Disposed

Waseeul Hasan @ Munne and Another v. State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Home Lko. and Another

Allahabad HC20 Mar 2024A482/2448/2024

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the applicant challenged a summons and charge sheet under Section 295A IPC, claiming absence of statutory sanction under Section 196(1) Cr.P.C. The court stayed proceedings pending counter affidavit.

What did the court decide?

Proceedings and summoning order stayed till further orders pending counter affidavit from State.

Waseeul Hasan @ Munne and Another vs State of… — Criminal Trial and Appeal | Allahabad HC (2024)

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Court No. - 27

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Case :- APPLICATION U/S 482 No. - 2448 of 2024

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Applicant :- Waseeul Hasan @ Munne And Another Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Prin. Secy. Home Lko. And Another

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Counsel for Applicant :- Nadeem Murtaza,Akanksha Bajpayee,Anjani Kumar Mishra

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Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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1. Heard Shri Nadeem Murtaza, Advocate alongwith Shri Anjani Kumar Mishra, learned Counsel for the applicant, Shri Rishikesh Verma, learned A.G.A-I for the State-opposite party.

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2. The present application under Section 482 Cr.P.C. has been filed on behalf of the applicant, seeking quashing of the entire as well as consequential proceedings of Criminal Case titled: "State vs. Munne alias Waseeu Hasan and Others" arising out of Case Crime No.413/2013 registered at Police Station-Chowk, Lucknow pending in the Learned Court of Additional Chief Judicial Magistrate Fifth, Lucknow as well as for quashing of the summoning order dated 17.02.2020 passed by learned Court of Additional Chief Judicial Magistrate Fifth, Lucknow in Criminal Case titled "State vs. Munne alias Waseeul Hasan and Others" arising out Case Crime No.413/2013 registered at Police Station-Chowk, Lucknow whereby the summons have been issued against the applicant under Section 295A I.P.C. and also for quashing of the charge-sheet dated 30.12.2018 arising out of Case Crime No.413/2013 registered at Police Station-Chowk, Lucknow filed against the applicant under Section 295A I.P.C. a further prayer has been filed to stay the further proceedings of the aforesaid case.

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3. Learned Counsel for the applicant submits that the applicant is an innocent person and has been falsely implicated in the present case due to rivalry. He further submits that as per the F.I.R., the allegations leveled against the applicant and co-accused persons are that on 10.03.2013, opposite party No.2 was on duty to ensure public peace

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on the occasion of Moharram and that is when he found that on one of the Sabeels that was being administered by the applicant there was a banner on which "Hazrat Abu Lulu" was written and it caused communal tension in the locality as 'Hazrat Abu Lulu' was the assassin of Hazrat Umar, who is revered by the Sunni Sect. He further submits that during the course of investigation statement of informant i.e. opposite party No.2 was recorded under Section 161 Cr.P.C. on 29.11.2023 wherein he has reiterated the version of the F.I.R. with one material contradiction that the applicant and other co-accused had spread communal tension by writing "Hazrat Abu Lulu assassin of Hazrat Umar of Sunni Sect" on a banner and when they were asked to remove it they refused. He further submits that on 15.12.2013, statement of another witness, namely-Ajeet Pratap Singh was also recorded under Section 161 Cr.P.C., wherein he had accompanied the informant to the scene of crime and has further stated the version similar to that of the F.I.R., however, he has further state that the applicant and other co-accused had spread communal tension by writing "Hazrat Abu Lulu Assassin of Hazrat Umar of Sunni Sect" on a banner when they were asked to remove it they refused.

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4. Learned Counsel for the applicant further submits that the cognizance for an offence under Section 295A I.P.C. cannot be taken without obtaining prior sanction from the Central Government or State Government as the case may be. He has placed reliance on Section 196(1) Cr.P.C., which is quoted hereunder:-

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" 196.No Court shall take cognizance of -

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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

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a criminal conspiracy to commit such offence, or

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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

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Government."

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5. Thus, he submits that no sanction has been obtained either by the Central Government or the State Government as per Section 196(1) Cr.P.C. while summoning the applicant and the charge sheet has also been filed in a mechanical manner.

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6. In support of his argument he places reliance on paragraph No.2 of the judgment of the Hon'ble Supreme Court in the case of Manoj Rai vs. State of M.P. (1999) 1 SCC 728, wherein the Hon'ble Supreme Court was pleased to observe as under:-

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"2. Since the learned counsel for the State fairly states on instructions that no sanction was given in accordance with Section 196(1) of the Criminal Procedure Code to prosecute the appellants for the offence under Section 295-A of the Penal Code, 1860, we all this appeal and quash the impugned proceedings. Let the written instructions received by the learned counsel for the respondent-State in this regard be kept on record as desired by him."

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7. He further places reliance on the judgment of this Court in the case of Kamla Kant Singh v Chairman/Managing Director, Bennetta Colman and Company Ltd reported in 1987 SCC OnLine All 528 wherein following observations were made:

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"27. Now adverting to the last point about the bar of S. 196 of the Code, so far as offence under Ss. 153-A, 295-A etc. are concerned about wantonly giving provocation with intent to cause not and promoting enmity between different groups on grounds of religious, race, etc. or maliciously insulting religion etc., no court, shall take any cognizance except with the previous sanction of the State Govt. or the Central Govt. Nothing has been, stated in the statements of P.Ws. 1, 2 and 3 about the bar of S. 196 of the Code being removed. Consequently, without previous sanction of the State Government or the Central Govt. no court could take

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cognizance of the offence of criminal conspiracy or the offences punishable under Ss. 153-A and 295-A of the I.P.C."

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8. Thus, he finally submits that the impugned summoning order has been passed in ignorance of Section 196(1) Cr.P.C. since prior sanction under Section 196(1) Cr.P.C. has not been taken while summoning the applicant, therefore, some interim protection may be granted to the applicant.

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9. In view of the above, matter requires consideration on fact and law both.

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10. Learned A.G.A-I has accepted notice on behalf of State-opposite party. He prays for and is granted four weeks' time to file counter affidavit. Two week's time thereafter shall be available to learned Counsel for the applicant for filing rejoinder affidavit.

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11. Accordingly, list/put up this case along with APPLICATION U/S 482 No. - 1845 of 2024 on 16.05.2024.

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12. Till the next date of listing, further proceedings of Criminal Case titled: "State vs. Munne alias Waseeu Hasan and Others" arising out of Case Crime No.413/2013 registered at Police Station-Chowk, Lucknow pending in the Learned Court of Additional Chief Judicial Magistrate Fifth, Lucknow as well as the summoning order dated 17.02.2020 passed by learned Court of Additional Chief Judicial Magistrate Fifth, Lucknow in Criminal Case titled "State vs. Munne alias Waseeul Hasan and Others" arising out Case Crime No.413/2013 registered at Police Station-Chowk, Lucknow whereby the summons have been issued against the applicant under Section 295A I.P.C. and the charge-sheet dated 30.12.2018 arising out of Case Crime No.413/2013 registered at Police Station-Chowk, Lucknow shall remain stayed so far it relates to present applicant.

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Order Date :- 20.3.2024 prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Waseeul Hasan @ Munne and Another v. State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Home Lko. and Another

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Waseeul Hasan @ Munne and Another v. State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Home Lko. and Another

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