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Paresh Nath v/s State of Bihar

    CR.Misc 16083 Of 2006

    Decided On, 19 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE VGHANSHYAM PRASAD

    For the Appearing Parties: Nilu Agrawal, Manoj Kumar, Anil Kumar, Bajrang Lal Sharma, Gopesh Kumar, Advocates.



Judgment Text

GHANSHYAM PRASAD, J.

(1.) This application under Section 482 of the Code of Criminal Procedure has been filed to quash the order dated 7.3. 2006 passed by Sri Muni Lal Paswan, Additional Sessions Judge-XII, Patna in Criminal Revision No. 831/05 as well as the order of cognizance dated 20.8.2005 passed by Sri S.D. Dwivedi, Judicial Magistrate, Patna City in Complaint Case No. 915/2004 thereby and thereunder he has taken cognizance under Sections 295A and 501 of the Indi

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an Penal Code against the petitioners as also the entire criminal proceeding.

(2.) The main contention of the learned Counsel for the petitioners is that the cognizance has been taken under; the above provisions in complete violation of Section 196 of the Code of Criminal Procedure. Section 196 of the Criminal Procedure Code prohibits the court to take cognizance under Section 295A of the Indian Penal Code without prior sanction of the Central or State Government as the case may be Second submission of learned Counsel for the petitioners is that Section 501 is not applicable in this case as there is no allegation of defamation of any "person".

(3.) This Court finds substance in both submission of learned Counsel for the petitioners. Section 196(1) debars the court to take cognizance under Section 295A of the Indian Penal Code without prior sanction of the concerned government/authority, which runs as follows; 196. Prosecution for offences against the State and for criminal conspiracy to commit such offence;- (1) No Court shall take cognizance (a) any offence punishable under Chaapter VI or under Section 153-A, Section 295-A 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 abatement, 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.

(4.) Admitted fact is that sanction has not been taken by the complainant in this Case. Thus, the order of cognizance taken under Section 295A of the Indian Penal Code is not sustainable in the eye of law. Learned Additional Sessions Judge has dismissed the revision of the petitioners on the basis cf the decision of the Apex Court (Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr.) It appears that the learned Additional Sessions Judge has not properly appreciating the decision of the Apex Court. In that very decision the matter was with regard to prosecuting the government servant for committing murder with conspiracy with other accused persons by exceeding limit of official capacity/duty. Therefore, the Apex Court refused to interfere in the prosecution of the appellant on the basis of the bar provided in Sections 195 as well as 196 of the Code of Criminal Procedure (only for conspiracy). Thus, in the facts and circumstances stated above, it is not applicable in this case.

(5.) So far the applicability of Section 501 of the Indian Penal Code is concerned, it also does not apply in this case. The allegation is with regard to publishing and printing the offending and defamatory article against Chhath Puja under the caption "Chhath Andhviswash Ka Mahaparv". It is not against any particular or individual person. Section 501 of the Indian Penal Code reads as follows; 501. Printing or engraving matter known to be defamatory;- Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both

(6.) The word defamatory is defined under Section 499 of the Indian Penal Code. The word 'person' is significant in both the provisions. The offence of defamation can be committed against a 'person'. The 'person' has been defined in Section 11 of the Indian Penal Code which is as follow: Section 11:- "person" The word "person" included and Company any or Association or body of persons, (Sic) incorporated or not

(7.) Apparently (Sic) definition of person does not include any artificial or juristic person.

(8.) The allegation also does not disclose in what manner the Article in question was defamatory to any 'person' or the complaint, mere a bald allegation does not attract Section 501 of the Indian Penal Code. The Article is just an opinion of individual in good faith for public discussion. Therefore, cognizance under Section 501 of the Indian Penal Code is apparently bad and illegal.

(9.) Thus, having regard to the facts and circumstances of the case as wall as the settled principle of law, this application is allowed and the impugned orders including the revisional order is hereby quashed
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