Karnataka High Court
Dr. Mohammed Umer vs The State Of Karnataka on 21 November, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 201069 of 2024
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 201069 OF 2024
BETWEEN:
1. DR. MOHAMMED UMER
S/O NAZIR ATTAR,
AGED ABOUT 35 YEARS,
OCCUPATION: DOCTOR,
RESIDENCE OF: AL-SHIFA, BADI KAMAN,
BIJAPUR-586 101.
2. MR. SALIM
S/O SULEMAN MADIWALE,
AGED ABOUT 49 YEARS,
OCCUPATION: BUSINESS,
RESIDENCE OF: 3979/B1,
KAKTIVEES GALLI,
BELAGAVI-590 001.
3. MR. ABBASALI
S/O FAKURDDIN YARNAL,
AGED ABOUT 32 YEARS,
Digitally signed by OCCUPATION: BUSINESS,
R HEMALATHA
RESIDENCE OF: H.NO.4267, JALGAR GALLI,
Location: HIGH
COURT OF BELAGAVI-590 001.
KARNATAKA ...PETITIONERS
(BY SRI. ZAHEERABBAS M. HATTARKI A.M., MULLA AND
M.D. SANADI, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585 103.
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NC: 2024:KHC-K:8685
CRL.P No. 201069 of 2024
2. POLICE SUB-INSPECTOR
GOLGUMBAZ POLICE STATION,
VIJAYAPURA.
...RESPONDENTS
(BY SMT. ANITHA M. REDDY, HCGP)
THIS CRL.P IS FILED U/S. 482 OF CR.P.C. (OLD)/ U/SEC.
528 OF BNSS ACT (NEW) BY THE ADVOCATE FOR THE
PETITIONER PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C NO. 560/2014 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 153A, 153B, 120B, 124A, R/W
SECTION 149 OF IPC AND U/S. 11, 13, 15 OF UNLAWFUL
ACTIVITIES AND PREVENTION ACT, 1967 AND AMENDED
ORDINANCE 2004 WHICH IS PENDING ON THE FILE OF
PRINCIPLE CIVIL JUDGE AND CJM VIJAYAPURA AND ALL
OTHER PROCEEDINGS ARISING THERE FROM AGAINST THE
PETITIONERS / ACCUSED NO.4, 7 AND 11 AND ALSO ALL THE
PROCEEDINGS ARISING FROM GOLGUMBAZ P.S CRIME NO.
260/2008 AGAINST THE PETITIONER / ACCUSED NO.4, 7 AND
11 TO MEET THE ENDS OF JUSTICE.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
This petition under Section 482 of Cr.P.C. is filed by the petitioners - accused Nos.4, 7 and 11 herein challenging the proceedings in C.C.No.560/2014 on the file of the Prl. Civil Judge and CJM, at Vijayapura, for the offences punishable under Sections 153-A, 153-B, 120-B, 124-A read with Section 149 of IPC and Sections 11, 13, 15 of Unlawful Activities and Prevention Act, 1967 and Amended Ordinance 2004, pending on the file of the learned Principal Civil Judge and CJM, at Vijayapura.
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2. The case of the prosecution is that, the accused No.1 was the active member of prohibited association namely 'SIMI', and he along with accused Nos.2 to 11 were convening the meetings in Masjid and other places and was receiving money from the public, for development of Islam organization, with an intention to take revenge against the Hindus and decided to celebrate 6th December 2008 as Babri Masjid Black Day and also with an intention to create communal disharmony, he printed handbills with the assistance of accused Nos.12 to 15 in Image Printing Press, Belgavi, which are instigating the communal feelings and created conspiracy and also sent the handbills to accused No.8 to 11 and others for distribution and to paste them in public places and thereby instigating the public against Government of India by disturbing communal disharmony. On 04.12.2008 at about 06.00 a.m. accused pasted the stickers containing facts which raises communal disharmony and thereby committed the aforesaid offences.
3. The charge-sheet was split-up against accused No.1. The learned Sessions Judge, conducted the trial and after appreciating the evidence on record acquitted the accused No.1 of the offences alleged against him on the ground that, the cognizance was taken by the learned Magistrate in the absence of sanction accorded by the competent authority under Section 196 of Cr.P.C. and also the name of accused No.1 was not found in the sanction order.
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4. Heard the learned counsel for the petitioners - accused herein and the learned High Court Government Pleader for the respondents.
5. The learned counsel for the petitioners - accused herein submits that, the sanction having not been accorded, to prosecute the petitioners as specified under Section 196 of Cr.P.C., the cognizance taken by the learned Magistrate stands vitiated. The continuation of criminal proceedings as against the petitioners, will be an abuse of process of law.
6. The learned High Court Government Pleader for the respondents submits that, whether the sanction was accorded to prosecute the petitioners - accused herein, or not is a matter which requires to be considered at the time of trial. At this stage, the same cannot be considered and sought for dismissal of the petition.
7. Considered the submissions of the learned counsel for the parties and perused the records.
8. Perusal of the judgment dated 30.08.2017 passed by the I Additional District and Sessions Judge, Vijayapura in Sessions Case No.36/2010 discloses that, the accused No.1 has been acquitted, by making following observations:- Page 159 Para No.33. "33. This sanction was accorded on 12.05.2009. As discussed earlier, the Court shall not take cognizance of the above said offences without prior sanction -5- NC: 2024:KHC-K:8685 CRL.P No. 201069 of 2024 from the concerned Government or District Magistrate as the case may be. In the instant case, the learned JMFC has taken cognizance of the offences based on the charge sheet on 18.03.2009. Thus, cognizance was taken prior to sanction accorded by the State Government. Hence, as it is, it is bad in law. Furthermore, name of the accused was not at all mentioned either in the sanction order or in the complaint. Thus, apparently there is no material to show that the Government had applied its mind before granting such sanction."
9. In this case, the learned Magistrate has taken the cognizance of the aforesaid offences in the absence of sanction accorded by the State Government/Central Government as specified under Section 196 of Cr.P.C. and also under Section 45 of the Unlawful Activities and Prevention Act, 1967. The sanction accorded after the cognizance taken by the learned Magistrate, does not contains the name of the accused herein. In the absence of sanction, the cognizance taken by the learned Magistrate stands vitiated for non-compliance of mandatory provision under Section 196 of Cr.P.C. and also under Section 45 of the Unlawful Activities and Prevention Act, 1967. Hence, the continuation of the criminal proceeding as against the petitioners - accused herein, will be an abuse of process of law, since the probability of conviction of the petitioners - accused herein, is remote and bleak. Accordingly, I pass the following;
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the file of learned Principal Civil Judge and CJM, Vijayapura, insofar as it relates to accused No.4, 7 and 11, is hereby quashed, arising out of Crime No.260/2008 registered by Golgumbaz Police Station, Vijayapura.
iii) The respondent No.2 is hereby directed to withdraw LOC, if any issued against the petitioners.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE BKM