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Rajasthan High Court · body

1996 DIGILAW 1164 (RAJ)

Avadh Srivastava v. State

1996-10-09

N.C.KOCHHAR

body1996
Honble KOCHHARS,J – Since this petition and SB Cr. Misc.Petition No. 366/96, also styled as ``Avadh Srivastava and Anr. vs.The State of Rajasthan and Anr.(the other petition,) arise out of the similar facts, and the same points arise in both of them, they are being disposed of together by this order. (2) Since the facts are similar,the facts of this, case, are being mentioned for the purposes of convenience. An article, authored by Shri Avadh Srivastava ( the petitioner No. 1), was published in the First Issue of August, 1995 of Hindi Magazine `Sarita (hereinafter to be referred as `` the magazine), under the heading. `Jain Muni Par Balatkar Ka Arop(allegations of rape against Jain Muni). The respondent No. 2 Tarachand, filed a complaint under Secs.295- A, 500 and 501 of the Indian Penal Code (IPC), in the court of learned Judicial Magistrate -Kishangarh, District-Ajmer, against the petitioner No. 1 as also against Shri Vishwanath ( the petitioner No. 2), the editor and publisher of the magazine. The learned Judicial Magistrate took cognizance and after the recordingevidence, produced by the respondent No. 2, came to the con- clusion that a prima facie case under Sec. 295-A, IPC, had been made out against the petitioners and consequently, vide the impugned order dated 13.11.95, summoned them. Feeling aggrieved, the petitioners have approached this court, by filing this petition under Sec. 482 of the Code of Criminal Procedure, 1973 (``the Code) challenging the jurisdiction of the learned Judicial Magistrate, to take cog- nizance of the offence in question. (3) I have heard the learned counsel for the parties. (4) The learned counsel for the petitioner,has contended that the respondent No.2 having not obtained the sanction of the Government, for the prosecution of the petitioners, for the allegations that they had committed an offence, punishable under Sec. 295-A, IPC, the learned Judicial Magistrate could not take cognizance of the offence and could not summon them. (4) The learned counsel for the petitioner,has contended that the respondent No.2 having not obtained the sanction of the Government, for the prosecution of the petitioners, for the allegations that they had committed an offence, punishable under Sec. 295-A, IPC, the learned Judicial Magistrate could not take cognizance of the offence and could not summon them. (5) Sub-sec.(1) of Sec.196 of the code, on which, reliance has been placed by the learned counsel for the petitioner, reads as under:- ``(1) No court shall take cognizance of - (a) any offence punishable under Chapter-VI under Sec. 53- A or Sec.295 A or Sub-sec.(1) of Sec. 505 of the Indian Penal Code (43 of 1860), or (b) a criminal conspiracy to commit such offence, or (c) any such abatement,as is described in Sec. 108-A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. The bare reading of clause (a) of the above-said provisions, makes it clear that a court is debarred from taking cognizance of an offence, punishable, inter alia, under Sec. 295-A, IPC, without the previous sanction of the Government. (6) It has not been disputed before me by Shri R.P. Garg, the learned counsel for the respondents, that no sanction was obtained by the respondents, for prosecuting the petitioners under Sec. 295-A, IPC. Shri Garg has very fairly conceded that the learned Judicial Magistrate could not take cognizance of the offence in question, in absence of the sanction from the Government in this respect. (7) It appears that the learned Judicial Magistrate took cognizance of the offen- ce in question, without noticing the provision, quoted above. (8) In these circumstances, if the impugned orders and the proceedings, preceding thereto from the stage of taking cognizance, are not quashed, it would amount to abuse of the process of the court and would result into injustice to the petitioners. (9) Consequently, I accept both these petitions, quash the impugned order, dated 13.11.95, passed in the criminal complaints, out of which, the petition and the other petition have arisen, and also quash the proceedings, from the stage of taking cognizance of the offence in question, by the learned Judicial Magistrate. (9) Consequently, I accept both these petitions, quash the impugned order, dated 13.11.95, passed in the criminal complaints, out of which, the petition and the other petition have arisen, and also quash the proceedings, from the stage of taking cognizance of the offence in question, by the learned Judicial Magistrate. (10) Although, it is unnecessary, but at the request of Shri R.P. Garg, the lear- ned counsel for the respondent No. 2, it is made clear that this order would not debar the complaintants of the complaints in question, from prosecuting the petitioners, after obtaining the necessary sanction under Sec. 196 of the Code, if so advised. Both the petitions stand disposed of accordingly. The file of the learned trial court., be sent back immediately.