Bombay High Court
Swarup Shashikant Kelkar vs The State Of Maharashtra And Another on 12 December, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
{1} CRI APPLN 940 OF 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
60 CRIMINAL APPLICATION NO.940 OF 2021
SWARUP SHASHIKANT KELKAR
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Applicant : Mr.Gangakhedkar Shailendra S.
APP for Respondent No.1 : Mr.R.D.Sanap
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
DATE : 12th December, 2022 PER COURT :-
. Though respondent No.2 served twice, he has not caused appearance.
2. We would like to put certain facts on record. Though, the FIR was also under Section 66-A of the Information Technology Act (for short 'the IT Act'), it appears that in view of the decision in Shreya Singhal vs. Union of India [AIR 2015 Supreme Court 1523], at the time of fling of charge-sheet, the charge-sheet did not contain/mention that it was also under Section 66-A of the IT Act. The charge-sheet was fled for the ofence under Section 295-A of the Indian Penal Code only.
3. Learned Advocate for the applicant submits that no prior ::: Uploaded on - 15/12/2022 ::: Downloaded on - 16/12/2022 05:55:02 ::: {2} CRI APPLN 940 OF 2021 sanction has been obtained of any appropriate Government by the Investigating Ofcer, which is mandatory under Section 196(1) of the Code of Criminal Procedure. He places reliance on Manoj Rai and others vs. State of M.P. [AIR 1999 Supreme Court 300].
4. Learned APP seeks accommodation to fle an afdavit clarifying the position in respect of whether the sanction was sought / applied for and what was the status report when the charge-sheet was fled.
5. At the outset, it is to be noted that the pronouncement in Shreya Singhal (supra) of the Hon'ble Supreme Court had come in the year 2015 precisely on 24-03-2015. Precautions were required to be taken by the Police authorities while registration of ofence itself and in this case, FIR has been registered on 29-01-2021. In spite of knowledge about striking down the section, there cannot be scope for registration of the FIR and deleting that section at the time of charge-sheet when the fact is realized. Secondly, along with charge-sheet, when it was expected that the mandatory provisions under Section 196(1) of the Cr.P.C. should have been followed and if such sanction would have been there, copy of the same ought to have been annexed. ::: Uploaded on - 15/12/2022 ::: Downloaded on - 16/12/2022 05:55:02 :::
{3} CRI APPLN 940 OF 2021 Not taking steps or not annexing that document shows the negligence on the part of the Investigating Ofcer. However, we would like to give an opportunity to the Investigating Ofcer to explain the situation. However, at this stage itself, we are reserving our right to compensate the applicant for unnecessary harassment if this Court comes to that conclusion.
6. Afdavit to be fled on or before 09-01-2023 and this period will not be extended on any count.
7. Place the matter for further consideration on 10-01-2023.
( ABHAY S. WAGHWASE ) ( SMT. VIBHA KANKANWADI )
JUDGE JUDGE
SPT
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