Uttarakhand High Court
C482/699/2022 on 29 June, 2022
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
29th JUNE, 2022
CRIMINAL MISCELLANEOUS APPLICATION NO.699 of 2022
Between:
Jishan Alam ........Applicant
and
State of Uttarakhand and Another .....Respondents
Counsel for the Applicant : Mr. Mohd. Safdar.
Counsel for the State/
Respondent No.1 : Mr. Pratiroop Pandey,
learned A.G.A. for the
State.
Hon'ble Alok Kumar Verma,J.
The applicant-accused, Jishan Alam, has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 to quash the entire proceedings of Criminal Case No.5279 of 2021, "State vs. Jishan Alam", pending before the court of Chief Judicial Magistrate, Haridwar.
2. After completion of the investigation, the charge-sheet was filed under Section 295A of IPC. The learned trial court took the cognizance and passed the summoning order under Section 295A of IPC against the present applicant.
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3. According to the First Information Report, on 04.11.2020, the present applicant had made a statement with the intention of causing communal violence and disputes between two communities.
4. On 18.05.2022, Mr. Mohd. Safdar, the learned counsel for the applicant, had argued that in view of Section 196 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, "the Code"), cognizance of offence punishable under Section 295A of IPC cannot be taken except on the previous sanction of the Central Government or the State Government. After the said submissions, the learned counsel appearing for the State had sought time to get instructions on the point, as to whether, sanction as required under Section 196 of the Code has been taken or not?
5. On 27.06.2022, the learned counsel appearing for the State had submitted that the trial court has taken cognizance for the offence punishable under Section 295A of IPC without any sanction order. However, the learned counsel for the State requested two days' time to file supplementary affidavit regarding sanction.
6. Today, Mr. Pratiroop Pandey, the learned Assistant Government Advocate fairly conceded that in the present matter sanction was not given. 3
3. 7. Heard Mr. Mohd. Safdar, the learned counsel for the applicant, and, Mr. Pratiroop Pandey, the learned A.G.A. for the State.
8. Mr. Mohd. Safdar, the learned counsel for the applicant-accused has relied upon a judgment of this Court in "Dr. Bharam Singh vs. State of Uttaranchal and Others, 2010 SCC OnLine Utt 2276". In the said matter, this High Court observed that prior sanction of the State before taking cognizance in the offence under Section 295A of IPC is necessary and without sanction, no cognizance can be taken by the court, irrespective of the case being a State case or a complaint case. The offences mentioned in Section 196 of the Code, for which, a prior sanction has been made necessary, because, these offences relate to public peace, tranquility and communal harmony. These offences are not only of a serious nature but have a fallout on public peace, therefore, a prior sanction of the Government has been made mandatory, as sometimes mere prosecution itself may generate communal disharmony. Offence relating to Section 295A of IPC is of such a nature.
9. Section 295A of IPC reads as under:-
"Section 295A:- Deliberate and malicious acts, intended to outrage religious feelings of any class by 4 insulting its religion or religious beliefs.- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
10. In the instant facts, admittedly, there is no sanction as envisaged under Section 196 of the Code.
11. Section 196 of the Code reads as under:-
"Section 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, 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 5
(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.
(1A) 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 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:
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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."
12. "No Court shall take cognizance of" means that there is an absolute bar. Therefore, sanction is mandatory for cognizance of offence punishable under Section 295A of IPC, and, where Magistrate takes cognizance without sanction, the prosecution is liable to be quashed.
13. Section 482 of the Code envisages three circumstances in which the inherent jurisdiction may be exercised, namely, "to give effect to an order under the Code, or, to prevent abuse of the process of any Court, or, to secure the ends of justice".
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14. Section 482 of the Code reads as follows:-
"Section 482:- Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
15. Taking the cognizance for the offence punishable under Section 295A of IPC without sanction is bad in law. Therefore, this Court is of the view that the prosecution in question is an abuse of legal process.
16. Resultantly, the entire proceedings of Criminal Case No.5279 of 2021, "State vs. Jishan Alam", pending before the Court of Chief Judicial Magistrate, Haridwar, are liable to be quashed. Consequently, the Criminal Miscellaneous Application (No.699 of 2022), filed under Section 482 of the Code is allowed and the entire proceedings of the said Criminal Case No.5279 of 2021, "State vs. Jishan Alam", pending before the Court of Chief Judicial Magistrate, Haridwar, are quashed.
17. Mr. Pratiroop Pandey, the learned counsel for the State requested one week time to submit an action 8 taken report, as directed by the Co-ordinate Bench on 24.05.2022.
18. List on 08.07.2022.
___________________ ALOK KUMAR VERMA, J.
Dated: 29th June, 2022 Neha