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2018 DIGILAW 2102 (ALL)

Parmeshwar Bharati v. State of U. P.

2018-10-03

J.J.MUNIR

body2018
JUDGMENT : 1. This Application under Section 482 Cr.P.C. seeks to quash proceedings of Criminal Case no.54 of 2018, State vs. Parmeshwar Bharati (arising out of Case Crime no.40 of 2017), under Section 505(2) IPC and Section 66-A of the Information Technology Act, Police Station Bijpur, District Sonbhadra, pending before the Judicial Magistrate, Duddhi, District Sonbhadra. There is a prayer to quash charge sheet no.25 of 2017, dated 17.06.2017 giving rise to the aforesaid proceedings also. 2. Heard Sri Rakesh Prasad and Sri D.S. Yadav, learned counsel for the applicant and Sri S.K. Pal, learned Government Advocate assisted by Sri J.B. Singh, learned A.G.A. and Sri Avanish Shukla, learned counsel appearing on behalf the State. 3. At the outset, it must be placed on record, that the learned counsel appearing for both sides agreed that the issues involved in the present application being essentially legal, and, determinable on the basis of material already available on record, no further affidavits are required to be filed by the parties. The Court has, therefore, proceeded to hear the matter on merits. 4. In order to support his prayer to quash proceedings of the criminal case under reference, including the charge sheet, the learned counsel for the applicant on foot of facts, that will shortly be noticed, has advanced submissions that give rise to the following questions for consideration of this Court: (a) Whether the posts on the WhatsApp Group called 'Friends For Ever' made by the applicant, a member of the group, by the content of the messages posted, constitute offences punishable under Section 505(2) IPC or Section 66A of the IT Act, or any other law for the time being in force? (b) Whether the impugned proceedings under Section 505(2) IPC, including the charge sheet, are liable to be quashed in the absence of an order of sanction by the State Government under Section 196(1-A) Cr.P.C.? 5. The facts giving rise to the impugned prosecution are these, that a First Information Report dated 25.05.2017, giving rise to Case Crime no.40 of 2017, under Section 505(2) IPC and Section 66-A of the IT Act was registered at Police Station Bijpur, District Sonbhadra, on the basis of a written information, lodged by Upendra Pratap Singh, opposite party no.2, against the applicant. 6. 6. It was alleged by the informant that the applicant, Parmeshwar Bharati, a resident of the NTPC Colony, Rihand Nagar, Bijpur, Sonbhadra, through his mobile resource no.9453017648 regularly posts on the WhatsApp Group called 'Friends For Ever', messages criticizing the Hindu religion, Hindu Gods and Goddesses, besides prominent national leaders, in an unbecoming language through which the applicant hurts the informant's religious sentiments, besides causing hurt to his feelings; that in this connection the Group Administrator, Manoj Kumar, has forbidden the applicant from posting such messages on the WhatsApp Group, that are fraught with the peril of disturbing social and religious tranquility; and, that the informant appended printouts of the offending messages, along with the first information, with a request that appropriate action be taken against the applicant. On the basis of the aforesaid information, the police registered the crime last mentioned, and, proceeded to investigate. 7. The police investigated the matter thoroughly, and, at the end of investigation have proceeded to file a charge sheet dated 17.06.2017, being charge sheet no.25 of 2017, that is hereinafter referred to, as the impugned charge sheet. The Magistrate has taken cognizance of the impugned charge-sheet, on the basis of which, Criminal Case no.54 of 2018, under Section 505(2) IPC and Section 66-A of the IT Act, has been registered. 8. In the case diary, during investigation the Investigating Officer has recorded the statements of members of the WhatsApp Group, 'Friends For Ever', including the Group Administrator, Manoj Kumar Dubey son of Sri Vijendra Dubey, Sanjay Gupta son of Sri Jagdish Prasad Gupta, Vijendra Singh son of Sri Daya Shankar Singh, Sandeep Gupta son of Sri Lavkush Gupta, Sanjay Gupta son of Sri Jagdish Prasad Gupta besides the informant, Upendra Pratap Singh son of Sri Sitaram Singh, all members of the WhatsApp Group in question. The Investigating Officer has enclosed with the case diary, a printout of the various messages, posted and circulated on the WhatsApp Group, one of which is titled “Hindu Naam Kaa Sach”. 9. The Court has been taken through the said messages, and, on a reading of it, does not find it to be much of an intellectual discourse. It is, prima facie, not motivated by any academic flair, but by malice and disgruntlement. 9. The Court has been taken through the said messages, and, on a reading of it, does not find it to be much of an intellectual discourse. It is, prima facie, not motivated by any academic flair, but by malice and disgruntlement. It portrays the Brahmins, not only in poor light, but identifies them as a community with reference to historical events, who have acted maliciously against others. It also ridicules certain beliefs of the Hindu faith, enumerating specific instances at Page 41 of the paper book. There is also a detailed reference from historical to contemporary times, of instances where Hindu women have married Muslim men, and, all this is said prima facie, with no commendable academic or intellectual point to be made. 10. This Court refrains from quoting verbatim, the whole or part of the offending messages, posted on the WhatsApp Group, for the sake of curtailing publication through judicial record, of words or ideas, that prima facie have a tendency or the likelihood to incite any class or community of persons, to commit offence against any other class or community, and, creating or promoting enmity, or hatred or ill-will between classes on grounds of religion, race, caste or community. 11. Sri D.S. Yadav, learned counsel for the applicant has, however, submitted that the applicant has not committed any offence by publishing on the WhatsApp Group in question, posts, the contents of which have been brought to the notice of the Court, that are the foundation of the impugned prosecution. He does not disown those posts on the WhatsApp Group, but submits that if all allegations are accepted, no offence against the applicant is made out. 12. Sri Yadav, learned counsel for the applicant has argued, that this is so because whatever is posted on the WhatsApp Group, is only a repetition of the stories from the ancient texts, and, that repetition of ancient text would not attract any penal provision of the law, much less the offences charged. Learned counsel for the applicant has placed reliance upon a Full Bench Decision of this Court in Lalai Singh Yadav and another vs. State of Uttar Pradesh, 1971 Cri LJ 1773(FB), in support of the proposition last mentioned. The decision of this Court in Lalai Singh Yadav (supra) arose in the context of a State Government's order, forfeiting a book titled, “Samman Ke Liye Dharma Parivartan”. The decision of this Court in Lalai Singh Yadav (supra) arose in the context of a State Government's order, forfeiting a book titled, “Samman Ke Liye Dharma Parivartan”. The book was a compilation of speeches, made by the late Dr. Ambedkar, asking the scheduled castes to free themselves of oppression of the superior castes, by renouncing the Hindu faith, and, adopting Budhism. The forfeiture was challenged through an application under Section 99-B Cr.P.C. (the old Code) by the publisher of the forfeited book, as appears from the judgment. The Government Order forfeiting the book, appears to have cited 24 passages carried in the book, that were held to “promote or attempt to promote on grounds of religion, caste or community, disharmony or feelings of enmity, hatred or illwill between different religious, castes or communities and insult or attempt to insult the religion or religious beliefs of a class”, and, on that ground, the publication of the book was thought to be punishable under Sections 153-A and 295-A IPC. 13. It is submitted that though the said authority is not precisely about Section 505(2) IPC, but is certainly about cognate offences, where the offence comes from the words spoken or written by a person to promote disharmony or hatred or ill-will between different religious, racial or religional groups or castes or communities, or spoken maliciously, with the intention of outraging religious belief of any class of citizens of India, or insult or attempt to insult, the religion or the religious belief of that class. The principles laid down, in the context of the aforesaid offences, in the Full Bench Decision would, therefore, apply in the submission of the learned counsel, to the present case also. 14. This Court thinks that under the law the provisions are certainly cognate and once some words are spoken or written, and, much more than that, published, that hurt the feelings or promote disharmony between different communities based on religion, or otherwise incite them to commit violence, the offences are certainly cognate. 15. 14. This Court thinks that under the law the provisions are certainly cognate and once some words are spoken or written, and, much more than that, published, that hurt the feelings or promote disharmony between different communities based on religion, or otherwise incite them to commit violence, the offences are certainly cognate. 15. A perusal of the facts in Lalai Singh Yadav (supra), however, shows that the Court examined the offending passages in the book to conclude that the “underlying purpose of it all was to draw the attention of the scheduled castes to the unfair disabilities imposed on them by the practices and customs of the Hindu religion in its Brahminical form and to persuade them to give up Hinduism and adopt Buddhism instead” as observed by their Lordships of the Full Bench. It was further said by their Lordships that “rational criticism of religious tenets couched in restrained language, cannot amount to an offence either under Section 153-A or under Section 195-A of the Penal Code. And criticism of the Hindu religion for its inculcation of the doctrine of untouchability and for the sanction which it has given to reprehensible treatment meted out to the lower castes has of recent years been considered perfectly legitimate, having been sponsored by no less a person than Mahatma Gandhi himself”. It was in the context of a finding with the theme of the book and its various passages, that their Lordships found for a fact, that it was rational criticism of a certain religious practice that is untouchability, which even otherwise is prohibited by the Constitution. It was in the context of that kind of a positive approach and constructive criticism that their Lordships found nothing offensive, in the passages of the confiscated book. 16. At this stage Sri Yadav, learned counsel for the applicant has invited the attention of this Court to paragraph 7 of the Report in Lalai Singh Yadav (supra), that reads thus: “7. Finally we come to passages 21 to 23, which are claimed to be objectionable because they criticise the Hindu gods, particularly Ram and Hanuman. The author states that Hindus think it right to despise others on account of the arrogance based on caste, and hope to attain salvation thereby; and the gods and goddesses of Hinduism are modelled on these same repulsive ideals. The author states that Hindus think it right to despise others on account of the arrogance based on caste, and hope to attain salvation thereby; and the gods and goddesses of Hinduism are modelled on these same repulsive ideals. He then gives the story of Shambuk, a Sudra who dared, to become an ascetic and was killed by Ram on that account; and he asks how anyone can worship a god like Ram, who considered it his duty to commit the murder of a sage in this fashion. Similarly he asks why Sudras and Harijans worship Hanuman, who he says was unchaste; and in support of this assertion he cites a passage from the Valmiki Ramayana, according to which Bharat presented Hanuman with 16 maidens as a reward for bringing good news about Ram and Sita. The original text of the Valmiki Ramayan has been shown to us and we find that it describes both the killing of Shambuk by Ram and the presentation of the 16 maidens to Hanuman by Bharat. That being the case, it is difficult to see how the repetition of these stories can be said to be an insult to the Hindu religion or to promote disharmony and hatred. In the eyes of orthodox Hindus the Valmiki Ramayana has the status of a holy book or scripture; and nothing that is mentioned therein can possibly be taken offence to or construed as an insult to Hinduism, however much it may be at variance with modern ideas of morality and ethics.” (Emphasis by Court) 17. The passages in the book that fell for consideration of their, Lordships in Lalai Singh Yadav (supra), were apparently a well researched work, bearing precise reference to a religious scripture, that is the Valimiki Ramayan. The passages were written apparently with the object of overcoming the scourge of untouchability. They were written, as this Court would infer from the tenor of their Lordships' judgment, with a flavour of academic criticism about a social evil, and, in restrained language. 18. By contrast, the offending words on the WhatsApp Group by the applicant, prima facie wreak of a malafide outlook, that as already said, is the product of disgruntlement and disdain, if not mischief. They are not the part of a larger academic work with a theme about it, bearing precise reference to historical or religious texts. 18. By contrast, the offending words on the WhatsApp Group by the applicant, prima facie wreak of a malafide outlook, that as already said, is the product of disgruntlement and disdain, if not mischief. They are not the part of a larger academic work with a theme about it, bearing precise reference to historical or religious texts. They read more like a targeted attempt to insult a section of the society – a community identified by caste, and, some part by religion. 19. Learned counsel for the applicant has further placed reliance on the decision of the Hon'ble Supreme Court in Manik Taneja and another vs. State of Karnataka and another, (2015) 7 SCC 423 , which was a prosecution under Sections 353 and 506 IPC, launched by the police, for the comments that the accused/ appellants in that case posted on the Bengaluru Traffic Police Facebook Page, accusing a certain Kasim, a Police Inspector, of misbehaviour when the accused approached him, after an accident with a Auto Rickshaw, where a passenger sustained some injuries but the matter was amicably settled. The accused/ appellants were charge sheeted under Sections 353 and 506 IPC for posting those comments on the Bengaluru Traffic Police Facebook Page. It was in the context of these facts that the criticism of the police, on their Facebook Page, was found neither to be an offence under Section 353 IPC, or amounting to criticism, that would be criminal intimidation within the purview of Section 506 IPC. 20. To the understanding of this Court, the said authority is of slender assistance to the applicant here, as a completely different proposition of law on facts here, is apparently involved. 21. This Court, therefore, on facts obtaining in the present case is of prima facie opinion that an offence under Section 505(2) IPC is made out on the basis of the offending posts, attributed to the applicant. This Court, is also further of the prima facie opinion, that the offence would also fall under Section 505(1)(c), or may be, under one or the other cognate offences, but all that has to be judged by the Trial Court, at the stage of framing of charges. 22. This Court, is also further of the prima facie opinion, that the offence would also fall under Section 505(1)(c), or may be, under one or the other cognate offences, but all that has to be judged by the Trial Court, at the stage of framing of charges. 22. So far as the offence, under Section 66-A of the IT Act is concerned, the parties are not at much issue that provisions of Section 66-A aforesaid, have been struck down as ultra vires Article 19(1)(a) and not saved by Article 19(2) of the Constitution by the Hon'ble Supreme Court, in Shreya Singhal vs. Union of India, AIR 2015 SC 1523 . To that extent the offence charged under Section 66A of the IT Act would not at all be made out, the provisions being struck off the Statute Book as ultra vires. 23. This brings to the fore, the other issue raised by the learned counsel for the applicant that proceedings under Section 505(2) IPC are liable to be quashed, including the charge sheet, as there is no order of sanction by the Central Government or the State Government or the District Magistrate under Section 196(1A)(a) Cr.P.C. Learned counsel for the applicant has relied upon, in this regard, on a decision of this Court in Arun Jaitley vs. State of U.P., 2016(1) ADJ 76 , where in reference to a prosecution under Section 124-A and 505 IPC, this Court after a copious review of authority, in particular, the decisions in State of Maharashtra vs. Dr. Budhikota Subbarao, (1993) 3 SCC 339 , Manoj Rai and others vs. State of M.P., (1999) 1 SCC 728 , and of the Andhra Pradesh High Court in Kandi Buchi Reddy vs. State of Andhra Pradesh, 1999(3) ALD 193 , held that the bar under Section 196 Cr.P.C., so far as an offence under Section 505 IPC is concerned, strikes at the very root of the Magistrate's jurisdiction to take cognizance, in the absence of sanction by the State Government. The learned Judge in Arun Jaitley (supra), repelled what was perhaps a suggestion before His Lordship, that the Magistrate would have jurisdiction under Section 190(1)(c) Cr.P.C. to take cognizance de hors a sanction by the State Government under Section 196 Cr.P.C. The bar was held to be unqualified, in the following words: “9. The learned Judge in Arun Jaitley (supra), repelled what was perhaps a suggestion before His Lordship, that the Magistrate would have jurisdiction under Section 190(1)(c) Cr.P.C. to take cognizance de hors a sanction by the State Government under Section 196 Cr.P.C. The bar was held to be unqualified, in the following words: “9. In the opinion of the Court, therefore, cognizance taken under either of clauses (a), (b) or (c) of Section 190(1) would have to conform with the requirements of Section 196. This clearly flows from the opening words of Section 190 itself, which make it subject to the provisions of Chapter XIV. Section 505 of the Penal Code finds specific mention in Section 196 Cr.P.C. Admittedly, Section 124A stands comprised in Chapter VI of the Penal Code and would therefore, stand covered in clause (a) of Section 196. It therefore, clearly follows that the Magistrate could not have taken cognizance except with the previous sanction of the Government. 10. The language employed in Section 196 is para materia to that used in Section 197, which provision fell for consideration before the Supreme Court in State of Maharashtra (supra). Their Lordships held the requirements of that provision to be of a mandatory character. Taking note of the use of the words ''no' and ''shall' in the said provision, their Lordships proceeded to hold that it was abundantly clear that the bar on the exercise of the power of the Court to take cognizance of any offence is absolute and complete. The bar was held to stand extended to a Court from entertaining a complaint or even taking notice or exercising jurisdiction. The principles enunciated in State of Maharashtra (supra) stands applied in Manoj Rai (supra) and Kandi Buchi Reddy (supra). 11. The requirement of sanction as a prerequisite for taking cognizance was a principle which was reiterated by a learned Judge of the Calcutta High Court in Aveek Sarkar Vs. State of West Bengal. The learned Judge held that the absence of sanction was fatal and could not be brought within the pale of section 460 (e) of the Criminal Procedure Code or in other words characterized as an irregularity of procedure which would not vitiate proceedings. 12. State of West Bengal. The learned Judge held that the absence of sanction was fatal and could not be brought within the pale of section 460 (e) of the Criminal Procedure Code or in other words characterized as an irregularity of procedure which would not vitiate proceedings. 12. In light of the above, this Court holds that the Magistrate clearly erred in proceeding to exercise jurisdiction under Section 190(1)(c) and therefore, the order taking cognizance of the alleged offence and issuance of summons cannot be sustained. 13. The order of the Magistrate in light of the submissions advanced before this Court is liable to be tested on its merits also. The expression of views by the applicant in the article in question is stated to have in the opinion of the Magistrate resulted in a prima facie commission of offences referable to Section 124A and Section 505 IPC.” 24. Sri S.K. Pal, learned Government Advocate assisted by Sri J.B. Singh, learned A.G.A. has repelled the said submission and urged that the question of bar under Section 196(1-A)(a) can be raised at any subsequent stage, and, likewise, it is open to the State to file an order of sanction, at any stage of the proceedings. He has relied upon the decision of the Supreme Court in State of Karnataka and another vs. Pastor P. Raju, (2006) 6 SCC 728 , where it has been held: 8. A plain reading of this provision will show that no court can take cognizance of an offence punishable under Section 153-B or subsection (2) or sub-section (3) of Section 505 of the Penal Code or a criminal conspiracy to commit such offence except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. The opening words of the section are “No court shall take cognizance” and consequently the bar created by the provision is against taking of cognizance by the court. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 CrPC. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 CrPC. 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 of the State Government or of the District Magistrate, there will be no violation of Section 196(1-A) CrPC and no illegality of any kind would be committed. 25. He has further relied upon the decision of the Jharkhand High Court in Aveek Sarkar and others vs. State of Jharkhand & another, 2006 Cri LJ 4211, where in the context of bar under Section 196 Cr.P.C, it has been held thus: “21. Sanction under Sections 196 and 197 of the Criminal Procedure Code is sine qua non for proceeding against the accused in various provisions of law including one in the Indian Penal Code and for want of which accused cannot be convicted. 22. In the present case, some of the offence reported against the petitioners and other accused are under sections 153A, 153B, 295A, 505(2) and 120B of the Indian Penal Code and for which sanction under Section 196(1)(a)(b) of the Code of Criminal Procedure is essential for proceeding against the accused and according to judicial propositions the sanction may be obtained at any stage of the investigation or trial.” 26. Sri S.K. Pal has further relied upon an unreported decision of this Court in Mohd. Zuber and another vs. State of U.P. and another in Criminal Misc. Application No.15141 of 2005, where in the context of different offences involving the bar of Section 196(1) Cr.P.C., the Court refused to quash the order taking cognizance without sanction, and, relegated the accused to raise that objection before the Trial Court, in the first instance, with a direction to decide the same within a specified period of time. In Mobd. Application No.15141 of 2005, where in the context of different offences involving the bar of Section 196(1) Cr.P.C., the Court refused to quash the order taking cognizance without sanction, and, relegated the accused to raise that objection before the Trial Court, in the first instance, with a direction to decide the same within a specified period of time. In Mobd. Zuber and another State of U.P. and another (supra), it was held by this Court as follows: “The applicants moved an application in the Sessions Trial No. 607 of 2003, arising out of case crime No. 84 of 2001 bringing to the notice of the court that requisite sanction under Section 196 Cr.P.C. has not yet been granted and, therefore, the proceedings can not continue. Another representation before the District Magistrate, Kanpur Nagar was moved bringing to his notice that the allegations in the first information report at case crime No. 84 of 2001 are against the State. It was specifically mentioned in the said representation that previously the applicants were tried for similar offences and were given a Honourable acquittal. In the circumstances, the repeated prosecution for the same offence and that too without following the procedure of law, is only with a view to cause harassment. The prayer in the representation was that the District Magistrate may not grant permission/sanction for prosecution of the present case. Reliance has been placed on a decision of the Apex Court in the case of Dharmesh alias Nanu Nitin Bhai Shah Vs. State of Gujrat, 2002(2) J.I.C., 880 (S.C.). The Apex Court held that Section 196(1) of the Code enjoins that no court shall take cognizance of any offence punishable under Chapter VI I.P.C. except with prior sanction of the Central Government or the State Government. The sanction of the Government is precondition for cognizance of the offences specified in various clauses of Section 196 Cr.P.C. In the event, the case is committed by the Magistrate to the court of Sessions without there being a valid sanction in existence, the order taking cognizance of the offence as well as committal of the case can not be said to be legal. The Apex Court was of the view that if the Magistrate takes cognizance of the offence before committing the case to the court of Sessions, still the question remains whether the sanction is required to be produced before the Magistrate who takes cognizance at the first instance or before the Sessions Court which has exclusive jurisdiction to try the offence. Though the sessions court can not take cognizance of the offence as a court of original jurisdiction, it has necessarily to take cognizance before commencing the trial after committal. In the instant case, it appears that the learned counsel for the applicants did not raise the question of sanction either before the learned Magistrate nor before the learned Sessions Judge but has directly approached this Court, it was for the applicants to raise objection before the Magistrate at the stage of committal or before the learned Sessions Judge instead of directly invoking the inherent jurisdiction under Section 482 Cr.P.C. No doubt, the sanction required under Section 196(1) Cr.P.C. is prerequisite but it is for the applicants to raise their objection at the stage of taking cognizance, or at the stage of committal. It is apparent that the applicants have not raised any objection whatsoever and therefore, I am not inclined to quash the proceedings on this ground alone. However, I dispose of this application with liberty to the applicants to approach the court concerned and raise objection regarding non-existence/existence of sanction before the trial can proceed. In the event, such an objection is raised by the applicants within a period of four weeks from today, the same shall be decided by the courts within three weeks from the date, such an objection is raised along with certified copy of this order is produced before him.” 27. The decision of the Supreme Court in State of Karnataka and another vs. Pastor P. Raju (supra) indicates in the context of the facts of that case, that their Lordships were seized of a matter where the High Court had quashed an FIR, within 12 days of it being lodged, and, the matter was at the stage of investigation. It was not a case where a police report had been filed and cognizance taken, without an order of sanction. It was not a case where a police report had been filed and cognizance taken, without an order of sanction. In the decision of their Lordships under reference, it was held that the act of Magistrate in remanding accused to the judicial custody, does amount to taking cognizance of an offence, and, on the basis of an order of remand alone, the bar under Section 196(1-A) Cr.P.C. would not be attracted. It was observed that there is no occasion for the grant of sanction, soon after the FIR is lodged, nor such a power can be exercised before the completion of investigation and conclusion of evidence. In view of the said facts, the decision of the Supreme Court in Karnataka and another vs. Pastor P. Raju (supra) would not save the order of cognizance passed by the Magistrate or the proceedings before him, but at the same time, for reasons to be further stated, would not invalidate the investigation by the police or the charge sheet drawn up by them. 28. In the decision of Aveek Sarkar and others vs. State of Jharkhand and another (supra), relied upon by the State also, the bar of Section 196 was repelled by the High Court in relation to offences under Sections 153-A, 153-B, 295-A, 505(2) and 120-B IPC, in the context of facts where a police report under Section 173(2) Cr.P.C. had not yet been filed, and, no cognizance of the offence taken. 29. In Mohd. Zuber and another vs. State of U.P. and another (supra) the court, in the facts and circumstances of the case, directed the accused to raise objections before the Trial Court, regarding the absence of sanction, declining to quash the charge sheet but, the all encompassing bar under Section 196(1-A), completely forbidding the Magistrate from taking cognizance, without the requisite sanction of the Central Government, or the State Government, or the District Magistrate, has not been doubted. 30. The issue, also appears to have arisen much earlier, before the Supreme Court in State of Punjab vs. Raj Singh and another, 1998(1) A.Cr.R. 735 (S.C.), again in the context of facts, where the bar under Section 195(1)(b)(ii) Cr.P.C. was pleaded at the stage of investigation. 30. The issue, also appears to have arisen much earlier, before the Supreme Court in State of Punjab vs. Raj Singh and another, 1998(1) A.Cr.R. 735 (S.C.), again in the context of facts, where the bar under Section 195(1)(b)(ii) Cr.P.C. was pleaded at the stage of investigation. Their Lordships in State of Punjab vs. Raj Singh and another (supra), repelled the challenge holding that the bar comes into operation when the Court intends to take cognizance of an offence, and, does not affect the statutory power of the police to investigate a case, where a cognizable offence is disclosed. In this connection, in the decision of their Lordships last mentioned, it was held thus: “2. …........ From a plain reading of Section 195 Cr.P.C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1) Cr. P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. In other words, the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) Cr.P.C.........” 31. The question also arose before the Gujarat High Court in Yashwant Venilal Sanghvi vs. Sahdevsinh Dilubha Zala, (2006) 3 GLR 1873 , in the context of a prosecution under Sections 295-A and 505(1-C) IPC, where the bar of Section 196 was pleaded. In the said case also, the matter was at the stage of investigation, and, therefore, the court refused to quash the charge sheet and the ongoing investigation. However, the following principles were culled out in Yashwant Venilal Sanghvi vs. Sahdevsinh Dilubha Zala (supra): “88. The net result of the aforesaid discussion can be culled down as under: (i) FIRs cannot be thwarted at the pre-investigation stage. They must be permitted to reach to their logical end. However, the following principles were culled out in Yashwant Venilal Sanghvi vs. Sahdevsinh Dilubha Zala (supra): “88. The net result of the aforesaid discussion can be culled down as under: (i) FIRs cannot be thwarted at the pre-investigation stage. They must be permitted to reach to their logical end. (ii) That a fair look at Sections 295A and 505(1)(c) of the IPC penal provisions and contents of the patrika, offence as alleged in the FIR is prima facie made out. (iii) No prior sanction as envisaged under section 196 of the Code is required at the time of lodging of the FIR or carrying out the investigation but it is required only at the time of filing of the charge-sheet, when the Court takes cognizance; (iv) Investigation is required to be carried out by common agency i.e., State CID Crime, Gandhinagar. Of course, this shall be considered as a special case and shall not be treated as a binding precedent in any other case. (v) This Court has deprecated the practice of impleading respondent No.2 against whom no relief is claimed by making reckless allegations against her. Therefore, name of respondent No.2 deserves to be deleted from the petitions.” 32. This Court, therefore, finds that the order passed by the Magistrate taking cognizance of the police report is barred by Section 196(1-A) Cr.P.C. in so far as the offence under Section 505(2) IPC is concerned. So far as the offence under Section 66-A of the IT Act is concerned, the charge sheet insofar as the said provision is concerned is a nullity, the provision being declared ultra vires. The question, however, remains as to whether the charge sheet/ police report that has been filed in court, without the mandatory sanction under Section 196(1-A) Cr.P.C., is also liable to be quashed. This Court does not think so. The consistent authorities in State of Karnataka and another vs. Pastor P. Raju (supra), Aveek Sarkar and others vs. State of Jharkhand and another (supra), State of Punjab vs. Raj Singh and another (supra) and Yashwant Venilal Sanghvi (supra) overwhelmingly hold that the bar under Section 196 Cr.P.C. places an embargo on the jurisdiction of the Magistrate to take cognizance, but in no manner does it interfere with the right of the police, to investigate a cognizable offence, and, submit a report in Court. 33. 33. A reading of Section 196(1-A) opens with the words “no court shall take cognizance of …..”. The unequivocal legislative mandate is to forbid the Magistrate or court from taking cognizance of an offence under Section 505(2) IPC without the mandatory sanction under Section 196 Cr.P.C., but the absence of that sanction as held in the decisions aforesaid, and, patent from the words of the statute, do not affect the powers of the police not only to register an FIR but to investigate and submit a report under Section 173(2) Cr.P.C., in court. There is also no indication or an intendment in the statute, that a police report submitted without sanction, would be vitiated. It is only the jurisdiction of the Magistrate, or the court, that is barred for want of sanction. 34. The charge sheet would, thus, be valid if it is otherwise valid under the law, and, in case a supervening sanction under Section 196 Cr.P.C. were to be granted, it would always lift the bar on the jurisdiction of the Magistrate, or the court, to take cognizance of the offence, based on the same police report in accordance with law and rights of parties, obtaining on the day when the court/ Magistrate takes cognizance, after a supervening sanction. 35. The said issue was considered by the Punjab and Haryana High Court in State of Punjab vs. Sunder Singh, 1992 Cri LJ 1330, relied upon by Sri S.K. Pal, learned Government Advocate, where in the context of a change in law, after the charge sheet was first filed, it was held: “4. May be when the challan was presented, sanction of the appropriate authority for some of the offences was required and if immediately thereafter an application had been filed on behalf of the accused and before the amendment was made relying upon the decisions cited before the trial Magistrate, the accused could be discharged with the observation that the prosecution could file the challan again after obtaining necessary sanction. As a matter of fact, the prosecution could produce sanction during the trial also. If the prosecution was required to obtain sanction and then refile the challan even if the law had been amended in the mean time, the challan could be represented without obtaining the sanction. As a matter of fact, the prosecution could produce sanction during the trial also. If the prosecution was required to obtain sanction and then refile the challan even if the law had been amended in the mean time, the challan could be represented without obtaining the sanction. Even after the impugned order has been passed even now, as the law stands, no sanction is required as the offences, for which the accused are to be prosecuted, provide sentence of two years and above. 5. Requirement of sanction under Section 196 of the Code is procedural and not substantive. The Courts are required to give effect to the procedural law at all the stages of the trial. However, substantive law is to apply on the date offence was committed. (Emphasis by Court) 36. The aforesaid decision lends support to the view that the validity of a charge sheet, that is otherwise good in law, is not affected for want of sanction under Section 196 Cr.P.C.; it can always be re-filed, along with requisite sanction from the competent authority, by the prosecution. As such, the answer to question (a) formulated in paragraph 4 supra is, that posts on the Whats App Group called 'Friends For Ever' made by the applicant, a member of the Group, going by the content of the messages prima facie constitute an offence punishable under Section 505(2) IPC. The Messages do not constitute any offence under Section 66-A of the IT Act, as the said provision has been declared ultra vires. So far as the messages being an offence under any other law for the time being in force is concerned, the same is to be determined at the stage of framing of charges. 37. So far as the question (b) formulated in paragraph 4 supra is concerned, it is answered in the manner that proceedings under Section 505(2) IPC before the Magistrate including the order of cognizance, on the basis of which the impugned proceedings under the said Section have been taken are vitiated for want of sanction under Section 196(1-A) Cr.P.C. The charge sheet filed in relation to the offence punishable under Section 505(2) IPC is not vitiated. 38. In the result, this Application is allowed in part. 38. In the result, this Application is allowed in part. The proceedings of Criminal Case no.54 of 2018, State vs. Parmeshwar Bharati (arising out of Case Crime no.40 of 2017), under Section 505(2) IPC and Section 66-A of the Information Technology Act, Police Station Bijpur, District Sonbhadra, pending before the Judicial Magistrate, Duddhi, District Sonbhadra, are quashed. The prayer for quashing the charge sheet no.25 of 2017, dated 16.06.2017, in so far as it relates to Section 505(2) Cr.P.C., is refused. It will be open to the prosecution to file the said charge sheet again, after securing necessary sanction of the competent authority, under Section 196(1-A) Cr.P.C., in accordance with law.