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2007 DIGILAW 158 (CAL)

ABDULLAH SALAFI v. STATE OF WEST BENGAL

2007-03-08

SADHAN KUMAR GUPTA

body2007
( 1 ) THIS revisional application has been preferred under Section 401 read with Section 482 of the Cr. P. C. ( 2 ) CASE of the petitioner is that on the basis of a report submitted by a police officer regarding the information received to the effect that some. S.. agents of Pakistan and Bangladesh entered into India with a view to wage war against the Indian Government and to topple the State Government, which are established in accordance with law. On the basis of the said report, a criminal case under Sections 121/121a/122/124a/153a/295a/420/467/471 read with Section 120-B of the Indian Penal Code was started. During the course of investigation, this petitioner was apprehended on the allegations that he was also a conspirator so far as the said offence is concerned. According to the petitioner, he is a religious man and is a citizen of India and is in no way connected with the alleged conspiracy, as claimed on behalf of the de facto complainant. The allegations, as made in the FIR as well as in the charge-sheet, practically do not constitute any offence so far as the present petitioner is concerned. ( 3 ) AS such, the petitioner filed an application under Section 227, Cr. P. C. praying for his discharge before the ld. Additional sessions Judge, 9th Fast Track Court, calcutta. Said petition was heard on 18-8-2006. Ld. Sessions Judge without considering the materials on record was pleased to reject the said petition. According to the petitioner, the order, as passed by the ld. Judge was thoroughly illegal, as there was no prima-facie case made out against the petitioner so far as the case is concerned. That apart, the ld. Sessions Judge also failed to consider that when cognizance was taken, at that time there was no valid sanction empowering the ld. Judge to take cognizance and as such, the cognizance, as taken, must be held to be bad in the eye of law and consequently on the basis of the said cognizance the case cannot proceed. Ld. Sessions Judge failed to appreciate all these things while rejecting the petition filed by the petitioner. As such, by filing this revisional application, the petitioner has claimed that further continuation of the criminal proceeding before the ld. Sessions Judge will be an abuse of the process of the Court and consequently it should be quashed. ( 4 ) MR. Ld. Sessions Judge failed to appreciate all these things while rejecting the petition filed by the petitioner. As such, by filing this revisional application, the petitioner has claimed that further continuation of the criminal proceeding before the ld. Sessions Judge will be an abuse of the process of the Court and consequently it should be quashed. ( 4 ) MR. Asimesh Goswami, Ld. Public prosecutor, appeared on behalf of the State. He submitted that there are enough materials collected against the petitioner and as such, it cannot be said at this stage that the allegations, as made against the petitioner are absurd and improbable in nature. He further contended that there was valid sanction granting by the appropriate authority before the cognizance was taken and so, according to Mr. Goswami, there was no defect in taking of the cognizance. Due to all these reasons, he submitted that the revisional application being devoid of merit should be dismissed. ( 5 ) I have considered the submissions of the ld. Advocate for both the sides. It is the settled position that prayer for quashing cannot be allowed unless it is shown that the allegations, as made against the accused persons are patently absurd and inherently improbable in nature and that further continuation of the said proceeding will be an abuse of the process of the Court. It is also the settled position that prayer for quashing should be allowed very sparingly and the court is to consider all the materials to see as to whether a prima-facie case for going to the trial has been made or not. Keeping this legal position in mind, let us now consider whether the ld. Judge was justified in rejecting the prayer of the accused praying for his discharge from the criminal case and also whether it is a fit case for allowing the prayer for quashing, as made in this revisional application. I have carefully perused the order passed by the ld. Sessions judge dated 18-8-2006. It appears from the order that the ld. Judge discussed in detail about the prima facie materials, which were collected against the present petitioner. From those materials, ld. Judge was of the opinion that there are prima facie materials against the petitioner. The discussion, as made by the ld. Judge in this respect, appears to be cogent in nature and I find no illegality in it. Judge discussed in detail about the prima facie materials, which were collected against the present petitioner. From those materials, ld. Judge was of the opinion that there are prima facie materials against the petitioner. The discussion, as made by the ld. Judge in this respect, appears to be cogent in nature and I find no illegality in it. The materials, so collected against the petitioner, cannot be said to be absurd and improbable in nature. I fully agree with the view of the ld. Judge that the prosecution was in a position to make out a prima facie case so far as this accused/petitioner is concerned. As such, question of quashing of the proceeding, as prayed by the petitioner, does not arise at all. To my mind, ld. Judge was perfectly justified in rejecting the prayer of discharge, as made by the accused/petitioner. ( 6 ) MR. Sardar Amjad Ali, ld. Advocate for the petitioner mainly argued that in a case of this nature prior sanction, as provided under Section 196 (l) (a) of the Cr. P. C. is required. This Section provides that no court shall take cognizance of an offence punishable under Chapter VI or under Section 153a of the Indian Penal Code or a criminal conspiracy to commit such offence except with previous sanction of the Government. According to Mr. Al. there was no such sanction when cognizance was taken by the ld. Magistrate. As such, he argued that as the cognizance taken in this case is bad from the very inception, so the proceeding cannot continue and is liable to be quashed. But it appears from the case diary that sanction was obtained before the cognizance was taken. It appears that cognizance was taken on 15-1-2002 by the ld. Metropolitan Magistrate, 7th Court. The sanction of the appropriate Government was given on 14-1-2002. We can safely presume that the ld. Magistrate at the time of taking cognizance certainly perused the sanction order and other materials and then took cognizance. I do not find any illegality in it. But Mr. Ali pointed out that the sanction was accorded only for holding trial of the accused persons. No specific mention is there that sanction was given for taking cognizance of the offence also. As such, according to Mr. Ali, this sanction only authorised the ld. Magistrate to hold trial so far as the offence is concerned. But Mr. Ali pointed out that the sanction was accorded only for holding trial of the accused persons. No specific mention is there that sanction was given for taking cognizance of the offence also. As such, according to Mr. Ali, this sanction only authorised the ld. Magistrate to hold trial so far as the offence is concerned. I regret, I cannot agree with this argument. It is specifically mentioned in the sanction order that it was granted for the trial of the accused person. Holding of 'trial' necessary means that it will follow after cognizance is taken by the Magistrate. Unless cognizance is taken, question of proceeding with the trial does not arise at all. Since the sanction has been granted for proceeding with the trial of the case, it necessarily means that the appropriate authority granted the sanction for the ld. Magistrate to take cognizance of the offence and to proceed with the trial subsequently on the basis of the said cognizance. Simply because the word 'cognizance' has not been incorporated in the sanction order, that cannot, in my considered opinion, vitiate the trial as claimed by the ld. Advocate for the petitioner. I do not feel that the accused/petitioner is in any way prejudiced due to the absence of the word 'cognizance' in the said sanction order. Ld. Advocate for the petitioner relied upon the decision reported in air 2002 SC 2784 : (2002 Cri LJ 3573) (Dharmesh alias Naru Nitin Bhal Shah v. State of Gujarat) in support of this contention. On the other hand, ld. P. P. relied upon the decision reported in (2006) 3 SCC (Cri) 179 : (2006 Cri LJ 4045) (State of Karnataka v. Pastor P. Raju ). I have considered the decision, as cited by the ld. Advocate for the petitioner. It appears from the fact of the said decision that there was practically no sanction to prosecute before the ld. Magistrate at the time when cognizance was taken. So this decision is not at all applicable so far as this revisional application is concerned. I have considered the decision, as cited by the ld. Advocate for the petitioner. It appears from the fact of the said decision that there was practically no sanction to prosecute before the ld. Magistrate at the time when cognizance was taken. So this decision is not at all applicable so far as this revisional application is concerned. ( 7 ) ON the other hand, if we look into the decision reported in (2006) 3 SCC (Cri) 179 : (2006 Cri LJ 4045) (supra), wherein the Hon'ble Supreme Court held to the effect "if a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a magistrate without the previous sanction of the Central Government or the State Government or of the District magistrate, there will be no violation of Section 196 (1a) Cr. P. C. and no illegality of any kind would be committed. " In view of this decision, I am of opinion that the argument, as advanced by the ld. Advocate for the petitioner cannot be accepted. ( 8 ) THEREFORE, in view of my above discussion, i am of opinion that the ld. Magistrate was perfectly justified in rejecting the prayer for discharge, as made by the accused/petitioner and I find no illegality in it. As a prima facie case has been made out, i am further of the opinion that prayer for quashing cannot also be allowed. ( 9 ) IN the result, the revisional application is dismissed on contest. The order dated 18-8-2006 passed by the ld. Additional Sessions Judge 9th Court, Fast Track Court, calcutta in Sessions Case No. 140 of 2006 is confirmed. Prayer for quashing is rejected. Ld. Judge is directed to take appropriate step in accordance with law for expeditious disposal of the case. The interim order, as passed earlier, stands vacated. ( 10 ) SEND a copy of this judgment to the court below at once for information and necessary action. ( 11 ) XEROX certified copy of this order be handed over to the parties, if applied for, on urgent basis. Revision dismissed. .