Ghulam Mohammad Wani & Ors. v. State of J&K & Anr.
2012-05-04
HASNAIN MASSODI
body2012
DigiLaw.ai
1. The petitioners are employees of Govt. Silk Factory, Rajbagh, Srinagar, and are arraigned before learned Chief Judicial Magistrate, Srinagar, on the charge of having committed offences committed under section 409, 468, 471, 120 RFC. The petitioners are alleged to have hatched a criminal conspiracy with other accused and in execution of the conspiracy embezzled Rs. 200,000, Rs. 28,100, Rs. 1,00,000, Rs. 20,55,000, Rs. 1,00,000 on the strength of forged documents, using such documents as genuine. The petitioners stand formally charge of the offences punishable under section 409,468,471,120 RFC. 2. The petition under section 561_A on hand, filed on 3.9.2007, seeks quash-ment of the charge-sheet and proceedings emanating there-from in all the three cases on the ground that the respondent has failed to grant sanction in terms of section 196-A Cr. P. C. to the prosecution of the petitioner and the court in absence of such sanction lacked jurisdiction to take cognizance and proceed in the matter. The pendency of the instant petition has put the proceedings before the trial court on halt. 3. I have gone through the petition as also record available on the file and have heard counsel for the parties. It is contended by Mr. Lone, learned counsel for the petitioners that as one of the offences alleged against the petitioners is criminal conspiracy punishable under section 120-B, respondent no. 2 was under an obligation to seek sanction from the competent authority before presenting the charge sheet. It is insisted that in absence of the sanction in terms of 196-A Cr. P. C., the charge sheet and the proceedings emanating there-from are liable to be quashed. 4. To understand the arguments advanced, it is necessary to notice section 196-A cr. P. C. It reads as under: 196-A. Prosecution for certain classes of criminal conspiracy.
It is insisted that in absence of the sanction in terms of 196-A Cr. P. C., the charge sheet and the proceedings emanating there-from are liable to be quashed. 4. To understand the arguments advanced, it is necessary to notice section 196-A cr. P. C. It reads as under: 196-A. Prosecution for certain classes of criminal conspiracy. No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120-B of the Ranbir Penal Code, (1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an offence, to which the provisions of section 196 apply, unless upon complaint made by order of, or under authority from [the Government] or some officer empowered by [the Government] in this behalf, or (2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, life imprisonment or rigorous imprisonment for a term of two years or upward, unless [the Government], or District Magistrate empowered in this behalf by [the Government] has, by order in writing, consented to the initiation of the proceeding: Provided that where the criminal conspiracy is one to which the provisions of sub-section (4) of section 195 apply, no such consent shall be necessary. 5. A closer look on the above provision makes it abundantly clear that sanction contemplated by section 196-A cr. P. C is a pre-requisite only: i. Where the object of conspiracy is to commit illegal act other than an offence. ii. To commit a legal act by illegal means. iii. To commit an offence to which the provision of section 196 apply, iv. To commit any non-cognizable offence, v. A cognizable offence not punishable with death, life imprisonment or rigorous imprisonment for a term of two years or upwards. 6. In the present case the petitioners are alleged to have committed offence of criminal conspiracy within meaning of section 120-B RFC and object of the conspiracy as spelt out in the charge sheets has been to commit offence punishable under section 409,468,471 RFC. The aforesaid offences though cognizable carry punishment of life imprisonment or imprisonment for ten years or fine; imprisonment for seven and fine, and imprisonment respectively.
The aforesaid offences though cognizable carry punishment of life imprisonment or imprisonment for ten years or fine; imprisonment for seven and fine, and imprisonment respectively. In the circumstances none of the offences forming object of the criminal conspiracy, carries punishment of two years or less. 7. In the said background section 196 A cr. P. C. has no application in the present case. Resultantly, prohibition against cognizance embodied in section 196 A (1) does not apply to present case or stand in the way of respondents to file the charge sheet or in the way of the trial to take cognizance and proceed with the trial. The cases relied upon by the learned counsel for the petitioners reported as AIR 1961 SC1245 and AIR 1967 SC1590 do not advance the petitioners' case. It is to be noted that the sanction in section 196-A Cr. P. C. has reference to the offence of criminal conspiracy and not the offence forming object of the criminal conspiracy if actually committed. Where the offence(s) forming object of the criminal conspiracy are actually committed, absence of sanction under section 196-A Cr. P. C., if applicable, may effect prosecution only to the extent of criminal conspiracy and not offences actually committed. Be that as it may in the case in hand, as already pointed out section 196-A cr. P. C. has no role to play. 8. For the reasons discussed the petition is bereft of merit and is accordingly dismissed. The record, if any, be sent down. The trial court to proceed with the trial and having regard to its long pendency make an effort to take it to the logical conclusion with due dispatch.