Madhya Pradesh High Court
Sarfaraz Sheikh vs The State Of Madhya Pradesh on 17 April, 2018
THE HIGH COURT OF MADHYA PRADESH
1
MCRC. No.174/2017
(Sarfaraz Sheikh vs. The State of M.P.)
Indore, dated : 17.04.2018
Shri A.M. Mathur, learned senior counsel with Shri
Abhinav Dhanodkar, learned counsel for the applicant.
Ms. Bharti Lakkad, learned Public Prosecutor for the
respondent/State.
This application under Section 482 Cr.P.C. has been filed seeking quashment of criminal proceedings committed to the trial court by the Additional Sessions Judge, Dhar on 03.10.2016 passed in Sessions Trial No.199/2016 in the light of the order of the coordinate Bench of this Court on 12.09.2016 passed in M.Cr.C. No.6979/2016 paving way for prosecution of applicant under sections 147, 153/149, 153-A/149 and 188 IPC.
Learned senior counsel has made following submissions :-
(i) The offence under sections 124-A and 153-A IPC alongwith offence under sections 147, 153, 149 and 188 IPC were sought to be tried by the Judicial Magistrate First Class without sanction of the competent authority i.e. State Government as contemplated under section 196 Cr.P.C. The applicant, therefore, challenged the sustainability of the proceedings before this Court by filing M.Cr.C. No.6979/2016. This Court while accepting the contention, as aforesaid though discharged the applicant from offence under section 124-A IPC for want of sanction, but due to slip, the entire prosecution was not quashed related to offence under section 153-A IPC as well as other sections, viz; 147, 149 and 188 IPC. Therefore, the applicant had to again approach this Court by filing the instant M.Cr.C., seeking quashment of the proceedings.
(ii) Though the prior sanction is required for taking cognizance of offence under sections 153-A and 124-A IPC, but THE HIGH COURT OF MADHYA PRADESH 2 MCRC. No.174/2017 (Sarfaraz Sheikh vs. The State of M.P.) as the other offence alleged against the applicant that of 'formation of unlawful assembly' with intent to rioting promoting enmity between groups on the ground of objection raised etc; are in connection with the aforesaid offence, therefore, even offence under the said sections could not be taken cognizance for want of sanction. He has placed reliance upon the judgment of the High Court of Punjab and Haryana in the case of Pawan Kumar vs. Ruldu Ram; 1982 Law Suit (P&H) 143 to bolster his submission and relevant portion of order reads as under :-
"8. As regards the offence under Section 504, Penal Code, it appears to be based on the assertion in the complaint that the petitioner had abused the complainant. Abusing a citizen by a public servant certainly does not come within the performance of lawer's duty as such. But, where the public servant is prosecuted simultaneously for more than one offence and if any offence out of them is such which requires sanction, then without the prior sanction of the competent authority, the Magistrate cannot take cognizance of all the offences against that public servant and try him for those offences."
Under such circumstances, learned senior counsel prays for quashment of the criminal proceedings.
Per contra, learned Public Prosecutor submits that though the Court had taken cognizance for the offence on 05.03.2016 without there being sanction of the State Government as required under section 196 Cr.P.C., nevertheless, the State Government had accorded sanction on 16.08.2016, therefore, for want of sanction, the criminal proceedings cannot be quashed. As the sanction was so accorded on 16.08.2016, defect, if any, stands cured. Learned counsel further submits that due to inadvertence, the fact of sanction was not brought to the notice of the coordinate Bench while disposing of M.Cr.C. No.6979/2016 on 12.09.2016, but in any case, that judgment is not of much relevance to the facts in hand as this Court had discharged the THE HIGH COURT OF MADHYA PRADESH 3 MCRC. No.174/2017 (Sarfaraz Sheikh vs. The State of M.P.) applicant from offence under section 124-A IPC, but not under sections 153-A and 153-B IPC for which sanction has been accorded by the State Government. With aforesaid submissions, learned counsel prays for dismissal of the application.
Heard.
The two-fold question arises for consideration :-
(i) Whether in absence of the sanction of the State Government cognizance of an offence by competent court can be taken for an offence against delinquent as contemplated under section 196 Cr.P.C., if not, whether sanction accorded subsequently shall legalize the proceedings following the date of cognizance; and
(ii) Whether offence under sections 147, 149 and 188 IPC alleged alongwith offence 124-A, 153-A and 153-B can be tried without sanction being accorded by the State Government for offence under sections 124-A, 153-A and 153-B IPC as required under section 196 Cr.P.C.
For ready reference section 196 Cr.P.C. is quoted 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."
A bare perusal thereof suggests that no Court shall take cognizance of any offences punishable under Chapter 6 (124-A) or under section 153-A .........."
THE HIGH COURT OF MADHYA PRADESH 4 MCRC. No.174/2017 (Sarfaraz Sheikh vs. The State of M.P.) Admittedly, no sanction was accorded by the State Government as on the date, when the trial court had taken cognizance of the aforesaid offence under sections 147, 153/149, 153 A/149 and 188 IPC. As such, the cognizance so taken was in excess of the jurisdiction of the trial court and has been rightly set aside by the coordinate Bench of this Court while deciding M.Cr.C. No.6979/2016 (supra). The contention of respondent's/State's counsel that subsequently sanction being accorded on 16.08.2016 the defect of want of sanction for offence under sections 153-A and 153-B IPC stands cured and proceedings cannot be continued for the simple reason that the requirement of sanction by State Government as contemplated under section 196 Cr.P.C. is before cognizance is taken and not subsequently. It is not an incidence of procedural irregularity which could be remedied retrospectively.
Taking cognizance of an offence kicks starts the prosecution of a delinquent and involves a process of interference with his personal liberty, therefore, the requirement of prior sanction of the State Government is a basic jurisdictional fact before further action may be taken for taking cognizance of the offence. Hence, this Court is unable to accept the contention that subsequent sanction accorded on 16.08.2016 shall legalize the prosecution initiated after taking cognizance on 05.03.2016, hence, contention is rejected.
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 5 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 147 and 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.
With the aforesaid, this petition stands disposed of.
(Rohit Arya) Judge Kafeel Digitally signed by Kafeel Ahmed Ansari Date: 2018.04.22 15:10:59 +05'30'