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Yogendra Prasad Singh v/s State Of Bihar

    Criminal Miscellaneous No.19024 OF 1998

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR

    For the Appearing Parties: Prasoon Sinha, Indu Bala Pandey, Advocates.



Judgment Text

RAKESH KUMAR, J

(1.) Two petitioners have challenged the order dated 12.8.1998 passed by the learned Sessions Judge, Sitamarhi in Cr.Revision No.226/98. By the said order, the learned Sessions Judge, Sitamarhi has rejected the Revision petition filed by the petitioners against the order dated 27.3.1998, whereby the learned Judicial Magistrate, 1st Class, Pupri at Sitamarhi had rejected the discharge petition filed on behalf of the petitioners.

(2.) The short facts of the case is that on 15.12.1992, an F.I.R. vide Pupri P.S. Case No.105 of 1992 was registered for offences under Sections 10 and 13 of the Unlawful Activities (Prevention) Act,1967(hereinafter referred to as the Act) on the written information given by the Sub-Inspector o

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f Police of Pupri Police Station. The said F.I.R. was lodged after arresting these petitioners and five others on the charge that petitioners were 2 members of Vishwa Hindu Parishad . Thereafter, it appears that the police after investigation submitted chargesheet and the learned Magistrate also took cognizance for said offences.

(3.) At the charge stage, a petition was filed on behalf of the petitioner for their discharge. In the discharge petition, a specific plea was taken by the petitioner that Vishwa Hindu Parishad was not banned under Section 3 of the Act nor the Central Government ever referred to the tribunal for its confirmation. It was submitted that without declaring an association as banned association under Section 3 of the Act, no one can be prosecuted on an allegation that he was a member of such association.It was further argued that the prosecution under the Act was launched without obtaining prior sanction from the Central Government. On these grounds, the discharge petition was filed. However, the learned Magistrate by its order dated 27.3.1998 rejected the discharge petition. While rejecting the discharge petition, the learned Magistrate has mentioned that since in this case cognizance has already been taken, it would not be appropriate to discharge the accused/petitioners.

(4.) Aggrieved with the order of rejection of discharge petition by order dated 27.3.1998, passed by the learned Judicial Magistrate, 1st Class, Sitamarhi, the petitioners filed a Revision petition vide Cr.Revision No.226 of 1998, which too stood rejected by the order dated 12.8.1998 passed by the learned Sessions Judge, Sitamarhi. From the order of the Revisional Court, it appears that the learned Sessions Judge examined the case diary and he observed that during investigation, some of the witnesses, i.e. the Block 3 Development Officer and Circle Officer, Pupri had stated that the District Magistrate, Sitamarhi under telegraphic message No.5623C dated 14.12.1992 had declared the association as illegal. It was further observed by the learned Sessions Judge that the prosecution will prove the Gazette and other legal sanction in course of trial and, accordingly, the learned Sessions Judge, rejected the revision petition filed by the petitioners.

(5.) Sri Prasoon Sinha, learned counsel for the petitioners, while challenging both the orders, firstly submits that either during the investigation or till the date of hearing on the discharge petition, no document was produced by the prosecution or Investigating Agency to show that any notification under Section 3 of the Act was ever issued declaring the association, i.e. Vishwa Hindu Parishad , as banned organization /association . He further submits that neither notification under Section 3 of the Act was ever produced, nor approval by the tribunal under Section 4 of the Act was brought on record. While referring to Section 17 of the Act, learned counsel for the petitioners submits that the prosecution has not even produced sanction for prosecution issued by the Central Government. He further submits that before taking cognizance, sanction from the Central Government in view of Section 17 of the Act was must. In absence of sanction being granted by the Central Government under the aforesaid provisions the order of cognizance itself becomes void and all subsequent orders becomes inoperative.

(6.) Smt. Indu Bala Pandey, learned A.P.P. for the State submits that these material can be looked into during the trial. She further submits that this is not the stage for examining all these 4 matters. She submits that against the rejection of discharge petition, the petitioners had already filed a Criminal Revision before the learned Sessions Judge,Sitamarhi and, as such, in the garb of filing of such petition under Section 482 of the Code of Criminal Procedure, the petitioners cannot be allowed to file a second Revision, which is barred under Section 397(3) of the Code of Criminal Procedure.

(7.) I have also examined the materials available on the record as well as both the impugned orders. In this case prima facie I am satisfied that the entire proceedings was unauthorized. Merely by way of mentioning the penal provisions in the F.I.R., one cannot be prosecuted unless it is satisfied that such offence was actually committed by a person. On perusal of the F.I.R. Itself, it is clear that the petitioners along with others were arrested on an allegation that they were members of an unlawful association, i.e. the