Jahiruddin v. State of U.P. and another). It is further prayed that this Hon'ble Court may
Case Details
Court No. - 77 Case :- APPLICATION U/S 482 No. - 13188 of 2024 Applicant :- Jahiruddin Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mithilesh Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
1. Heard Mr. Mithilesh Kumar Tiwari, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. Applicant-Jahiruddin, who is a charge sheeted accused, has approached this Court by means of present application under section 482 Cr.P.C. with the following prayer: "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the criminal proceedings of criminal case no. 1109 of 2017 (State Vs. Shakir and others) related to case crime no. 304/2017 u/s 147, 295-A IPC, Police Station Nagina District Bijnor and also quash the impugned order of cognizance dated 29.08.2017, impugned order dated 02.07.2018 and impugned order dated 22.12.2022 passed by learned ACM Nagina, Bijnor in the aforesaid case and also quash the order dated 04.12.2023 passed by Additional Session Judge Court No. 3, Bijnor in criminal revision no. 06/2023 (Jahiruddin Vs. State of U.P. and another). It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of criminal case no. 1109 of 2017 (State Vs. Shakir and others) related to case crime no. 304/2017 u/s 147, 295-A IPC, Police Station Nagina District Bijnor pending in the court of learned ACJM Nagina, Bijnor during the pendency of this case before this Hon'ble Court. Or pass such other and further order, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case." 4. Record shows that an FIR dated 24.05.2017 was lodged by first informant-opposite party-2 Surjan Singh and was registered as Case Crime No. 0304 of 2017, under Sections 147 and 295-A IPC, Police Station-Nageena, District-Bijnor. In the aforesaid FIR, five persons namely (1) Shakir, (2) A Rahoob, (3) Jahiruddin, (4) Shamshuddin and (5) Irfan have been nominated as named accused, whereas an unknown person has also been arraigned as an accused. 5. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He, ultimately, submitted the police report/charge sheet dated 01.06.2017, whereby all the five named accused including applicant were charge sheeted under Sections 147, 295-A IPC. 6. Upon submission of aforementioned police report, the jurisdictional Magistrate straightaway, vide order dated 29.08.2017, took cognizance upon aforementioned police report in terms of Section 190(1)(b) Cr.P.C. and simultaneously summoned the charge sheeted accused by a common Cognizance Taking Order/Summoning Order dated 29.08.2017. 7. Subsequently, the jurisdictional Magistrate i.e. the Additional Chief Judicial Magistrate, Nagina, Bijnor, vide framing of charge order dated 02.07.2018, framed charges against charge sheeted accused. 8. At this juncture, on behalf of accused including applicant, an application dated 23.11.2022 was filed before the jurisdictional Magistrate with the prayer that since no sanction has been accorded in terms of Section 195(6) Cr.P.C., therefore, the present criminal proceedings are barred under Section 196(1) Cr.P.C. 8. Aforementioned application came to be rejected by the jurisdictional Magistrate, vide order dated 22.12.2022. 9. Feeling aggrieved by the order dated 22.12.2022 passed by Additional Chief Judicial Magistrate, Nageena, District Bijnor the accused-applicant preferred a criminal revision before the Sessions Judge, Bijnor. The same was registered as Criminal Revision No. 06 of 2023 (Jahiruddin Vs. State of U.P. and Another). Aforementioned criminal revision also came to be dismissed by the Revisional Court, vide order dated 04.12.2023 passed by the Sessions Judge, Bijnor. 10. Thus, against orders dated 29.08.2017, 02.07.2018 and 22.12.2022, passed by the jurisdictional Magistrate as well as the order dated 04.12.2023 passed by the revisional Court, applicant has now approached this Court by means of present application under Section 482 Cr.P.C. 11. Present application came up for admission on 05.09.2024 and this Court passed the following order; "1. As prayed by the learned A.G.A., put up again as fresh on 12.09.2024. 2. By the next date, the learned A.G.A. shall obtain specific instructions as to whether sanction was accorded by the State Government qua the criminal prosecution of applicant or not. " 12. On the matter being taken up, learned A.G.A. submits that as per instructions received by him, it is apparent that sanction in terms of Section 196 (1) Cr.P.C. has not been taken prior to taking cognizance and summoning of charge sheeted accused including present applicant. 13. The issue that has cropped up for consideration in this application is whether the jurisdictional Magistrate could have taken cognizance upon the police report/charge sheet submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C. against accused including present applicant and summoned them to face trial, in the absence of sanction as required under Section 196(1) Cr.P.C. 14. In view of above, Section 196 Cr.P.C. is reproduced herein below:- "Section 196 Cr.P.C. - Prosecution for offences against the State and for criminal conspiracy to commit such offence - (1) No Court shall take cognizance of— (a) any offence punishable under Chapter VI or under section 153A, section 295A or Sub-Section (1) of section 505 of the Indian Penal Code (45 of 1860), or (b). a criminal conspiracy to commit such offence, or (c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. 1[(1A). No Court shall take cognizance of— (a). any offence punishable under section 153B or Sub-Section (2) or Sub- Section (3) of section 505 of the Indian Penal Code (45 of 1860), or (b). 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. (2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceeding; Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary. (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 Sub-Section (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." 15. The application dated 22.12.2022 filed by charge sheeted accused before the jurisdictional Magistrate was rejected on the grounds that the said application has been filed after cognizance has been taken and secondly the charges have also been framed against accused. As such, the said application is not maintainable at this belated stage. The revisional Court concurred with the view taken by the jurisdictional Magistrate and accordingly, it passed an order of affirmance. 16. Admittedly, sanction in terms of Section 196(1) Cr.P.C. is mandatorily required. The jurisdictional Magistrate could not have taken cognizance nor could have proceeded to frame charge in the absence of sanction which was required to be accorded by the competent Authority. The burden is upon the Court itself to ensure that the requisite sanction in terms of Section 196(1) Cr.P.C. has been obtained by the prosecution. Merely on the ground that no objection was filed by applicant/charge sheeted accused at the time of taking cognizance or at the time of framing of charge order can not be a ground to abandon the prohibition contained in Section 196(1)(a) Cr.P.C. The charge sheeted accused had no opportunity to appear before the jurisdictional Magistrate before the summoning order was passed. In view of above, the jurisdictional Magistrate was himself under a legal obligation to ensure that the requisite sanction has been obtained. The said burden could not be shifted upon the accused including the applicant nor the complaint of Section 196(1)(a) Cr.P.C. could have been abandoned by the jurisdictional Magistrate on the ground noted above. In view of above, both the Courts below have erred in law and fact in rejecting the application filed by the applicant with the prayer that the proceedings are barred under Sections 196(1)(a) and 196(3)Cr.P.C. 17. In view of the discussion made above, it is apparent that both the Courts below have committed a jurisdictional error in passing the orders impugned. Courts below have failed to exercise their jurisdiction diligently. The impugned orders are the outcome of exercise of jurisdiction by both the Courts below in a casual and cavalier fashion. Consequently, the same are vitiated in law and fact and therefore, liable to be set aside by this Court. 18. As a result, the present application succeeds and is liable to be allowed. 19. It is, accordingly, allowed. 20. The impugned Cognizance Taking Order/Summoning Order dated 29.08.2017, the framing of charge order dated 02.07.2018, the order dated 22.12.2022 passed by Additional Chief Judicial Magistrate, Nagina, Bijnor in Criminal Case No. 1109 of 2017 (State Vs. Mohammad Shakir and Others), under Sections 147, 295-A IPC, Police Station-Nagina, District-Bijnor and the order dated 04.12.2023 passed by Additional Sessions Judge, Court No.- 3, Bijnor in Criminal Revision No. 06 of 2023 (Jahiruddin Vs. State of U.P.) are, hereby, quashed. 21. In the facts and circumstances of the case, the parties shall bear their own costs. Order Date :- 20.9.2024 Arshad