Calcutta High Court (Appellete Side)
Aveek Sarkar vs State Of West Bengal & Anr on 1 April, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar CRR 2337 of 2013 Aveek Sarkar
-vs.-
State of West Bengal & Anr.
For the Petitioner : Mr. Sandipan Ganguly
Mr. Somopriya Chowdhury
Mr. Parth Basu
For the State : Mr. Manjit Singh, Ld. P.P.
Mr. Amartya Ghosh
Heard on : 13.01.2015; 19.01.2015 & 29.01.2015
Judgement on : 01/04/2015
Subrata Talukdar, J.: In this revisional application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure the petitioner challenges the proceedings in CGR Case No. 1200 of 2012 under Section 295A of the Indian Penal code pending before the Ld. Chief Judicial Magistrate (for short CJM), South 24 Parganas at Alipore arising out of Garden Reach Police Station Case No. 53 dated 20th March, 2012.
The petitioner also challenges the order dated 11th April, 2013 passed by the Ld. CJM, South 24 Parganas at Alipore directing the issuance of warrant of arrest against him pursuant to earlier order dated 22nd November, 2012.
It is, inter alia, pleaded in CRR 2337 of 2013 that the petitioner is working for gain as the Editor of the English daily newspaper, 'The Telegraph' which is owned by ABP Pvt. Ltd. The petitioner is also the Editor of the Bengali news daily, 'Ananda Bazar Patrika', as also the Director of ABP Pvt. Ltd.
It is further pleaded that on 19th March, 2012 in the supplementary portion of 'The Telegraph' styled as 'T2', an already existing internet image was printed. The said internet image created a reaction amongst members of a particular religious community and thereafter a First Information Report was lodged in connection with the publication in the 'T2' dated 19th March, 2012.
The letter of complaint arising out of the said publication was submitted to the Officer-in-Charge, Garden Reach Police Station by the OP2 in this revisional application and was dated 20th March, 2012. The letter of complaint alleged offences under Sections 295A/120B of the Indian Penal Code and was registered as FIR being Garden Reach Police Station Case No. 53 dated 20th March, 2012.
It is further pleaded that pursuant to the publication on 19th March, 2012, on the next date i.e. on 20th March, 2012 an unconditional apology was tendered to the public at large by the newspaper. The said apology was repeated on 21st March, 2012 and on 23rd March, 2012.
At the same time the petitioner filed an application under Section 438 CrPC before this Hon'ble Court vide CRM 5701 of 2012 and by order dated 4th April, 2012 the petitioner was granted the privilege of pre-arrest bail with conditions.
The investigation of the case culminated in chargesheet no. 155 dated 19th November, 2012 indicating that a case for trial has been made out against the petitioner under Section 295A IPC. By order dated 22nd November, 2012 the Ld. CJM was pleased to take cognizance of offence under Section 295A IPC and on the basis of the fact that the petitioner was described to be an absconder, issued warrant of arrest. Challenging the issuance of the warrant of arrest by order dated 11th April, 2013 and the pendency of the proceedings before the Ld. CJM, the present CRR 2337 of 2013 has been preferred.
A short point of law has been has been raised by Sri Sandipan Ganguly, Ld. Counsel appearing for the petitioner, that is whether cognizance can be taken by the Ld. Magistrate of an offence under Section 295A IPC without obtaining the prior sanction of the State Government. Sri Ganguly argues that from the four corners of the records of the investigation culminating in the filing of the chargesheet there is no reference to the grant of sanction by the State Government.
Ld. Counsel also takes this Court to the order of the Ld. Magistrate dated 22nd November, 2012 taking cognizance of the offence under Section 295A IPC. Ld. Counsel further submits that the order taking cognizance makes no mention of any prior sanction by the State Government.
Developing the above noted argument further Sri Ganguly relies on the provisions of Section 295A IPC which reads as follows:-
"295A. Deliberate and malicious acts intended to outrage religious feelings of any class by 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."
Ld. Counsel next places reliance on Section 196 (1) CrPC which reads as follows:-
"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 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 of the State Government. "
Drawing inspiration from a conjoint reading of the two provisions as noted above Sri Ganguly argues that no court is entitled to take cognizance of an offence under Section 295A IPC except with the previous sanction of the State Government. According to Sri Ganguly admittedly in the facts of the present case there is no whisper of the taking of sanction by the prosecution and recorded by the Ld. Magistrate prior to taking cognizance of the offence. Such irregularity touches at the root of the proceedings which are liable to be quashed on such sole ground, Ld. Counsel argues.
Ld. Counsel further points out that the requirement of previous sanction is all the more necessary in view of the State itself being the prosecutor in the case.
In support of his submissions Sri Ganguly relies upon the following decisions:-
1981 Cr LJ 113 in the matter of Shalibhadra Shah & Ors. vs. Swami Krishna Bharati & Anr.;
1999 SCC (Cri) 98 in the matter of Manoj Rai & Ors. vs. State of M.P.;
On the strength of the above noted authorities Sri Ganguly emphasises that the requirement of sanction is the sine qua non of a prosecution under Section 295A IPC and the absence of sanction vitiates the entire proceedings itself. Ld. Counsel points out that such irregularity is not curable.
Per contra, Sri Manjit Singh, Ld. Public Prosecutor assisted by Sri Amartya Ghosh, Ld. Junior Advocate arguing on behalf of the State-Opposite party relies on the provisions of Section 460 CrPC. Section 460 (sub-section (e) reads as follows:-
"460. Irregularities which do not vitiate proceedings.- If any Magistrate not empowered by law to do any of the following things, namely:
(a) to issue a .....................
(e) to take cognizance of an offence under clause (a) or clause
(b) of sub-section (1) of section 306;
erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered."
Drawing inspiration from the above noted section Ld. Public Prosecutor argues that the failure to obtain sanction is not fatal to the proceedings. Ld. Counsel submits that the power to take cognizance of an offence by Ld. Magistrate is also elucidated in Section 190 CrPC. Section 190 (1) (a) CrPC empowers the Ld. Magistrate of the first class or the second class to take cognizance of an offence upon receiving a complaint. Section 190 (1) (b) CrPC permits cognizance to be taken upon a report of such a fact.
Next taking this Court to the provisions of Section 460 CrPC Ld. Public Prosecutor argues that the cognizance of an offence under Clause-(a) or Clause-(b) of sub-section 1 of Section 190 in the absence of sanction by a Ld. Magistrate is an irregularity which does not vitiate the proceedings.
Producing the case diary before this Court Ld. Public Prosecutor submits that although the absence of sanction is palpable from the records and such omission being curable the Investigating Officer made a prayer before the Ld. CJM on 5th July, 2013 and, on the said date the Ld. CJM was pleased to allow the prayer of the Investigating Officer to obtain the sanction.
On the above premises Ld. Public Prosecutor argues that having regard to the gravity of the offence, the proceedings ought to be allowed to continue with the Investigating Officer taking steps to fill up the omission with regard to the sanction on the basis of the permission granted by the Ld. CJM.
Having heard the parties and considering the materials on record this Court notices that the language of Section 196 CrPC is specific and couched in mandatory terms. Under the provisions of Section 196 CrPC no court has been given the authority to take cognizance except with the previous sanction of the State Government. To the mind of this Court having regard to the language of Section 196 CrPC (supra) the use of the expressions 'shall' and 'previous' make the intention of the legislature clear. Section 295A IPC being one of the categories of offences specified by Section 196 CrPC and having regard to the impact of a charge under Section 295A IPC on the public at large, the requirement of a previous (emphasis supplied) sanction has been embodied under Section 196 CrPC. Therefore, in the absence of such previous sanction and with the use of the expression 'shall', no court has been given the authority to take cognizance.
Taking note of the argument of the Ld. Public Prosecutor this Court is of the view that Section 196 appears at Chapter XIV of the CrPC in which the opening Section is Section 190. It is noticed that while Section 190 specifies the genus of the procedure to be adopted for taking cognizance, Section 196 is a species of such genus specifying the particular procedure for a particular offence.
The failure of the Investigating Authority and of the Ld. CJM to notice the absence of previous sanction falls within the prohibition enshrined in Section 196 CrPC and cannot be brought within the pale of Section 460 (e) CrPC which would apply to the generality of procedure covered under Section 190 (a) or (b) of sub-Section (1) CrPC.
It is also clarified that the prohibition under Section 196 CrPC takes into effect at the stage of taking cognizance. The argument of the Ld. Public Prosecutor, if worthy of acceptance, may be confined to the protection under Section 460 CrPC of a proceeding still at the stage of investigation or complaint prior to taking cognizance under Section 190 (1) (a) or (b) of the CrPC. However, the moment cognizance is taken of the offence specified, this Court is required to notice the prohibition specifically grafted under Section 196 CrPC.
For the above reasons the proceeding being CGR Case No. 1200 of 2012 pending before the Ld. CJM, South 24-Parganas at Alipore arising out of Garden Reach Police Station Case No. 53 dated 28th March, 2012 and all connected or consequential orders passed therein are quashed qua the petitioner.
CRR 2337 of 2013 stands accordingly allowed.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)