Punjab-Haryana High Court
State Of Punjab vs Sunder Singh And Ors. on 6 May, 1991
Equivalent citations: 1992CRILJ1330
JUDGMENT A.L. Bahri, J.
1. The Judicial Magistrate 1st Class, Amritsar on September 1, 1982 passed the impugned order acquitting Sunder Singh and others, accused for want of sanction required under Section 196 of the Code of Criminal Procedure with the further observation that the prosecution would be at liberty to launch the prosecution against the accused after obtaining the necessary sanction. The State has come up in appeal.
2. On January 25, 1972 Shri Amar Singh, a P.C.S. Officer of the State, while acting as Audit Officer of Societies at Amritsar made the report that Rajinder Singh, Chairman and other officials of Amritsar Central Co-operative Bank got sanctioned loan to the tune of Rs. 1,50,000/ - after preparing fake credit files in the name of Puran Singh etc. In this report, the total amount embezzled was to the tune of Rs. 2,35,000/- for which details were given therein. On the basis of this report, a case was registered with the police on May 15, 1972. After investigation was completed, report under Section 173, Code of Criminal Procedure was filed in the Court on October 13, 1978. The trial Magistrate furnished copies of the documents relied upon by the prosecution to the accused on July 5, 1979 and subsequently framed charges against them under Sections 409, 465, 467, 471 and Section 120B, Indian Penal Code. The trial proceeded and the prosecution produced 11 witnesses. It was at that stage that an application was filed on behalf of the accused on July 31, 1982 stating therein that the prosecution has not procured and produced the sanction of the prescribed authority as required under Section 196A of the Code of Criminal Procedure, hereinafter referred to as the 'Code' and the case could not proceed. On that application, the impugned order was passed.
Section 196 of the Code reads as under :--
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 295A 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 the State Government."
Sub-sections (1-A) and (2) read as under :--
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, 1860 (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 proceedings;
Provided that where the criminal conspiracy is one to which the provisions of Section 195 apply, no such consent shall be necessary."
The aforesaid provision, as amended, came to force w.e.f. September 23, 1978. Otherwise, in Sub-section (2) the words "cognizable offence" appeared, which have been substituted by the words "an offence" as per amendment dated December 18, 1978. The Division Bench of this Court in Nasib Singh v. State of Punjab, (1972) 74 Pun LR 585, where for some of the offences, sanction of the appropriate authority was required, held that without sanction even for other offences, case could not proceed. The aforesaid view was followed in Hari Chand Jain v. State of Punjab, 1982 Chand Cri C (HC) 183. It is on the basis of these decisions that the impugned order was passed by the trial Magistrate.
3. The contention of Shri S.K. Sharma, Deputy Advocate General for the State is that the approach of the trial magistrate in coming to the conclusion that sanction was required under Section 196A of the Code is not correct in view of the amendment of Sub-section (2) of Section 196 of the Code. There is force in this contention. The relevant time the Court was to take cognizance of an offence was when it applied its mind to the facts of the case to proceed therewith. Though challan was presented in the present case in October, 1978, however, it was on July 5, 1979 that the copies of the documents on which the prosecution wanted to rely, were supplied to the accused and subsequently charge was framed on November 15, 1980. When the charge was framed, obviously, the Court had taken cognizance of the case. At the most, it can be said that on July 5, 1979, the Court took cognizance when copies of the documents relied upon by the prosecution were delivered to the accused. On that case, amendment of Sub-section (2) of Section 196 of the Code had already been made. A perusal of Sub-sections (1-A) and (2) of Section 196 of the Code, as reproduced above, would show that sanction was not required for criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. The offences for which the accused were charged in the present case provide imprisonment with a term of two years and above.
4. May be when the challan was presented, sanction of the appropriate authority for some of the offences was required and if immediately thereafter an application had been filed on behalf of the accused and before the amendment was made relying upon the decisions cited before the trial Magistrate, the accused could be discharged with the observation that the prosecution could file the challan again after obtaining necessary sanction. As a matter of fact, the prosecution could produce sanction during the trial also. If the prosecution was required to obtain sanction and then refile the challan even if the law had been amended in the mean time, the challan could be represented without obtaining the sanction. Even after the impugned order has been passed even now, as the law stands, no sanction is required as the offences, for which the accused are to be prosecuted, provide sentence of two years and above.
5. Requirement of sanction under Section 196 of the Code is procedural and not substantive. The Courts are required to give effect to the procedural law at all the stages of the trial. However, substantive law is to apply on the date offence was committed.
6. For the reasons recorded above, this appeal is accepted and the impugned order dated 1-9-1982 is set aside. The trial Magistrate is directed to proceed with the trial in accordance with law as no sanction is required now for prosecuting the accused for the offences of conspiracy as Sub-clause (2) of Section 196 of the Code stands amended.
7. The parties, through their counsel are directed to appear before the trial Magistrate on 27th May, 1991. Since the matter is pending for a pretty long time, the trial Magistrate should give preference to this case for expeditious disposal.