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2015 DIGILAW 154 (KAR)

P. Venkataraghavan (Alias) Keshav v. Habeeb Khan

2015-02-06

K.N.PHANEENDRA

body2015
Judgment : 1. Petitioners, who arraigned as Accused Nos. 1 & 2 in C.C. No. 1333/2007 pending on the file of the II Additional Civil Judge (Jr. Dn.) and JMFC, Gulbarga, have approached this Court seeking quashing of the entire proceedings in the said case. 2. The respondent and his counsel remained absent before this Court. 3. I have heard the arguments of the learned counsel for the petitioners. Learned HCGP, though not a party to the proceedings, assisted the Court in disposing off the petition. 4. The records disclose that the respondent/complainant had filed a complaint before Roza Police alleging commission of the offence by the petitioners under Section 153(A) of IPC stating that, on 24.11.2001, there was a publication in ‘Hindu’ - English daily newspaper, in which a Cartoon carried an illustration titled “Popcorn” in its supplement section called “Young world”. The said illustration was published depicting the virtues of one “Mohammed” hurting the sentiments of the Muslim brethren and prayed for taking action against one Kehsava. The police after due investigation, submitted ‘B’ Final Report before the jurisdictional Magistrate. A notice was ordered to the complainant, in turn, he appeared before the Court and being not satisfied with the ‘B’ report submitted by the police, filed a protest petition, after a long lapse of time and examined himself as PW.1 and got marked Exhibits- P1 to P3. After going through the protest petition as well as the sworn statement of the complainant, the Trial Court has observed that the complainant-Habeeb Khan sworn to before the Court that he is a resident of Pashapura, Roza, Gulbarga and he is a social worker. It is alleged that there was a Cartoon published in ‘The Hindu’ –English daily newspaper dated 24.11.2001 on Holy Prophet Mohammed, which is against the Islam religion and the same has hurt the feelings of all the Muslims, which is an act prejudicial to maintenance of harmony. Therefore, he requested to take action particularly against the petitioners herein. On going through the contents of the paper publication and sworn statement, the Magistrate has decided to issue process against the accused persons, as such he had taken cognizance. Accordingly, he issued summons to the accused. In fact, as dutiful citizens of the country, Accused Nos. 1 & 2 appeared before the Court and enlarged on bail. On going through the contents of the paper publication and sworn statement, the Magistrate has decided to issue process against the accused persons, as such he had taken cognizance. Accordingly, he issued summons to the accused. In fact, as dutiful citizens of the country, Accused Nos. 1 & 2 appeared before the Court and enlarged on bail. Subsequently, as a matter of right, they approached this Court for quashing of the entire proceedings. 5. Sri R. Shanmuga Sundaram, learned Senior Counsel has strenuously contended before this Court that Section 153(A) of IPC is a peculiar provision, wherein the law contemplates that before lodging any complaint or any charge sheet by the police, such complaint or the charge sheet shall be accompanied by a valid sanction order granted by the competent Jurisdictional State under Section 196 of Cr.P.C. Since cognizance is taken by the learned Magistrate without there being a sanction order, the entire proceeding is vitiated by serious incurable defect. Therefore, the said proceeding deserves to be quashed. 6. The learned counsel for the petitioners has also cited a ruling of this Court reported in 2010(1) Kar. L.J. 47 between the State of Karnataka and another Vs. Rajshekar and Another. This Court after elaborately discussing the powers of the Magistrate under Section 196 of Cr.P.C. has held that sanction is an absolute legal requirement before filing any complaint before the Magistrate, the Court has also came to a conclusion that even for referring a private complaint for investigation under Section 156(3) of Cr.P.C., production of such sanction order is an imperative condition. 7. At Paragraphs 10 & 11 of the decision cited supra, this Court has observed with reference to the object and purpose for granting such sanction by the Government. In my opinion, it is worth to quote here the relevant portion of the said judgment. “10. ……… In the instant case however, the offences alleged are under Sections 153-A, 295 and 295-A of the Indian Penal Code- relating to promoting enmity between different groups of people and involving deliberate acts outraging the religious feelings of any class and as pointed out by the learned Advocate General, Section 196(1) provides that, no Court shall take cognizance of any offences under Section 153-A or Section 295-A of IPC without the previous sanction of the Central Government or the State Government. 11. 11. The object of Section 196(1) of the Code of Criminal Procedure is to prevent unauthorised persons from intruding in matters of State by instituting prosecution and to secure that such prosecutions, for reasons of policy, shall only be instituted under the authority of Government. Further, the offences are of a serious and exceptional nature and deal with matters relating to public peace and tranquility with which the State Government is concerned. Therefore, provision has been made for obtaining prior sanction of the Government before cognizance is taken of any such offence. It is possible that in a given case, the very filing of a prosecution, after tempers have cooled down, may generate fresh heat which could well be avoided by the Government by refusing to accord sanction. There is hence an underlying policy which is evident on a reading of the offences enumerated in Section 196(1) in respect of which prior sanction is a must before cognizance of such offence can be taken. Further, under subsection (3) of Section 196, it is laid down that, before sanction is accorded, the State Government may order a preliminary investigation by a police officer. This is apparently to decide on the course to be adopted by the State Government in respect of any particular incident and is therefore a crucial step, which cannot be by-passed.” 8. A meaningful understanding of the observations made by this Court, clearly mandates that Section 196(1) of Cr.P.C. is an underlying policy, in respect of which, prior sanction is a must for taking cognizance by the Court in order to prevent a false complaint being filed before the courts for granting an order of sanction. 9. It is also pertinent to note here the Central Government or the State Government, as the case may be, have to apply their mind, whether the sanction could be granted under the circumstances of the case or not. Therefore, the protection arm provided under Section 196(1) of Cr.P.C. cannot be at any stretch of imagination called as an ‘Idle Formality’. It is a substantive right of the accused to insist for a sanction order to be filed to the Court by the complainant, if not all subsequent actions certainly result in vitiation of the proceedings. Therefore, the protection arm provided under Section 196(1) of Cr.P.C. cannot be at any stretch of imagination called as an ‘Idle Formality’. It is a substantive right of the accused to insist for a sanction order to be filed to the Court by the complainant, if not all subsequent actions certainly result in vitiation of the proceedings. In this background, Section-196 of Cr.P.C., if it is read in its proper perspective, it clearly indicates that it is a mandatory requirement, because the provision itself starts with a non-abstante clause that - “No Court shall take cognizance of,- “(a) any offence punishable under Chapter –VI or under Section 153(A), [Section 295(A) or sub-section (1) of Section (505) of IPC except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.” Sub-section (3) of Section 196 Cr.P.C. also indicates the responsibility on the part of the Central Government or the State Government as to what preliminary steps have to be taken before according such sanction. The said provision reads thus: “Section 196(3): The Central Government or the State Government may, before according sanction under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under subsection (1A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a Police Officer not being below the rank of Inspector, in which case such Police Officer shall have the powers referred to in sub-section (3) of Section 155.” This provision abundantly makes it clear that the protection arm given to the accused persons to the effect that the Central Government or the State Government must make it sure that according of sanction is absolutely necessary depending upon the facts and circumstances of the case. The preliminary investigation contemplated under the provision denotes that the State Government or the Central Government should satisfy themselves before according sanction that the preliminary investigation discloses the commission of the offence by the accused persons. Therefore, the said provision in a stricter sense is an absolute and mandatory requirement of law, which protects the accused persons from false implication by anybody. 10. Therefore, the said provision in a stricter sense is an absolute and mandatory requirement of law, which protects the accused persons from false implication by anybody. 10. Referring to the facts, in this particular case, as rightly argued by the learned counsel, there is absolutely no sanction order obtained by the complainant to seek the indulgence of the Court for taking cognizance on the basis of his protest petition and calling upon the accused persons to answer the charges against them. One more thing to be noted here that as per Section 196(3) of Cr.P.C., the Central Government or the State Government has to refer the matter to the jurisdictional police for investigation. In this particular case, it is pertinent to observe here that the jurisdictional police have already investigated the case and submitted ‘B’ Final Report on the FIR lodged by the complainant. Therefore, at any stretch of imagination, it cannot be said that the complaint by way of protest petition is maintainable before the jurisdictional Magistrate. 11. For the above said reasons, I am of the opinion that petitioners have made-out a substantial ground for quashing of the proceedings. If continuation of the proceedings is allowed, it will definitely amounts to abuse of the process of Court. Hence, I pass the following: ORDER The petition filed under Section 482 of Cr.P.C. is allowed. Consequently, all further proceedings in C.C. No.1333/2007 pending on the file of the II-Addl. Civil Judge (Jr. Dn.) and JMFC, Gulbarga, is hereby quashed.