2014 ALL MR (Cri) 1460
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
A.M. THIPSAY, J.
Shivaji S/O. Sukhdeo Jaware Vs. The State Of Maharashtra & Anr.
Criminal Writ Petition No. 16 of 2014
26th February, 2014
Petitioner Counsel: Mr. AMIT A. MUKHEDKAR
Respondent Counsel: Mr. P.P. MORE, Mr. MUJTABA G. MUSTAFA
(A) Criminal P.C. (1973), Ss.482, 196 - Constitution of India, Art.226 - Quashing of prosecution - Ground of absence of sanction u/s.196 - Accused belatedly raised issue of want of sanction - Further, no reason suggested by prosecution as to why sanction was not sought at all by investigating agency - This gives rise to a doubt that the sanction was deliberately not obtained for protecting the accused officer - Held, though prosecution cannot be permitted to be continued without a valid sanction, Writ Court must see to it that substantial justice is done to the parties - Accordingly, while prosecution is quashed, it is also directed that investigating agency shall forthwith seek sanction from appropriate Government, and in event of such sanction being received, take appropriate steps in matter for filing a charge sheet with an application for condonation of delay. (Paras 13, 16)
(B) Penal Code (1860), S.295A - Criminal P.C. (1973), Ss.196, 482 - Offence against religion - Cognizance of offence under S.295 A IPC - Without obtaining any sanction from Government u/s.196 Cr.P.C. - Maintainability - Provision u/s.196 is mandatory and creates bar on very power and authority of court to take cognizance of offence without previous sanction of Government - Prosecution not maintainable - But, in view of doubt that sanction was deliberately not obtained for protecting the accused officer and that the quashing may hurt the religious feeling of class of citizens, it is directed that investigating agency shall forthwith seek sanction from appropriate Government and in event of such sanction being received, take appropriate steps in matter for filing a charge sheet with an application for condonation of delay. (Paras 10, 13, 14, 16)
JUDGMENT
2. By consent of parties, Rule is made returnable forthwith.
3. Respondents waive service. By consent, heard finally.
4. The petitioner is the accused in Regular Criminal Case No.105 of 2013 pending before the Judicial Magistrate, First Class, Nandurbar. The case was initially numbered as Regular Criminal Case No.361 of 2008.
5. The case arises on a police report alleging commission of an offence punishable under section 295-A of Indian Penal Code, by the petitioner. By the present petition, the petitioner is invoking the constitutional jurisdiction of this Court and praying that the proceedings of the said case be quashed.
6. The ground on which the proceedings are sought to be quashed is that, the cognizance of the alleged offence could not have been taken in the absence of a sanction as contemplated under section 196 of the Code of Criminal Procedure [hereinafter "the Code" for brevity].
7. It is not disputed before me that no sanction, as contemplated under section 196 of the Code, has been obtained in the matter.
8. A bare reading of section 196 of the Code makes it clear that the Court is not empowered to take cognizance of an offence punishable under section 295-A of Indian Penal Code except with the previous sanction of the Central Government or of the State Government.
9. The learned counsel for the Respondent No.2 i.e. original first information did not dispute this legal position. He, however, attempted to suggest that the question of sanction may be left open, but the proceedings of the said case may not be terminated at this stage on that ground. He also submitted that the petitioner is deemed to have waived the question of sanction because of the inordinate delay on his part in such contention being taken before the trial Court.
10. I am afraid, this contention cannot be accepted. The manner in which section 196 of the Code is worded, leaves no doubt that the said provision is mandatory and creates a bar on the very power and authority of the court to take cognizance of the offences mentioned therein without the previous sanction of the Central Government or of the State Government. Such previous sanction is a pre-condition for taking cognizance of the offence in question. Therefore, the prosecution, which is instituted without obtaining any sanction from the Government, is not maintainable.
11. However, there are some disturbing aspects of the matter which need a mention here.
12. The first information report was lodged on 28th January, 2008. The charge sheet came to be filed on 22nd March, 2008. Apparently, the petitioner, who appeared before the Court, was furnished with a copy of the charge sheet but did not raise any grievance about the maintainability of the prosecution for want of sanction under section 196 of the Code. He raised that issue before the trial Court, for the first time, on 16th July, 2013. This application, to discharge him for want of sanction, was rejected by the learned Magistrate by an order dated 9th October, 2013 pursuant to which the present petition came to be filed.
13. From the aforesaid dates and happenings, it is apparent that the petitioner waited for a considerable period before seeking discharge on the ground of non-availability of sanction under section 196 of the Code. Under the provisions of section 470 of the Code, the period required in obtaining the sanction would be excluded from computing the period of limitation. It could be that the petitioner ensured that the period of limitation had already expired, and only thereafter raised the issue of want of sanction. Had he raised the issue of want of sanction earlier, steps could have been taken by the investigating agency to secure the sanction. In that case, the provisions of section 470 (3) would have made it possible to cure the defect without being affected by the 'Bar of Limitation'.
14. Though, in view of the mandatory provisions of law, the prosecution, which is in progress, cannot be permitted to be continued, while exercising writ jurisdiction conferred on this Court, this Court needs to see that real, proper and substantial justice is done to the parties. There is absolutely no reason suggested by the learned A.P.P. as to why sanction was not sought at all by the investigating agency. The very absence of any reason in that regard makes me doubt whether the sanction was deliberately not sought. It is possible that this might have been done with the object of protecting the petitioner.
15. Considering the nature of the offence punishable under section 295-A of I.P.C., which arises out of a deliberate and malicious intention of outraging the religious feeling of a class of citizens, if the prosecution of the alleged offenders is allowed to fail only because the investigating agency did not seek the sanction at all, the feelings and sentiments of such affected class of citizens shall be further hurt - and rightly so. It is not that the Government has taken a decision not to accord the sanction but the sanction has not been applied for at all; and this makes the matter quite serious. Undoubtedly, the prosecution in the instant case cannot be permitted to be continued without a valid sanction as it will create complications and even at a later stage would render the entire trial proceedings null and void. Thus, while doing the right thing of quashing the prosecution by exercising the writ jurisdiction available to this court, another right thing viz. of giving appropriate directions to the investigating agency and to the State of Maharashtra to set the things right, also should be done.
16. The petition is allowed in terms of prayer clauses (C) and (D).
17. However, it is directed that the investigating agency shall forthwith seek sanction from the appropriate Government; and in the event of such a sanction being received, take appropriate steps in the matter for filing a charge sheet with an application for condonation of delay.q
18. A copy of this order be forwarded to the Director General of Police, Maharashtra State, who may examine why sanction to prosecute the petitioner was not sought at all by the investigating agency and take further appropriate action in the matter. A copy of this order be also forwarded to the Chief Secretary to the Government of Maharashtra who may take such further action in the matter as he may think fit.
The Director General of Police, Maharashtra State and the Chief Secretary to the Government of Maharashtra be requested to acknowledge the receipt of this order by them.