Allowed

Shivaji Sukhdeo Jaware v. the State of Maharashtra and Another

Bombay HC26 Feb 2014WP/16/2014

Case brief

AI extract

What is this about?

In a criminal writ petition, the High Court allowed the petitioner accused under Section 295-A IPC by quashing proceedings due to lack of mandatory sanction under Section 196 CrPC obtained by the investigating agency, directing them to seek sanction forthwith.

What did the court decide?

Petition allowed; prosecution quashed. Directs investigating agency to seek sanction from appropriate Government forthwith and file charge sheet with condonation of delay upon receipt.

Shivaji Sukhdeo Jaware Vs the State of Maharashtra and Another — Quashing and FIR | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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APPELLATE SIDE JURISDICTION

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CRIMINAL WRIT PETITION NO.: 16 OF 2014

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***

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Shivaji S/o Sukhdeo Jaware, Age: 58 years, Occu: Service as Jr. Engineer with MSPGLK, R/o: Deepnagar, 714, Bhusawal, Tq., Bhusawal, Dist. Jalgaon.

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... PETITIONER.

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Versus

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The State of Maharashtra. Through Police Inspector, Police Station, Nandurbar (City)

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Shaikh Anisoddin S/o Sk. Rahimoddin, Age: 30 yrs., Occ: Halwai Business, R/o: Ghoda Pir Mohalla, Nandurbar, Dist. Nandurbar. ...

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... RESPONDENTS ***

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Mr. Amit A. Mukhedkar, Advocate for the Petitioner.
Mr. P.P.More, A.G.P. for Respondent/ State.
Mr. Mujtaba G. Mustafa, Advocate for Respondent No.2.

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***

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CORAM:-ABHAY M. THIPSAY, J.
DATED:-26th FEBRUARY, 2014.

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ORAL JUDGMENT:

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1. Rule.

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2.By consent of parties, Rule is made
returnable forthwith.

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3.Respondents waive service. By consent, heard
finally.

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4. The petitioner is the accused in Regular

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Criminal Case No.105 of 2013 pending before the

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Judicial Magistrate, First Class, Nandurbar. The
case was initially numbered as Regular Criminal
Case No.361 of 2008.

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5.The case arises on a police report alleging
commission of an offence punishable under section
295-A of Indian Penal Code, by the petitioner.

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By the present petition, the petitioner is

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invoking the constitutional jurisdiction of this
Court and praying that the proceedings of the
said case be quashed.

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6.The ground on which the proceedings are
sought to be quashed is that, the cognizance of
the alleged offence could not have been taken in
the absence of a sanction as contemplated under
section 196 of the Code of Criminal Procedure
[hereinafter "the Code" for brevity].

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7.It is not disputed before me that no
sanction, as contemplated under section 196 of
the Code, has been obtained in the matter.

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8.A bare reading of section 196 of the Code

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makes it clear that the Court is not empowered to
take cognizance of an offence punishable under

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section 295-A of Indian Penal Code except with
the previous sanction of the Central Government
or of the State Government.

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9.The learned counsel for the Respondent No.2
i.e. original first information did not dispute
this legal position. He, however, attempted to
suggest that the question of sanction may be left
open, but the proceedings of the said case may
not be terminated at this stage on that ground.
He also submitted that the petitioner is deemed
to have waived the question of sanction because
of the inordinate delay on his part in such
contention being taken before the trial Court.

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10.I am afraid, this contention cannot be
accepted. The manner in which section 196 of the

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Code is worded, leaves no doubt that the said
provision is mandatory and creates a bar on the
very power and authority of the court to take
cognizance of the offences mentioned therein
without the previous sanction of the Central
Government or of the State Government. Such
previous sanction is a pre-condition for taking
cognizance of the offence in question.

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Therefore, the prosecution, which is instituted
without obtaining any sanction from the
Government, is not maintainable.

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11.However, there are some disturbing aspects of
the matter which need a mention here.

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12.The first information report was lodged on
28th January, 2008. The charge sheet came to be
filed on 22nd March, 2008. Apparently, the

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petitioner, who appeared before the Court, was
furnished with a copy of the charge sheet but did
not raise any grievance about the maintainability
of the prosecution for want of sanction under
section 196 of the Code. He raised that issue
before the trial Court, for the first time, on
16th July, 2013. This application, to discharge

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him for want of sanction, was rejected by the
learned Magistrate by an order dated 9th October,
2013pursuant to which the present petition came
to be filed.

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13.From the aforesaid dates and happenings, it
is apparent that the petitioner waited for a
considerable period before seeking discharge on
the ground of non-availability of sanction under

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section 196 of the Code. Under the provisions of section 470 of the Code, the period required in obtaining the sanction would be excluded from computing the period of limitation. It could be that the petitioner ensured that the period of limitation had already expired, and only thereafter raised the issue of want of sanction. Had he raised the issue of want of sanction earlier, steps could have been taken by the investigating agency to secure the sanction. In that case, the provisions of section 470 (3) would have made it possible to cure the defect without being affected by the 'Bar of Limitation'.

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13.Though, in view of the mandatory provisions

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of law, the prosecution, which is in progress,
cannot be permitted to be continued, while
exercising writ jurisdiction conferred on this
Court, this Court needs to see that real, proper
and substantial justice is done to the parties.

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There is absolutely no reason suggested by the learned A.P.P. as to why sanction was not sought

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at all by the investigating agency. The very

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absence of any reason in that regard makes me
doubt whether the sanction was deliberately not
sought. It is possible that this might have been
done with the object of protecting the
petitioner.

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14.Considering the nature of the offence

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punishable under section 295-A of I.P.C., which
arises out of a deliberate and malicious
intention of outraging the religious feeling of a

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class of citizens, if the prosecution of the
alleged offenders is allowed to fail only because

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the investigating agency did not seek the

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sanction at all, the feelings and sentiments of
such affected class of citizens shall be further

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hurt - and rightly so. It is not that the

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Government has taken a decision not to accord the
sanction but the sanction has not been applied
for at all; and this makes the matter quite
serious. Undoubtedly, the prosecution in the
instant case cannot be permitted to be continued

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without a valid sanction as it will create

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complications and even at a later stage would
render the entire trial proceedings null and

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void. Thus, while doing the right thing of
quashing the prosecution by exercising the writ
jurisdiction available to this court, another
right thing viz. of giving appropriate directions
to the investigating agency and to the State of
Maharashtra to set the things right, also should
be done.

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15.The petition is allowed in terms of prayer
clauses (C) and (D).

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16.However, it is directed that the

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investigating agency shall forthwith seek
sanction from the appropriate Government; and in
the event of such a sanction being received, take
appropriate steps in the matter for filing a
charge sheet with an application for condonation
of delay.

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17.A copy of this order be forwarded to the
Director General of Police, Maharashtra State,
who may examine why sanction to prosecute the

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petitioner was not sought at all by the
investigating agency and take further appropriate
action in the matter. A copy of this order be
also forwarded to the Chief Secretary to the

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Government of Maharashtra who may take such
further action in the matter as he may think fit.

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The Director General of Police, Maharashtra
State and the Chief Secretary to the Government
of Maharashtra be requested to acknowledge the
receipt of this order by them.

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18.The petition is disposed of in the aforesaid
terms.

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[ABHAY M. THIPSAY, J.]

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Dated:26/02/2014.
ans/16

Shivaji Sukhdeo Jaware v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Shivaji Sukhdeo Jaware v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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