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2018 DIGILAW 1031 (KAR)

Fazlur Rehman v. State

2018-10-05

B.A.PATIL

body2018
ORDER : B.A. Patil, J. 1. The present petition has been filed by the petitioner-accused challenging the order passed by the VIII Additional CMM, Bangalore in CC. No. 9625/2016, dated 17.3.2018 whereunder the application filed by the accused-petitioner herein under Section 239 of Cr.P.C. came to be dismissed. 2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent-State. 3. The gist of the complaint is that the petitioner-accused has displayed the emblem of National Human Rights along with Ashoka emblem in front of his car bearing Regn. No. KA-04-MA-2103 and another car bearing Regn. No. KA-04-MM-0428, and also in front of his house and used to induce the people that he is in contact with the Central Government and he is in good quarters with Rajabhavan. If any work is there in the Government he will get it done by spending money and thereafter he used to cheat the people despite he is not having any contact with the Government. On the basis of the complaint a case was registered and the charge sheet has been filed. 4. The Court below took cognizance and issued summons. After appearance of the petitioner, an application came to be filed under Section 239 of Cr.P.C. for discharge. 5. It was the contention of the accused that there is no sufficient material to frame the charge as against the petitioner; the Investigating Officer has not properly conducted the investigation; no sanction has been obtained as per the Emblems and Names (Prevention of Improper Use) Act, 1950 ('Act' for short) and as such the accused may be discharged. The said application was seriously contested by the Senior APP. After hearing both sides, the Court below dismissed the said application. Challenging the same, the petitioner is before this Court. 6. The main grounds urged by the learned counsel for the petitioner are that as per Section 6 of the Act, previous sanction is very much necessary to prosecute for any of the offences punishable under the Act and in the instance case no such sanction has been produced as required under the Act and as such the Court below cannot take cognizance and frame the charge. He further submitted that when once there is no sanction, the Court also cannot take cognizance in respect of other offences and as such the Court ought to have discharged the accused-petitioner herein. He further submitted that when once there is no sanction, the Court also cannot take cognizance in respect of other offences and as such the Court ought to have discharged the accused-petitioner herein. On these grounds, he prayed to allow the petition and to discharge the petitioner. 7. Per contra, the learned HCGP vehemently argued and submitted that there is a prima facie material as against the petitioner to show that he induced the people by using the emblem of the Government and Ashoka emblem. The petitioner has also induced the people by saying that he will get the job and extracted money. In that light the Court below has rightly appreciated the evidence and rightly dismissed the application. He further submitted that at the time of framing the charge prima facie material has to be seen and detailed enquiry is not necessary. On these grounds, he prayed to dismiss the petition. 8. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the documents and other material which has been produced in this behalf. 9. It is the first contention of the learned counsel for the petitioner that without previous sanction as contemplated under Section 6 of the Act no prosecution can be made for the offences punishable under the Act. For the purpose of brevity, I quote Section 6 of the Act, which reads as under:- 6. Previous sanction for prosecution.- No prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any officer authorised in this behalf by general or special order of the Central Government. 10. Though the learned HCGP submitted that there is sanction, the records indicate that no such sanction has been obtained as contemplated under law. On going through Section 6 of the Act, it indicates that it is a non-obstante clause which says that no prosecution for the offences punishable under the said Act shall be instituted except the previous sanction of the Central Government or any officer authorised in this behalf. When there is no sanction, then under such circumstances, no prosecution can be made under Sections 3 and 5 of the Act. In that light, the Court below without properly considering and appreciating the material on record has come to a wrong conclusion. When there is no sanction, then under such circumstances, no prosecution can be made under Sections 3 and 5 of the Act. In that light, the Court below without properly considering and appreciating the material on record has come to a wrong conclusion. Be that as it may, on going through the charge sheet material, which has been produced along with petition, it indicates that the petitioner has not only charged with the offences punishable under Sections 3 and 5 of the Act, but he has also been charged for the offence punishable under Section 420 of IPC. In so far Section 420 of IPC is concerned, no sanction is necessary. Even on going through the material which has been produced, it clearly indicates the fact that the petitioner-accused has cheated the general public under the guise that he is having good quarters with Rajabhavan and he can get the work done there by spending some money. Even the said evidence is available in the charge sheet material. It is well settled principle of law laid down by the Hon'ble Apex Court that at the time of considering the application for discharge, the Court cannot hold a mini trial for limited purpose finding out whether there is a prima facie case is made out or not. Certain guidelines have been issued by the Hon'ble Apex Court in the case of Sajjan Kumar v. Central Bureau of Investigation, reported in 2011 AIR SCW 3730. The relevant paragraph-17 reads as under:- "17. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 11. On going through the aforesaid guidelines and keeping in view the principle laid down, it can be held that there is a prima facie material as against the accused-petitioner herein to proceed with under Section 420 of IPC. 11. On going through the aforesaid guidelines and keeping in view the principle laid down, it can be held that there is a prima facie material as against the accused-petitioner herein to proceed with under Section 420 of IPC. In the light of the discussion held by me above, the petition is partly allowed. The accused is discharged of the charges for the offences punishable under Sections 3 and 5 of the Act. However, the trial Court is directed to proceed against the accused-petitioner in so far as the offence punishable under Section 420 of IPC is concerned, in accordance with law.