Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 27 September, 2024
Page No.# 1/5
GAHC010092202024
2024:GAU-AS:9778
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./546/2024
TAPAN PHUKAN AND 2 ORS.
S/O MILESWAR PHUKAN
VILL- SOLMORIA
P.S. LALUK
DIST.LAKHIMPUR, ASSAM
2: MINTU BORAH
S/O SRI NANDESWAR BORAH
VILL- PHULBARI BETBARI
P.S. LALUK
DIST. LAKHIMPUR
ASSAM
3: SRI RAJIB SAIKIA @ JAN
S/O INDESWAR SAIKIA
VILLL- LATHOW
P.S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR A KHANIKAR, R L CHUTIA
Advocate for the Respondent : PP, ASSAM,
Page No.# 2/5
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT
Date : 27-09-2024 Heard Mr. A. Khanikar, learned counsel for the petitioner and Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the respondent State.
2. The petitioners Tapan Phukan, Mintu Borah and Sri Rajib Saikia have filed this application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC for short) challenging the order dated 28.03.2023 passed by the Sub-Divisional Judicial Magistrate (S) Lakhimpur, North Lakhimpur [SDJM(S) for short] in G.R. Case No. 399/2010 under Sections 120/121(A) of Indian Penal Code, 1860 (IPC for short) read with Section 10/13 of the Unlawful Activities (Prevention) Act, 1967 [U.A.(P) Act for short] arising out of North Lakhimpur Police Station Case No. 190/2010.
3. The FIR unfolds that on the night of 06.04.2010, the Officer-In-Charge of North Lakhimpur Police Station along with the police personnel including CRPF personnel were on patrolling duty on the establishment day of ULFA. In the intervening night at about 2 AM midnight, one ULFA member was arrested while he was trying to hoist four ULFA flags. As the outfit is a banned outfit, the flags were seized from the arrested person and the arrested person, Sri Mintu Borah, petitioner No. 2 admitted that the other petitioners were also present at the time they attempted to hoist the flags. The other petitioners managed to escape.
4. The police registered this case and embarked upon the investigation and finally submitted charge sheet on 24.11.2021. This case was transferred for disposal and on 28.03.2023, the learned SDJM (S) took cognizance against the petitioners without jurisdiction and summonses were issued against the petitioners in violation of the existing law. It is contended by the learned counsel for the petitioners that before taking cognizance, prosecution sanction has to be taken from the competent authority, but in the instant case, cognizance was taken in absence of prosecution sanction. It is further averred that charge sheet has also been laid without the prosecution sanction. The case is pending at the stage of Page No.# 3/5 appearance. In violation of Section 196 of CrPC, the Court has proceeded against the petitioners. The Court was apprised by the petitioners relating to lack of prosecution sanction. The petitioners have prayed not only to quash the order dated 28.03.2023 passed by the learned SDJM (S) in G.R. Case No. 399/2010 but also to quash the entire proceedings.
5. Learned counsel for the petitioner Mr. A. Khanikar has relied on the decision of this Court in Pobitra Phukan and others vs. The State of Assam and another in Criminal Petition No. 180/2022 wherein vide order dated 19.05.2023 it was observed that :-
"11. A bare perusal of the said provision indicates that without previous sanction of the Central Government or the State Government, no Court shall take cognizance of 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 a criminal conspiracy to commit such offence, or any such abetment, as is described in section 108(A) of the Indian Penal Code.
12. Here in this case, it appears from the record of the learned court below that charge sheet has been submitted under Sections 120(B)/121/121(A)/122/387 of the IPC. And though Section 10/13 of the UA (P) Act has not been mentioned in the charge sheet, the Investigating Officer, in no uncertain terms, stated that during investigation, he also found evidence against the accused persons for commission of the offences under the U.A.(P) Act. And as mandated by Section 196 of the Cr.P.C., prosecution sanction is a must for taking cognizance of the offences under Sections 120(B)/121/121(A)/122 of the IPC, as the same are against the State. Further, sanction is also required for prosecution of the accused persons under Section 10/13 of the UA (P) Act. Admittedly, no prosecution sanction has been granted till date either to prosecute the petitioners for commission of the offences under Sections 120(B)/121/121(A)/122 IPC, or for commission of the offences under Section 10/13 of the UA (P) Act. From the letter dated 10.09.2013, which is available in the record of the learned court below it appears that the Superintendent of Police, North Lakhimpur, has approached the Deputy Inspector General of Police, NR, Assam, Tezpur, to move the competent authority for according prosecution sanction to prosecute the accused persons under section 10/13 of the U.A.(P) Act only. No prayer appears to be made to the competent authority for according sanction under section 196 of the Cr.P.C. to prosecute the petitioners under sections 120(B)/121/121(A)/122 IPC.
13. It also appears from the record that the learned Court below has taken cognizance of the offence under Sections 120(B)/121/121(A)/122 IPC, without prosecution sanction, ignoring the mandate of section 196 Cr.P.C. Moreover, the impugned order is silent as regards the offences under the U.A.(P) Act. It is fact that the learned court below had taken cognizance against the petitioners under section 387 IPC, where sanction is not necessary. But inclusion of section 387 IPC in the charge sheet are in conjunction with such offence under section Page No.# 4/5 120(B)/121/121(A)/122 IPC are inseperable. This being the position, both the impugned orders, dated 11.03.2019 and 20.12.2021, have failed to withstand the test of legal scrutiny. And as such the same requires interference of this Court."
6. Learned Additional Public Prosecutor Ms. S. Jahan has relied on the decision of the Hon'ble Supreme Court in Dharmesh vs. State of Gujarat reported in AIR 2002 SC 2784 (Manu/SC/0624/2002) wherein it has been observed that :-
"7. We are not inclined to discuss the issue further and express our opinion on the question formulated in the proceeding paragraph. We are of the view that it is not a fit case to interfere by grating leave in exercise of jurisdiction under Article 136. Firstly, as already noticed, the petitioner did not choose to raise the objection regarding sanction either before the Magistrate or even before the Sessions Court. The only point urged before the learned Sessions Judge in the application for discharge was that there is no evidence even prima facie to connect the accused with the offence. The contention regarding non-production of the order of sanction before the Magistrate was urged for the first time in the Revision filed in the High Court. Even then, we could have considered this contention, if substantial relief could be granted to the petitioner or if injustice could be averted. Assuming that the petitioner is right in his contention, at best, the matter has to be sent back to the Magistrate to go through a fresh process of committal after receiving the sanction order filed by the prosecution. In any case, the matter would have to come up to the Sessions Court again. The compliance with the formality would only result in further delay in holding the trial, with any corresponding advantage to the petitioner, Such a situation should not be permitted to happen while exercising the jurisdiction under Article 136, more so when the petitioner inexplicable failed to raise the objection at the earliest. Evidently, he choose to raise the objections in piecemeal without apparent justification. For these reasons, the petition is dismissed."
7. Learned Additional Public Prosecutor has also relied on the decision of the High Court of Judicature at Allahabad in Mohd Zuber vs. State of U.P. reported in (2005) 0 Supreme (All) 1971 wherein it has been observed that :
"(6) In the instant case, it appears that the learned counsel for the applicants did not raise the question of sanction either before the learned Magistrate nor before the learned Sessions Judge but has directly approached this Court, it was for the applicants to raise objection before the magistrate at the stage of committal or before the learned Sessions Judge instead of directly invoking the inherent jurisdiction under section 482 Cr.P.C. No doubt, the sanction required under section 196(1) Cr.P.C. is prerequisite but it is for the applicants to raise their objection at Page No.# 5/5 the stage of taking cognizance, or at the stage of committal. It is apparent that the applicants have not raised any objection whatsoever and therefore, I am not inclined to quash the proceedings on this ground alone."
8. I have scrutinized the Trial Court Records. Charge sheet was laid against the petitioners under Sections 120/121(A) IPC. Vide the impugned order dated 28.03.2023, cognizance was taken by the learned SDJM (S), Lakhimpur under Section 120/121(A) IPC. The Trial Court Records and the order of the learned SDJM(S) does not at all reveal that the issue was raised before the Magistrate relating to prosecution sanction as mandated 196 (1)(a) of CrPC. Even then, the petitioners have opportunity to raise the issue at the time of committal of the case as well as at the time of framing of charges.
9. There is indeed a prima facie case against the petitioners. In the light of the decision of the Hon'ble Supreme Court in the case of Dharmesh (supra), it is held that the petitioners did not raise the question of sanction either before the Magistrate or before the learned Sessions Judge but has directly approached this Court. It was for the petitioners to raise objection before the Magistrate. Instead of directly invoking the inherent jurisdiction under Section 482 CrPC despite the fact that Section 196(1)(a) of CrPC is prerequisite, I deem it appropriate to dismiss the petition at this juncture.
10. Therefore, petition is rejected at this stage. However, the petitioners are at liberty to raise the issue relating to prosecution sanction at any appropriate stage.
11. In terms of the above observation, this Criminal Petition stands disposed of.
JUDGE Comparing Assistant