of District Magistrate, Saharsa and Commissioner, Saharsa regarding cancellation of license under Section 17 of the Arms Act. 

The appellant/writ petitioner was a holder of arms license. On March 19, 2021, he was served with a notice by the District Magistrate, Saharsa asking him to explain within 24 hours as to the number of cartridges purchased and spent for a period of 15 years ranging from 2005 to 2020. It appeared from the notice that in the official records, evidence was available of purchase of 1350 cartridges, the last of the purchases having been made on December 25, 2020. The appellant petitioner replied that over a period of 15 years, the cartridges have been spent on special days as also for checking up the fitness of the weapon and he is in possession of 48 cartridges as on that date. Thereafter, the District Magistrate, Saharsa by his order dated August 5, 2021, assumed that the writ petitioner has violated the condition of not indulging in celebratory firing, cancelled the license of the petitioner. This order was sustained by the appellate authority and both the orders were validated by Justice Shah, the Single Judge of the High Court. The reasoning adopted by him in upholding these orders was that even though proscription on celebratory firing was incorporated in the Arms Act only in the year 2019 but then, an additional condition in the Arms Rules, namely, Sub-Clauses -7, 8 and 9 of Arms Rules of 2016, having been violated, the holder of license lost his right for holding such fire-arm and the District Magistrate, Saharsa was perfectly within his rights to cancel his license under Section 17 of the Arms Act.

The High Court's Division Bench observed:"We are not in agreement with the aforenoted logic and reason provided by the learned Single Judge. Section 17 provides the power to the Licensing Authority to vary the conditions subject to which the license has been granted, except such of them as has been prescribed and may for that purpose require the license holder by a notice in writing to deliver up the license to it within such time as may be specified in the notice. A Licensing Authority may, by order in writing suspend a license for any such period which he thinks fit or revoke a license. If the Licensing Authority is satisfied that the holder of the license is prohibited by the Arms Act or by any other law for the time being in force from acquiring, possessing or carrying any arms or ammunition or is of unsound mind or is for any other reason unfit for a license or if it is necessary for the security of the public peace or for public safety to suspend or revoke the license or if the license was obtained by fraud and suppression of material information or if any of the conditions of the license has been contravened. The license could also be revoked or suspended if a license holder fails to comply with the notice under Section 17 requiring him to deliver up the license. It appears that none of these conditions were available for the cancellation of license of the appellant /writ petitioner."

The Bench further observed:"We are also surprised at the contents of the notice given to the appellant asking him to explain within 24 hours, on day to day basis for fifteen years the details of the occasions on which the cartridges purchased by him were spent. We have perused the reply furnished by the appellant, which does not specifically admits of the appellant having spent the cartridges on celebratory firing after 2019. All that the explanation discloses is that 1350 cartridges were acquired over a long period of time from different sources under the license and were spent on special days as also for the purposes of checking the fitness of the weapon so that it is not rendered unfit by disuse. Based on the aforenoted explanation, a police report was called for from the Superintendent of Police, wherein also, no adverse report came against the appellant. Without any further notice to the appellant to deliver up his license and the fire arm and intimating him the reason for proceeding to cancel his license, the license was cancelled only on the ground of having used the weapon for celebratory firing."

Although Justice Shah noted that the proscription of celebratory firing was brought into the statute from the year 2019, he only relied upon three of the clauses, namely, 7, 8 and 9 of Arms Rules of 2016 to justify the order of cancellation of license and its validation by the appellate authority.

Notably, it was recorded in the Justice Shah's judgement that the petitioner had submitted that prior to the amendment of the Arms Act, 1959, which came into effect from December 14, 2019, celebratory firing was not prohibited. It was also submitted that only with effect from that day, Section 25 of the Arms Act, 1959 was amended and sub-section (9) was added thereto, which reads as follows:-
“(9) Whoever uses firearm in a rash or negligent manner or in celebratory gunfire so as to endanger human life or personal safety of others shall be punishable with an imprisonment for a term which may extend to two years, or with fine which lakh, or with both.
Explanation.—For the purposes of this sub-section, “celebratory gunfire” means the practice of using fire-arm in public gatherings, religious places, marriage parties or other functions to fire ammunition.]” 

It was submitted that since celebratory firing was not prohibited prior to December 14, 2019, the petitioner could not have been penalized by cancelling the arms license, hence the order dated August 5, 2021, passed by the District Magistrate, Saharsa, as also the appellate order dated June 3, 2022 was fit to be set aside.

Justice Shah's judgement recorded that the petitioner had submitted his reply dated April 3, 2021, stating therein that he has used 1302 cartridges in between the years 2005 to 2020, for not only testing his rifle but also on the occasion of Eid and Deepawali. His judgement reads: "This Court finds that the amendment in the Arms Act, 1959 has come into force with effect from 14.12.2019, whereby sub-section (9) has been added to Section 25, which prohibits celebrating firing, hence, considering the fact that the petitioner has submitted his reply dated 03.04.2021, admitting therein that he has engaged in celebratory firing on the occasion of Eid and Deepawali in between the years 2005 to 2020, he is definitely liable for penal consequences/cancellation of his arms license, inasmuch as the year 2020 is definitely covered by the aforesaid amendment. Nevertheless, this Court finds that under the old Arms Rules, 1962, certain conditions have been prescribed as pre-requisites for possessing arms license and one of the conditions is that the licensee shall not carry any arms to a fair, religious procession or other public assemblage or within the campus or precincts of any educational institutions, meaning thereby that no arms can be taken to a religious procession or in marriage festivities. In fact, the amended Arms Rules, 2016, which undeniably covers the present case, also postulates various conditions required to be adhered to for possessing an arms license and the same not only prohibits carrying of fire-arms to a fire-arm free zone or in a public place but also prohibits brandishing of fire-arms in public place or firing fire-arms in any public place on the occasion of marriage, public assembly, fair or procession or any public event."

Justice Shah's judgement pointed out that "the petitioner has admitted to celebratory firing on the occasion of Eid and Deepawali festival, apart from having engaged in such firing on the occasion of marriage ceremony as is apparent not only from the reply of the petitioner dated 03.04.2021, but also from the order dt. 03.6.2022, passed by the Commissioner, Koshi Division, Saharsa and from the report of the Police Officer, Sour Bazar Police Station annexed as annexure-4 series to the writ petition, which has been heavily relied upon by the learned counsel for the petitioner, wherein it has been stated that the petitioner has himself informed the said police officer that on the occasion of Eid and other festivals as also on the occasion of marriage ceremonies, he has been engaging in firing in the air." 

Justice Shah's concluded:"this Court finds that the petitioner has not only violated the conditions prescribed for the purposes of possessing an arms license, as postulated under the Arms Rules, 1962 and the Arms Rules, 2016 but has also contravened Section 25 (9) of the Arms Act, 1959, as amended with effect from 14.12.2019, thus the license of the petitioner has rightly been cancelled by the District Magistrate, Saharsa, by the impugned order dt. 05.08.2021. Consequently, the appellate order dated 03.06.2022 also does not suffer either from jurisdictional error or any illegality. Having regard to the facts and circumstances of the case and for the reasons mentioned, hereinabove, I do not find any merit in the present writ petition, hence the same stands dismissed."

Based on documents on record, Justice Shah's judgement had inferred that the petitioner had admitted that he has been engaging in firing in the air on the occasion of Eid and other festivals as also on the occasion of marriage ceremonies even after 2019. 

The Division Bench pointed out that "In the absence of any adverse report and nothing specific in the explanation of the appellant of having admitted to celebratory firing after 2019, the decisions of the authorities, namely, the District Magistrate and the Commissioner appear to be totally unwarranted and based on complete non-application of mind."

The Division Bench concluded:"For the aforenoted reasons, we set aside the orders passed by the District Magistrate, Saharsa dated 05.08.2021 and the Commissioner dated 03.06.2022 in appeal and the judgment of learned Single Judge upholding the aforenoted two orders. However, we direct the District Magistrate, Saharsa/respondent no. 7 to serve a fresh notice to the appellant, within a period of 30 days from today and seek explanation from him as to why his license be not cancelled for having resorted to celebratory firing from 2019 onwards. After the explanation is received and the police report confirms that there had been violation of anyone of the conditions of license, a reasoned order by the District Magistrate shall be passed within a further period of 90 days, which shall be made known to the appellant forthwith. There would be no necessity of returning the arms and license to the appellant in the meanwhile. The appeal stands allowed to the extent indicated above." The other six respondents were: Divisional Commissioner Koshi Division, Saharsa, Superintendent of Police, Saharsa, Additional District Magistrate, (Arms) Saharsa, District Arms Magistrate, Saharsa,  S.H.O. Sour Bazar Police Station, Saharsa and District Magistrate, Saharsa respectively. The judgement of the Division Bench was authored by Justice Kumar.