Allahabad High Court
Gayyur vs State Of U.P And Another on 17 August, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on: 03/08/2022 Judgment Delivered on: 17/08/2022 Court No. - 82 Case :- APPLICATION U/S 482 No. - 9473 of 2022 Applicant :- Gayyur Opposite Party :- State Of U.P And Another Counsel for Applicant :- Pawan Singh Pundir Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.
1. Heard Sri Pawan Singh Pundir, learned counsel for the applicant and Sri Manish Goyal, learned Additional Advocate General assisted by Sri Rajesh Mishra and Sri Abhijeet Mukharjee, learned A.G.A. for the State.
2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned charge sheet dated 26.08.2020 as well as order dated 07.07.2021 in Case No. 3131 of 2021 arising out of Case Crime No 106 of 2000, under Sections 121, 121-A, 122 & 123 I.P.C., Police Station- Kandhala, District- Shamli, pending in the Court of Judicial Magistrate, Shamli at Kairana with a further prayer to stay the proceedings of the aforesaid case.
3. Brief facts of the case are that Station Officer, J.K. Tomar lodged an F.I.R. against two persons in Case No. 106 of 2020, under Sections 121, 121-A, 122 & 123 I.P.C., Police Station Kauthala, District Muzaffarnagar with averment that accused have waged war against government and hatched conspiracy against the country. It is further mentioned that they were living in India without passport. The applicant was not named in the F.I.R.. The charge sheet was filed on 18.05.2000 against applicant and two co-accused and cognizance was taken on 09.06.2000. The applicant was acquitted in Sessions Trial No. 820 of 2000 vide order dated 18.05.2007 passed by the Additional District and Sessions Judge, Court No. 7, District Muzaffarnagar. 4. That the co-accused who were convicted in the said trial filed a Jail Appeal No. 8326 of 2007 and the same was allowed on the ground that sanction has not been accorded by the State Authority, therefore, the appeal was allowed and the Court observed that Competent Authority as contemplated in Section 119 Cr.P.C. had not applied its mind and trial was vitiated.
5. After order dated 05.08.2019 the Superintendent of Police (S.P.), Shamli wrote a letter to District Magistrate on 19.03.2020 for sanction of the prosecution. The State Government sanctioned the prosecution on 31.07.2020, and thereafter, S.H.O. P.S. Kandhala moved an application before the Court for re-trial of the case against all the accused persons.
6. The charge sheet was again submitted on 26.08.2020 and the Court took cognizance on 07.07.2021 and all the accused including the present applicant have been summoned. The applicant has challenged the said order of cognizance dated 07.07.2021 on the ground that he was acquitted from the case in Sessions Trial No. 820 of 2000 vide order dated 18.05.2007 passed by the Additional District and Sessions Judge, Court No. 7 Muzaffarnagar, therefore, he cannot be retried.
7. It has been further submitted by counsel for the applicant that Judicial Magistrate, Shamli has not applied his mind and he did not consider the ground that applicant was already acquitted by Sessions Court.
8. Learned counsel for the applicant has submitted that according to Article 20(2) of the Constitution of India no person shall be prosecuted and punished for the same offence more than once. Learned counsel for the applicant has relied upon the judgment of Division Bench of Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Bhooraji reported in Law (SC) 2001 8 75.
9. On the other hand, Sri Manish Goyal, learned Additional Advocate General, State of U.P. has submitted that the Division Bench of this Court passed the judgment in Jail Appeal No. 8326 of 2007 (Mohd. Waris @ Raza Vs. State) on 05.08.2019 in which observation is made that in the present case the prosecution did not applied mind under Section 196 Cr.P.C and sanction was not accorded by the State. It has been further stated that a bare perusal of Section 465 Cr.P.C. shows that if there is no complete "omission" of sanction, then Section 465 Cr.P.C. will not come into picture and will not help prosecution. In absence of sanction by the Competent Authority under Section 196 Cr.P.C. it will be a serious flaw and an illegality and would vitiate the entire proceedings. Since, in the present case, sanction required Section 196 Cr.P.C. is wholly absent, therefore, the entire trial becomes void ab initio. Sri Goyal has further stated that in pursuance of the Division Bench order dated 05.08.2019 the State Authority applied its mind and the sanction has been accorded vide Government order dated 31.07.2020. The Court proceeded in absence of the sanction order of the Competent Authority and retrial is taking in accordance with law. It has been further submitted by Sri Goyal that sanction order dated 31.07.2020 has not been challenged by counsel for the applicant, therefore, the consequence has followed and the trial has re-started.
10. Chapter-VI I.P.C. contains Sections 120 to 130 in which the applicant has been prosecuted. Section 196 I.P.C. is quoted herein below:-
"196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or 2 Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860 ), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860 ), except with the previous sanction of the Central Government or of the State Government.
(1-A) No Court shall take cognizance of-
(a) any offence punishable under section 153B or sub- section (2) or sub- section (3) of section 505 of the Indian Penal Code (45 of 1860 ), or
(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.
(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal code (45 of 1860 ), other than a criminal conspiracy to commit 1 an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before according sanction under sub- section (1) or sub- section (1A) and the District Magistrate may, before according sanction under sub- section (1A) and the State Government or the District Magistrate may, before giving consent under sub- section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub- section (3) of section 155."
11. Section 196 I.P.C. is absolute and unequivocal which contemplates that prior sanction form the Central Government or State Government for taking cognizance for the offence punishable under Chapter-VI I.P.C. is pre-condition. The Division Bench in the Jail Appeal (supra) decided on 05.08.2019 has made observation to that effect. Paragraph no.s 33, 34, 35, 36, 37, 39, 40, 45 are quoted herein below:-
"33. A perusal of Section 196 Cr.P.C., clearly shows that it contemplates a prior sanction from Central Government or State Government before cognizance is taken of any offence punishable under Chapter-VI I.P.C. Therefore, apparently, it cannot be disputed and learned AGA has also fairly stated that as per requirement of Section 196 Cr.P.C., no cognizance could have been taken of offence punishable under Chapter-VI I.P.C. unless prior sanction from Central Government or State Government is obtained.
34. In the present case, opportunity was granted to State to show whether such sanction was given of categorical statement has been made by learned AGA before this Court that no such sanction was granted or even sought to be obtained, hence, question of grant by competent authority does not arise. Prosecution, in fact, strangely proceeded in complete and absolute ignorance of Section 196 Cr.P.C. It is really surprising that prosecution was not aware that for offences punishable under Chapter-VI I.P.C., there was/is a statutory requirement of obtaining prior sanction of Competent Authority. No efforts at all were made to obtain the same.
35. Proceeding further now we have to examine, "whether requirement of ''prior sanction' under Section 196 Cr.P.C. is mandatory" and secondly, if no such issue was raised before Magistrate, who committed proceedings to Court of Sessions/Trial Court, whether it will stop appellants from raising issue for the first time in appeal, or flaw is so inherent it goes to the root of the matter and even in appeal, it can be taken for the first time and may vitiates Trial and conviction.
36. The object of Section 196 Cr.P.C. is to ensure prosecution after due consideration by appropriate authority so that frivolous or needless prosecution is avoided. To appreciate the nature of "sanction" contemplated under Section 196 Cr.P.C., in correct perspective, it would be appropriate to bear in mind and examine Section 465 Cr.P.C., which reads as under :-
465. Finding or sentence when reversible by reason of error, omission irregularity.
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
(Emphasis added)
37. A perusal of Section 465 Cr.P.C. shows that it runs into two parts; (i) "on any error, omission or irregularity", and three words have been used and it is said that the same will not justify setting aside of conviction in appeal or revision etc. but with reference to "sanction" only two words "error or irregularity" have been used and the word "omission" has not been mentioned. Meaning thereby, in the cases where sanction is required, if there is an error or irregularity in the "sanction", then conviction or finding will not be reversed in appeal or revision. It contemplates that sanction is there but there is some error or irregularity in granting sanction. If there is a complete "omission" of sanction, then in our view, Section 465 Cr.P.C. will not come into picture and will not help prosecution. It, therefore, leads to irrestible inference that if there is no sanction, whatsoever, by competent authority as contemplated in Section 196 Cr.P.C., it will be a serious flaw and an illegality and would vitiate the entire proceedings.
39. Herein, it is admitted position that neither on the part of State any effort to obtain sanction from the competent authority under Section 196 Cr.P.C. has been made, nor any such sanction has been granted. Thus, issue in the present case is squarely covered by Supreme Court judgement in Manoj Rai and others Vs. State of Madhya Pradesh (supra) and a Division Bench judgement of this Court in Altah Hussain @ Mohd. Altah @ Rohit @ Abdul Rahman Vs. State of U.P. (supra) and connected appeal decided on 17.01.2017.
40. So far as authorities cited by learned AGA are concerned, we find that in Dharmesh @ Nanu Nitinbhai Shah vs. State of Gujarat (supra) an order of sanction was there but obtained after filing of Charge sheet. It was not a case where no sanction at all was granted. Court exercising its power under Article 136, in the facts of that case, refused to interfere holding that even if Magistrate had taken cognizance without sanction and at proper juncture i.e. before recording of evidence or framing charge, sanction is obtained, then also, prosecution cannot relegate to take recourse to fresh proceedings and in these circumstances taking of cognizance by Magistrate or the Court of Sessions would be merely an irregularity and not illegality. In that case sanction was filed before Trial Court though with slight delay at the stage of trial. In the present case, sanction as required under Section 196 Cr.P.C. is wholly absent and not filed before Court at any stage, therefore, the said judgment cannot help State in any manner.
45. Accordingly, both the appeals are partly allowed. Conviction and sentence of appellants under Section 121, 121-A, 122 and 123 IPC is set aside."
12. Learned counsel for the applicant has cited judgment in the case of State of Madhya Pradesh Vs. Bhooraji (supra), paragraph nos. 3, 4, 9, 21, 22 quoted herein below:-
"3. We shall now briefly sketch the background of this appeal. On 26.8.1991 an incident happened in which one Undaria was murdered and three others were wounded. The police, after investigation, charge-sheeted eleven persons in respect of the said incident for various offences including Section 302 read with Section 149 IPC and Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short the SC/ST Act). The case started in January 1992 before the court of the Additional Sessions Judge, Dhar (M.P.) which was the specified court as per Section 14 of the said Act. The court framed charges against all the eleven persons for the aforementioned offences and proceeded with the trial. In the words of the Division Bench of the High Court after a protracted trial for about five years the eleven persons were convicted under Section 148, 323, 302/149 of the IPC and sentenced to various punishments including imprisonment for life, as per the judgment pronounced on 23.8.1996.
4. All the eleven convicted persons filed appeal before the High Court of Madhya Pradesh. It was during the pendency of the said appeal that Supreme Court decided the case in Gangula Ashok vs. State of A.P. 2000 (2) SCC 504, in which it was held that committal proceedings are necessary for a specified court under the SC/ST Act to take cognizance of the offences to be tried. But the legal position which held the field in the State of Madhya Pradesh till then was the same on account of a judgment pronounced by a Division Bench of the High Court of Madhya Pradesh in Meerabhai vs. Bhujbal Singh 1995 Criminal Law Journal 2376 (MP). But the said legal position was changed in the said State when a Full Bench of the High Court of Madhya Pradesh overruled the aforesaid dictum by a judgment reported in Anand Swaroop vs. Ram Ratan (1996 M.P. Law Journal 141). The Full Bench held that Section 193 of the Code of Criminal Procedure does not apply to proceedings under the SC/ST Act and committal orders are not required. The Full Bench, in order to prevent repetition of trials already held or started, took the precautionary measure of directing that when cognizance has already been taken on the basis of committal orders it is not necessary for the courts to retrace their steps or to take cognizance afresh. The said judgment of the Full Court was delivered on 23.8.1995.
9. Learned counsel for the appellant cited the decision of this Court in State of H.P. vs. Gita Ram 2000 (7) SCC 452 when this Court had to consider an order passed by a single Judge of the High Court directing retrial of a sessions case. The following is what this Court observed then:
"We are distressed to note that learned Single Judge was not told by the government advocate of the fall out of such a view, if taken by the Single Judge, that it means all the witnesses once examined in full should be called back again, and the whole chief- examination, cross-examination, re-examination and questioning of the accused under Section 313 of the Code, hearing arguments, then examination of defence witnesses further, again final arguments to be heard and preparation of judgment once again. The very object underlined in Section 465 of the Code is that if on any technical ground any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest stage. If he did not raise it at the earliest stage he cannot be heard on that aspect after the whole trial is over."
21. The expression a court of competent jurisdiction envisaged in Section 465 is to denote a validly constituted court conferred with jurisdiction to try the offence of offences. Such a court will not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-compliance of the procedural requirement. The inability to take cognizance of an offence without a committal order does not mean that a duly constituted court became an incompetent court for all purposes. If objection was raised in that court at the earliest occasion on the ground that the case should have been committed by a magistrate, the same specified court has to exercise a jurisdiction either for sending the records to a magistrate for adopting committal proceedings or return the police report to the Public Prosecutor or the police for presentation before the magistrate. Even this could be done only because the court has competence to deal with the case. Sometimes that court may have to hear arguments to decide that preliminary issue. Hence the argument advanced by the learned counsel on the strength of the aforesaid decisions is of no avail.
22. The bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the Court concerned is a a Court of competent jurisdiction, e.g. Courts are debarred from taking cognizance of certain offences without sanction of certain authorities. If a Court took cognizance of such offences, which later found to be without valid sanction, it would not become the test or standard for deciding whether that court was a Court of competent jurisdiction. It is now well settled that if the question of sanction was not raised at the earliest opportunity the proceedings would remain unaffected on account of want of sanction. This is another example to show that the condition precedent for taking cognizance is not the standard to determine whether the Court concerned is a Court of competent jurisdiction."
13. Sri Manish Goyal has taken objection that the said judgment is decided by two Judges Bench whereas the said issue in question has been decided by three Judges Bench in the Judgment in the case of Jaswant Singh Vs. State of Punjab reported in 1958 AIR 124 decided on 25.10.1957. He has submitted that the said judgment on the issue will hold the field. The relevant portion of the said judgment is quoted herein below:-
"The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; Basque Agarwala v. King Emperor (1). The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself tile evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka v. The King (2) the Judicial Committee of the Privy Council also took a similar view when it observed:
" In their Lordships' view, to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the Sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction' the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. (1)[1945] F.C.R. 93,98 (2) [1948] L.R. 75 I.A.30, 37 It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla Noorbhoy v. The King (1) it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction."
In the present case the sanction strictly construed indicates the consideration by the sanctioning authority of the facts relating to the receiving of the illegal gratification from Pal Singh and therefore the appellant could only be validly tried for that offence. The contention that a trial for two offences requiring sanction is wholly void, where the sanction is granted for one offence and not for the other, is in our opinion unsustainable. Section 6(1) of the Act bars the jurisdiction of the court to take cognizance of an offence for which previous sanction is required and has not been given. The prosecution for offence under s. 5(1)(d) therefore is not barred because the proceedings are not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh, but the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution and trial for that offence was void for want of sanction which is a condition precedent for the courts taking cognizance of the offence alleged to be committed and therefore the High Court has rightly set aside the conviction for that offence. In Hori Ram Singh v. The Crown(1) the charges against a public servant were under ss. 409 and 477A, Indian Penal Code, one for dishonestly converting and misappropriating certain medicines entrusted to the public servant and the other for wilful omission with intent to defraud to record certain entries in the (1)(1949) L.R. 76 I.A.158 (2)[1939] F.C.R.159."
14. Sri Manish Goyal has relied another judgment passed by in the case of Manoj Rai and others Vs. State of Madhya Pradesh reported in 1999 (1) SCC 728. Sri Manish Goyal has further relied upon Para 9 of the judgment in the case of Dr. Kafeel @ Dr. Kafeel Ahmad Khan in Application U/S 482 No. 8735 of 2021 decided on 26.08.2021, which reads as under:-
"9& vkosnd ds fo}ku vf/koDrk us U;k;ky; dk /;ku Swaraj Thackeray Vs. State of Jharkhand & Ors. 2008 CRI. L. J. 3780 & Sarfaraz Sheikh Vs. The State of Madhya Pradesh esa izfrikfnr fof/k O;oLFkkvksa dh vksj Hkh U;k;ky; dk /;ku vkd`"V fd;k] ftuesa voj U;k;ky; ds le{k yfEcr okn dh dk;Zokgh dks vikLr djrs gq,] izdj.k dks 196 na0iz0la0 dk vuqikyu djus ds i'pkr xq.k&nks"k ij izlaKku dk vkns'k ikfjr djus gsrq izfrizsf"kr djus dk funsZ'k fn;k x;k gSA Swaraj Thackeray Vs. State of Jharkhand & Ors. 2008 CRI. L. J. 3780 esa ikfjr fu.kZ; dk izLrj 14 ,oa 15 fuEuor gS %& "14. Regarding the points raised by the petitioner that prior sanction under Section 196, CrPC was must before taking cognizance of the offences under Sections 153-A and 153-B IPC, I find that from a bare perusal of Section 196(1)(a) and (1-A)(a), quoted herein above, it is absolutely clear that there is complete bar for taking cognizance of the offences punishable under Sections 153-A, 153-B, Section 295-A or Sub-sections (1), (2) and (3) of Section 505,IPC.
In the present case, the cognizance of the offences under Sections 153-A, 153-B and 504 IPC has been taken by the learned Magistrate. There is no dispute of the fact that prior to taking cognizance of the offences alleged under Sections 153-A and 153-B IPC, no sanction either of the Central Government or of the State Government was taken. The decision cited by the counsel for the petitioner in the case of Shailbhadra Shah and Ors. v. Swami Krishna Bharati and Anr. of Gujarat High Court reported in 1981 Cr LJ 113, supports his contention that prior sanction either of the State Government or of the Central Government is necessary before taking cognizance of the offences under Sections 153-A and 153-B of the Indian Penal Code. Therefore, in such a situation, it is held that the learned Magistrate had no jurisdiction to take cognizance of the offences under Sections 153-A and 153-B of the Indian Penal Code against the petitioner in absence of any sanction as envisaged under Section 196(1)(a)(1-A)(a) CrPC. Consequently, that part of the impugned order taking cognizance for the aforesaid two offences, i.e., under Sections 153-A and 153-B, IPC only by the learned Magistrate cannot be sustained and, as such, is hereby quashed.
15. So far as for taking cognizance of the offence under Section 504 IPC, taken by the learned Magistrate, there is no such legal bar for taking cognizance of the aforesaid Section 504 IPC, and I find that the learned Magistrate after full application of mind and on consideration of the materials on record has taken cognizance of the offences under Section 504 IPC also and, therefore, the same does not require any interference by this Court."
Sarfaraz Sheikh Vs. The State of Madhya Pradesh esa ikfjr fu.kZ; dk vfUre izLrj fuEuor gS %& "The offence under sections 153-A and 153-B IPC are of the nature of promoting enmity between different groups on the ground of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity etc; or any act which is imputation, assertions THE HIGH COURT OF MADHYA PRADESH MCRC. No.174/2017 (Sarfaraz Sheikh vs. The State of M.P.) prejudicial to national-integration in place of public worship the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and as such are offence against the public at large and State. The inclusion of offence under sections 147and 149 of IPC, in the charge-sheet, in fact, are in conjunction with such offence under section 153 A and 153 B IPC are inseparable. Consequently, for want of sanction for offence under sections 153 A and 153 B of IPC as on the date of cognizance on 05.03.2016, the prosecution continued pursuant to the impugned order cannot be sustained. It is accordingly quashed. However, based on subsequent sanction on 16.08.2016, the respondent/State is always at liberty to take recourse to law for filing supplementary charge-sheet."
15. Sri Manish Goyal has further relied upon another judgment in the case of Basdeo Agarwalla Vs. King Emperor decided on 16.01.1945 and another judgment in the case of Syed Yawar Bakht Choudhury and Others Vs. The Emperor, decided on 5th February, 1940, the relevant portion of Syed Yawar Bakht Choudhury and Others Vs. The Emperor are quoted herein below:-
"In our opinion there is no force in this argument. In the charge under Section 109, I.P.C., no particular form of abetment was set out. If sanction of the Local Government under Section 196A, Criminal P.C., had been granted, there was no legal bar to the jury finding the accused guilty both under Section120B/467 I.P.C., and under Section 467/109 I.P.C., if they were satisfied that there had been the conspiracy and abetment by conspiracy. "Whether separate sentences could have been imposed is a different question with which we are not concerned. The trial proceeded almost to a conclusion on the assumption that the charge under Section 120B/467 I.P.C., had been validly framed. Evidence as to conspiracy had been led by the prosecution and been considered by the defence. "When it was discovered that no sanction under Section 196A, Criminal P.C., had been granted, the legal consequence was merely as if the charge under Section 120B/467 I.P.C., had never been framed. The accused could not be acquitted or convicted of the offence punishable under Section 120B I.P.C.. The Public Prosecutor could not withdraw under Section 494, Criminal P.C., from the prosecution under Section 120B, because there was no valid prosecution. If the Court, instead of passing an order that the charge be cancelled, had directed the jury to ignore the charge for the reason that they were not entitled to return a verdict on that charge, there could not have been even a suggestion that the jury were not entitled to consider whether the offence of abetment by conspiracy had been made out."
16. In the present case, it is obvious that the earlier trial is without jurisdiction, therefore, after obtaining sanction under Section 196 Cr.P.C. the second trial would not be barred because the sanction has been obtained first time from the Competent Authority. The basis of Section 300 (1) Cr.P.C. is that the first trial should have been before the Competent Authority to hear and determine the case and to record the verdict of conviction or acquittal. Since, the Court was not competent earlier while passing the judgment, the entire trial was vitiated and in such circumstances retrial is must because sanction has been accorded by Competent Authority.
17. The other argument advanced by Sri Goyal has also got force that trial was done in absence of sanction under Section 196 Cr.P.C. which was open for the applicant to challenge the same by quashing the entire proceeding but the remedy was not availed. Since the initiation of the trial is void-ab-initio, in absence of sanction of Competent Authority, it is now valid recourse of retrial after sanction by the Competent Authority.
18. Sri Pawan Singh Pundir, learned counsel for the applicant has submitted that he should not face double jeopardy as envisaged under Article 20(2) of the Constitution of the India. The argument has no force for the reason that in the present case trial is void ab initio and the entire proceedings done by the trial court is vitiated, therefore, resulting in nullity. The procedure established by law is to be followed and the argument of Sri Pundir cannot sustain in view of the discussion made in preceding paragraphs.
19. In the present case the applicant had never challenged the criminal proceedings on the ground of absence of the sanction of the Competent Authority. Once the Competent Authority has sanctioned the prosecution under Section 196 Cr.P.C. in pursuance of the Division Bench judgment dated 05.08.2019 (supra), retrial will start and the summons issued by the Court below is valid.
20. In view of the aforesaid legal discussions, I do not find any merit in the case, accordingly, the present application is dismissed.
21. No order as to costs.
Order Date :- 17.08.2022 Krishna*