Gauhati High Court
Manjit Mahanta vs The State Of Assam And Anr on 2 January, 2023
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/4
GAHC010268952022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1349/2022
MANJIT MAHANTA
S/O- LATE CHARU MAHANTA,
R/O- H. NO-31,
GEETANAGAR, ZOO NARENGI ROAD,
P.S- GEETANAGAR, GUWAHATI, KAMRUP(M), ASSAM, PIN-781024
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY PP, ASSAM
2:BITUL CHETIA
APS
S/O- JOY CHETIA
DSP
(HEADQUARTER)
TINSUKIA
ASSA
Advocate for the Petitioner : MR S BORTHAKUR
Advocate for the Respondent : PP, ASSAM
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 02.01.2023 Heard Mr. S. Borthakur, learned counsel for the petitioner and Mr. B. Sharma, learned Additional Public Prosecutor for the respondent State of Assam.
2. This criminal petition under Section 482, Code of Criminal Procedure, 1973 [CrPC] has been preferred assailing an order dated 06.08.2022 passed by the Court of learned Additional Chief Judicial Magistrate, Tinsukia ['the trial court', for short] in PR Case no. 681/2022 [G.R. Case no. 255/2020], whereby, the learned trial court has taken cognizance of the offences under Sections 120B/121/121A/294/353/505, Indian Penal Code and issued process against the petitioner herein to stand the trial by fixing 27.09.2022 as the date of his appearance.
3. The G.R. Case no. 255/2020 has arisen out of Tinsukia Police Station Case no. 158/2020, which came to be registered on the basis of a First Information Report [FIR] lodged by the Deputy Superintendent of Police [Headquarter], Tinsukia on 31.01.2020. In the FIR, the informant has made accusations inter alia to the effect that in a protest meeting held on 30.01.2020 against Citizenship Amendment Act [CAA], the petitioner made a speech with the intention to incite public violence. It was further alleged that in the course of his speech, he made comments against public servants. After completion of investigation in connection with Tinsukia Police Station Case no. 158/2020, the Officer In-charge of the case submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 526/2021 dated 30.11.2021. There was no other charge-sheeted accused person, save and except the petitioner, in the said Page No.# 3/4 charge sheet. On submission of the charge sheet, the case has been registered as PR Case no. 681/2022 [G.R. Case no. 255/2020]. On the basis of materials submitted along with the charge sheet, the learned trial Court has reached the opinion that there was sufficient ground for proceeding against the petitioner as the sole accused for offences, mentioned herein above.
4. Mr. Borthakur, learned counsel for the petitioner has submitted that for taking cognizance of offences punishable under Chapter VI of the Indian Penal Code which include the offences under Section 121, IPC and Section 121A, IPC, prior prosecution sanction from either the Central Government or the State Government, as the case may be, is a mandatory pre-condition, as per Section 196[1][a], CrPC. In the case in hand, there is no prosecution sanction from the State Government. As such, the learned trial court could not have taken cognizance of the offences under Section 121, IPC and Section 121A, IPC. He has further submitted that Section 196[1][b], CrPC bars the Court from taking cognizance of a criminal conspiracy to commit such offences [Section 121, IPC and Section 121A, IPC] without prior sanction of the concerned Government. Section 120B, IPC has only provided for the punishment of criminal conspiracy whereas Section 121A, IPC has defined 'criminal conspiracy', which requires at least two persons. In the charge sheet, the petitioner is the sole accused. He has further submitted that the provision of Section 196[1][a], IPC has further provided that no Court shall take cognizance of any offence punishable under sub-section [1] of Section 505, IPC without prior sanction of the concerned Government. Neither in the charge sheet nor in the order dated 06.08.2022, mention is made as regards the specific offence under Section 505, IPC, that is, whether the offence allegedly committed was under Section 505[1] or Section 505[2] or Section 506[3], IPC. He has further submitted that the ingredients of Page No.# 4/4 the offence under Section 294, IPC or Section 353, IPC are found absent in the FIR and in the charge sheet. As such, the order taking cognizance is made without due application of mind.
5. Mr. Sharma, learned Additional Public Prosecutor has submitted that the absence of sanction would at best be an irregularity, not a illegality.
6. Prima facie, I have found force in the afore-mentioned submissions of the learned counsel for the petitioner. The matter would require further examination.
7. Issue notice. The notice is made returnable on 31.01.2023.
8. As Mr. Sharma, learned Additional Public Prosecutor has appeared and accepted notice on behalf of both the respondents, no formal notice need to be issued to the said respondents. Mr. Borthakur, learned counsel for the petitioner shall furnish an extra copy of the petition along with the annexures, to Mr. Sharma within 3 [three] working days from today.
9. Having considered the material brought on record and the submissions of the learned counsel for the parties, it is provided that till the returnable date, further proceeding of PR Case no. 681/2022 [G.R. Case no. 255/2020] presently pending before the Court of learned Additional Chief Judicial Magistrate, Tinsukia shall remain suspended.
JUDGE Comparing Assistant