Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 176 (GUJ)

Rameshbhai M. Vagadia v. State of Gujarat

2009-03-19

RAVI R.TRIPATHI

body2009
Judgment Ravi R. Tripathi, J.—The present application is filed by the three applicants. The learned Advocate for the applicants submitted that it may be noted that applicant No. 3 is stated to be 99 years old in the year 2006. 2. The present application is filed praying that:— “20. (A) Your Lordships be pleased to call for the records and proceedings of Criminal Case No. 9330 of 2005 pending in the Court of Learned 4th Additional Senior Civil Judge, Ahmedabad Rural at Ahmedabad.” 20. (B) Be further pleased to quash the Criminal Case No. 9330 of 2005 at Annexure A pending in the Court of Learned 4th Additional Senior Civil Judge, Ahmedabad Rural at Ahmedabad.” 3. The assertion of the applicants is that Respondent No. 2 - original complainant filed a complaint in the Court of learned Additional Senior Civil Judge & Judicial Magistrate First Class which was numbered as Criminal Case No. 9330 of 2005. The said complaint was filed under Sections 295, 295-A, 298, 501(B), 505, 506, 506(B), 499 and 114 of the Indian Penal Code. 4. Mr. D.K. Puj, learned Advocate for the applicants, invited attention of the Court to Section 295-A of the Indian Penal Code and then invited attention of the Court to the provisions of Section 196 of the Code of Criminal Procedure. The learned Advocate for the applicants submitted that under Clause (a) of Sub-section (1) of Section 196, it is specifically provided that, “any offence punishable under Chapter VI or under Section 153-A, [Section 295-A or Sub-section (1) of Section 505] of the Indian Penal Code, 1860 (45 of 1860). 5. The learned Advocate for the applicants invited attention of the Court to paragraph No. 10 of the application, which reads as under:— “10. The Petitioners further state and submit that the Complaint filed by the Respondent No. 2 is per se bad in law and is in contravention of provisions of Section 196 of the Code of Criminal Procedure as no permission of Central Government or State Government was obtained prior to filing of the said Complaint under Section 295-A of the Indian Penal Code. The Ld. Magistrate should have been vigilant to this mandatory requirement and should not have taken any cognizance of the same. Only on this count, the Complaint is required to be quashed and set aside. The Ld. Magistrate should have been vigilant to this mandatory requirement and should not have taken any cognizance of the same. Only on this count, the Complaint is required to be quashed and set aside. Under Section 196(1) of the Code, it is necessary to have sanction from the concerned government and in absence thereof, no Court can take cognizance of an offence punishable under Section 295-A of the Indian Penal Code. The obtaining of sanction is, therefore, a sine qua non and no Magistrate can take the cognizance of the complaint under Section 295-A unless the Order granting the sanction is produced. The Petitioners beg to rely on the decision of this Hon’ble Court in the case of Shalibhadra Shah vs. Swami Krishna Bharti and Another, 21 GLR 881 and also the decision of Hon’ble Supreme Court in the case of State of Goa vs. Babu Thomas, 2005 AIR SCW 4845.” 6. Respondent No. 2 - original complainant has filed affidavit in reply, which is at page No. 45 to 50. In paragraph No. 9 of the affidavit in reply, Respondent No. 2 has dealt with paragraph No. 8 of the application. Paragraph No. 9 of the affidavit in reply reads as under:— “[9] Regarding Para-8, I say that all statements made therein are false. The offence under Section 298 of the IPC is made out. The petitioners have admitted the commission of offence of defamation and it is not correct to say that only the defamed person can file the complaint. Any aggrieved person can file the complaint under Section 499 of the Indian Penal Code and I am the aggrieved person, in view of the fact that I am the strong believer of Santpanth Dharma Gurudwara and Jyotidham Pirana Imamshah Bava Roja and I am the trustee of Pirana Kutch Kadava Patidar Santpanth Sanatan Trust.” The reply is silent on the contentions raised by the applicants in paragraph No. 10, as the same are not replied in specific. However, it will be appropriate to refer to the averments made in paragraph No. 10 of the affidavit in reply, which reads as under:— “[10] Regarding para-9, I say that Section 295 of the IPC is independently applicable. Additionally, Section 114 of the Indian Penal Code is also to be read together. Section 196 of the Criminal Procedure Code is not applicable at this stage. Additionally, Section 114 of the Indian Penal Code is also to be read together. Section 196 of the Criminal Procedure Code is not applicable at this stage. Even if no sanction from the Government is obtained, the question of cognizance or non-cognizance cannot be decided at this stage in a petition for quashing. All other allegations are false and are not accepted.” Respondent No. 2 has not dealt with the specific contentions raised in paragraph No. 10 of the application. In view of the aforesaid discussion, it is clear that the cognizance taken by the learned Judge of the complaint filed, to the extent it relates to the offence under Section 295A, for which no sanction is obtained, cannot be held tenable in law to that extent. 7. In the result, the petition is allowed. The complaint /Criminal Case No. 9330 of 2005 pending in the Court is learned 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Ahmedabad is quashed and set aside, to the limited extent, i.e. so far as offence under Section 295-A is concerned. Rule is made absolute. At the request of the learned Advocate for Respondent No. 2, it is clarified that quashing of the complaint /case, qua offence under Section 295-A, on the ground of non-obtaining of sanction, will not prejudice the complainant to proceed further with the complaint for the offence under Sections other than 295-A. It is also clarified that so far as offence under Section 295-A is concerned, it will be open to take steps in accordance with law.