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2019 DIGILAW 1293 (GAU)

Binoy Krishna Das v. State of Assam

2019-11-26

HITESH KUMAR SARMA

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JUDGMENT : Hitesh Kumar Sarma, J. This criminal petition has been filed under Section 482 of the Cr.PC, seeking quashment of the complaint in CR Case No. 429C /2010, pending in the court of the learned Judicial Magistrate First Class, Cachar, Silchar. 2. I have heard Mr. B.M. Choudhury, learned counsel for the accused-petitioner as well as Mr. B.B. Gogoi, leaned Additional Public Prosecutor, appearing for the State respondent No. 1. 3. The fact leading to the complaint is that the petitioner was holding the post of Chairman of Silchar Municipal Board who belonged to the Scheduled Caste community. There is a newspaper report publishing the statement of the petitioner that since he has become the Chairman from the Scheduled Caste community, some people has not been able to tolerate the same. The respondent Nos. 2 and 3 filed the complaint against the petitioner stating that he has spread hatred by giving such statement and therefore, he has committed an offence under Section 153(A)(1)(a) of the IPC. 4. After the complaint was registered, the learned Judicial Magistrate First Class, Cachar, Silchar examined the witnesses under Section 200 of the Cr.PC and thereafter had taken cognizance of the offences against the petitioner under Section 153(A)(1)(a) of the IPC. 5. Thereafter, the petitioner filed an application before the learned court below that for an offence under Section 153(A)(1)(a) of the IPC, sanction of the Government for prosecution is necessary and in the absence of such prosecution sanction, the case is liable to be dismissed. The learned court below, vide the impugned order, dated 30.04.2012 dismissed such plea of the accused-petitioner on the ground that cognizance of the offences has already been taken. 6. Now, the learned counsel for the petitioner has submitted that as defined in Section 21 of the IPC, Commissioner of Municipal Board is a public servant. The learned counsel for the petitioner has referred to the illustration to Section 21 of the IPC to substantiate his such submission. 7. On examination of the illustration to Section 21 of the IPC, this court finds that the petitioner being the Chairman of the Silchar Medical Board is a public servant. Therefore, to file the complaint against the petitioner, sanction of the Government is necessary as per the provision of Section 196 of the Cr.PC. 8. Mr. 7. On examination of the illustration to Section 21 of the IPC, this court finds that the petitioner being the Chairman of the Silchar Medical Board is a public servant. Therefore, to file the complaint against the petitioner, sanction of the Government is necessary as per the provision of Section 196 of the Cr.PC. 8. Mr. Gogoi, learned Additional Public Prosecutor has submitted that the petitioner being not a public servant, sanction is not required. However, we have already found that the Commissioner of the Municipal Board is a public servant and as such naturally the Chairman of the Silchar Municipal Board is a public servant. Since it has been held that the accused-petitioner is a public servant and therefore, to proceed against him for an offence under Section 153(A)(1)(a) of the IPC in the complaint involved in this case, sanction under Section 196 of the Cr.PC is a legal necessity. 9. Therefore, this court holds that in the complaint, referred to above, sanction to prosecute the accused-petitioner is necessary and without that the complaint cannot be proceeded against him. 10. That being so, the order, dated 03.09.2011 taking cognizance of offence against the accused-petitioner is set aside. If an application is made by the complainant before the learned court below for obtaining prosecution sanction, the same shall be proceeded with as per law. 11. This criminal petition stands disposed of accordingly. 12. The stay granted earlier, on 25.06.2012 hereby stands vacated. 13. Send back the LCR along with a copy of this judgment.