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2018 DIGILAW 909 (HP)

Suresh Kumar Sharma v. State Of Himachal Pradesh

2018-05-16

DHARAM CHAND CHAUDHARY

body2018
JUDGMENT Dharam Chand Chaudhary, J —This judgment shall dispose of the present petition having arisen out of the order dated 23.11.2017 (Annexure PC) , passed by learned Additional Chief Judicial Magistrate, Palampur, Distt. Kangra (H.P.) , in an application under Section 197 Cr.P.C., filed by the petitioner (hereinafter referred to as the accused) , with a prayer to drop the proceedings initiated against him for want of prosecution sanction. 2. Learned trial Judge, on hearing the accusedpetitioner and the prosecution, has concluded that the matter was not agitated at an appropriate stage, i.e. when notice of accusation was put to him. Had the cognizance been taken against him wrongly, the order of taking cognizance should have been assailed easily in an appropriate proceedings. Also that the trial Court has no power to recall its own order, that too in a case which is at the stage of recording the prosecution evidence. The conclusion so drawn by learned trial judge, seems to be not legally sustainable for the reason that in a case of this nature, titled Devinder Singh and Others versus State of Punjab Through CBI , (2016) 12 SCC 87 , the Apex Court has held that the question of sanction may arise at any stage of the proceedings, i.e. during the course of police or judicial inquiry or recording the evidence at the stage of trial. However, whether sanction is necessary or not, is a question needs determination at different stages and with the help of material available on record as well as depending upon facts of each case. This judgment reads as follow:- "39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. 39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed. 39.7. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits. 39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. 3. Being so, the application filed by the accusedpetitioner should have not been dismissed for the reasons stated in the impugned order and rather on merits in the light of the law laid-down by the Apex Court in the judgment . The impugned order, as such, is quashed and set aside. Consequently, the case is remanded to learned trial Magistrate for deciding the application under Section 197 Cr.P.C. afresh on merits and in accordance with law. The petition is accordingly allowed and disposed of. The pending application(s) , if any, shall also stand disposed of. An authenticated copy of this judgment be sent to learned trial Court for being taken on record and compliance.