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A. Alam Pasha v/s Ravishankar


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Criminal Petition No. 3632 of 2018

    Decided On, 29 May 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ALOK ARADHE

    For the Petitioner: Murthy D Naik, Advocate. For the Respondent: S. S. Naganand, Sr. Advocate, S. Sriranga, Advocate.



Judgment Text

(Prayer: This Criminal Petition is filed under Section 482 Cr.P.C. praying to quash the order dated 13.04.2018 passed by the X Addl. C.M.M., Bengaluru in PCR No.52688/2018 produced at Annexure-B and etc.)

1. Sri.Murthy D.Naik, learned counsel for the petitioner.

Sri.S.S.Naganand, learned Senior counsel along with Sri.Sriranga S., learned counsel for the respondent.

2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.

3. In this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code for short), the petitioner seeks quashment of order dated 13.04.2018 passed by X Additional Chief Metropolitan Magistrate, Mayohall, Bengaluru. In order to appreciate the petitioner's challenge to the impugned order, few facts need mention which are stated infra.

4. The petitioner had filed a complaint on 04.04.2018 before the X Additional Chief Metropolitan Magistrate against the respondent for offences under Section 153-A, 153-B, 295-A and 505(2) of the Indian Penal Code, 1860 among other offences. In the aforesaid complaint, a prayer was made to the jurisdictional police station, Bengaluru for registration of the first information report and investigation under Section 156(3) of the Code. The Magistrate by impugned order dated 13.04.2018 has dismissed the complaint filed by the petitioner on the ground that the previous sanction as contemplated under Section 196(1) of the Code has not been obtained from the Government. It has further been held that since the complaint has been filed without obtaining previous sanction from the Government as required under Section 196(1) of the Code, the same is not maintainable. In the aforesaid factual background, the petitioner has approached this Court.

5. Learned counsel for the petitioner submitted that the Magistrate ought to have appreciated that sanction as contemplated under Section 196(1) of the Code is necessary at the time of taking cognizance of the offences and was not required at the time when the petitioner was seeking a direction for investigation under Section 156(3) of the Code. It is further submitted that the impugned order has been passed in a mechanical manner which suffers from the vice of non-application of mind. In support of his submissions, learned counsel for the petitioner has referred to the decisions of the Supreme Court in 'R.R.CHARI Vs. STATE OF UTTAR PRADESH' AIR 1951 SC 207, 'STATE OF KARNATAKA AND ANOTHER Vs. PASTOR P.RAJU' (2006) 6 SCC 728, 'PRIYANKA SRIVASTAVA AND ANOTHER Vs. STATE OF UTTAR PRADESH AND OTHERS' (2015) 6 SCC 287 AND 'MANJU SURANA Vs. SUNIL ARORA AND OTHERS' (2018) 5 SCC 557.

6. On the other hand, learned Senior counsel for the respondent, while referring to the decision in R.R.CHARI, supra, has submitted that the aforesaid decision deals with the provisions of the Code of Criminal Procedure, 1898 and therefore, has no application to the fact situation of the case. It is further submitted that an order directing investigation under Section 156(3) of the Code cannot be passed in the absence of a valid sanction. It is also urged that the requirement of obtaining prior sanction is a jurisdictional requirement. It is also argued that the Magistrate, before ordering an enquiry, is required to apply its mind and the order by the Magistrate cannot be passed in a mechanical manner. In support of aforesaid submissions, learned Senior counsel for the respondent has placed reliance on the decisions of Supreme Court in 'SANKARAN MOITRA Vs. SADHNA DAS AND ANOTHER' (2006) 4 SCC 584 AND 'L.NARAYANA SWAMY Vs. STATE OF KARNATAKA AND OTHERS' (2016) 9 SCC 598.

7. I have considered the submissions made by both the sides and have perused the record. Before proceeding further, it is apposite to take note of Sections 196(1) and 196(1-A) of the Code in which offences under Sections 153-B and 505 have been inserted by amendment Act No.63/1980 with effect from 23.09.1980. The aforesaid provisions read as under: "196(1) No Court shall take cognizance of. -

a) any offence punishable under Chapter VI or under Section 153-A, [Section 295-A or sub-section (1) of Section 505] of the Indian Penal Code, 1860 (45 of 1860);

or

b) a criminal conspiracy to commit such offence; or

c) any such abetment, as is described in Section 108 - A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. 196(1-A) No Court shall take cognizance of.-

a) any offence punishable under Section 153-B 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."

8. The Supreme Court in the case of L.Narayana Swamy, supra dealt with the question of law namely whether an order directing further investigation under Section 156(3) of the Code can be passed in relation to a public servant in the absence of valid sanction. The Supreme Court was dealing with Section 19(1) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act' for short) which reads as under:

"19. Previous sanction necessary for prosecution - (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013."

9. Thus, from perusal of Section 196(1) and 196(1-A) of the Code along with Section 19(1) of the Act, leaves no manner of doubt that the aforesaid provisions are pari materia provisions. The Supreme Court, after reproducing Section 19 of the Act in paragraph 11 of the aforesaid decision, in paragraph 12 has held as under. The relevant extract of paragraph 12 reads as under:

"As is clear from the plain language of the said section, the Court is precluded from taking 'cognizance' of an offence under certain sections mentioned in this provision if the prosecution is against the public servant, unless previous sanction of the Government (Central or State, as the case may be) has been obtained. What is relevant for our purposes is that this section bars taking of cognizance of an offence. The question is whether it will cover within its sweep, order directing investigation under Section 156(3) Cr.P.C.? The High Court has taken the view, in the impugned judgment, that bar is from taking cognizance which would not apply at the stage of investigation by the investigating officer. It is observed that sanction is required only after investigation and that too when, after investigation, it is found that there is substantial truth in the investigation report as to what amounts to cognizance of offence."

10. The Supreme Court, while referring to decision in 'MANHARIBHAI MULJIBHAI KAKADIA Vs. SHAILESHBHAI MOHANBHAI PATEL (2012) 10 SCC 517, has held that the word 'cognizance' occurring in various sections of the Code is a word of wide import. In the aforesaid decision, the Supreme Court has taken note of a three Judge Bench decision of the Supreme Court in 'STATE OF U.P. Vs. PARAS NATH SINGH' (2009) 6 SCC 372, and has held that a Court is precluded from entertaining a complaint or taking note of it or exercising jurisdiction, if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty. The Supreme Court has also referred to decision in 'STATE OF W.B. Vs. MOHD. KHALID' (1995) 1 SCC 684 and has held that before taking cognizance, the Magistrate has to apply his judicial mind to the facts mentioned in the complaint or to a police report. After placing reliance on the decisions of the Supreme Court in PARAS NATH SINGH, supra and 'SUBRAMANIAN SWAMY Vs. MANMOHAN SINGH' (2012) 3 SCC 64, in paragraph 16 of the decision in the case of L.NARAYANA SWAMY supra, the Supreme Court has held that an order directing further investigation under Section 156(3) cannot be passed in the absence of a valid sanction.

11. In view of aforesaid enunciation of law by the Supreme Court, it is axiomatic that an order directing investigation under Section 156(3) of the Code cannot be passed in the absence of a valid sanction. Admittedly, in the instant case, the sanction has not been obtained prior to filing of the complaint. Therefore, the Magistrate has rightly held the complaint to be not maintainable. The reliance placed by the learned counsel for the petitioner in the case of R.R.CHARI, supra has no application to the obtaining factual matrix of the case as the same deals with provisions of the Code of Criminal Procedure, 1898. Learned counsel for the petitioner was unable to point out the analogous provisions like Sections 196(1) and 196(1-A) of the Code. Similarly, the decision in the case of STATE OF KARNATAKA AND ANOTHER, supra is concerned, the Supreme Court in the aforesaid decision was dealing with the issue of remanding the respondent to judicial custody and in the aforesaid context, it was held that order of remand did not amount to taking cognizance of the offence. Though Supreme Court in paragraph 8 in the STATE OF KARNATAKA AND ANOTHER supra, has held that there is no bar

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against registration of a criminal case or investigation by a police agency without prior sanction of the Central Government, however in the considered view of this Court, the law laid down by the Supreme Court in the case of L.NARAYANA SWAMY, supra which is later in point of time, binds this Court. It is pertinent to note that in case of MANJU SURANA supra, the correctness of the view taken by the Supreme Court in L.NARAYANA SWAMY supra has been referred to a larger bench. However it is trite law that till the larger bench of the Supreme Court deals with the issue, the ratio laid down in the case of L.NARAYANA SWAMY supra will bind this Court in view of Article 141 of the Constitution of India. 12. In view of preceding analysis, the order passed by the Magistrate neither suffers from any jurisdictional infirmity nor any illegality warranting interference of this Court in exercise of inherent jurisdiction of this Court under Section 482 of the Code. In the result, I do not find any merit in the petition. The same fails and is dismissed.
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