ORDER
1. Heard.
2. The petitioners in both these petitions are the accused in C.C. 554/94 facing trial for section 295a , i.p.c. before the learned Magistrate, on being charge-sheeted by the Thambrahalli P.S. Crime No. 16/92, H. B. Halli Taluk of Bellary District.
3. Certified copy of the order sheet in said C.C. 554/94 filed along with the petition discloses that the said crime No. 16/92 was booked by the police under section 295-A against these petitioners on complaint dated 22-2-1992 of CW 1 Rama Naik. On Investigation of the crime, the charge-sheet was laid for the said offence by the Investigating Officer ('I.O.' for short) on 30-7-1994, on the basis of the sanction under section 196 , cr.p.c. purported to have been granted by the competent authority for prosecution of the petitioners accused. The criminal prosecution of the accused in C.C. No. 554 of 1994 stands challenged by them in this revision on the ground that obtaining of requisite sanction under section 196 , cr.p.c. for the offence under section 295-a , i.p.c. from the State Government is a condition precedent, and that the so-called sanction that was obtained by the I.O. and was filed along with the charge-sheet in the court below is an invalid sanction since it does not conform to the legal requirements of section 196 , cr.p.c.
4. So the short point for consideration in this revision is :
Whether obtaining of sanction contemplated under section 196 , cr.p.c. for prosecution of the accused for the offence under section 295-a , i.p.c. is a condition precedent, and, if so, whether or not the said sanction order bearing No. MAG/LAW/194/94-95 dated 24th July, 1994 is a valid sanction order.
5. The material portions of section 196 , cr.p.c. are as extracted below :-
"196. Prosecution for offences against the State for criminal conspiracy to commit such offence (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, or
(b) ...... ....... ...... ........
(c) ...... ....... ...... ........
except with the previous sanction of the Central Government or of the State Government.
(2) ..... ....... ........ .........
(3) The Central Government or the State Government may, before according sanction under sub-section (1) or sub-section (1-A) and the District Magistrate may, before according sanction under sub-section (1-A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a Police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of Section 155 ."
6. Sub-section (1) of Section 196 is in mandatory terms. It leaves no room to doubt that prior sanction of the State Government to prosecute an accused for the offences mentioned therein, including section 295-a , i.p.c. is a condition precedent. Sub-section (3) visualises a situation for an order by the Central or State Government, as the case may be, for a preliminary investigation i.e. further investigation by the I.O. not below the rank of Inspector before the requisite sanction under Section 196(1) was accorded by either of the respective Governments.
In order to appreciate if the sanction in question of the State Government accorded by its order dated 24-7-1994 is a valid sanction, that sanction order is reproduced below :
"Preamble :-
The Police Sub-Inspector Tambrahalli Police Station of Hagari Bommanahalli Taluk in his letter 1st cited above has reported that there is one sanga formed by "Banajaljanangadvaru (Lambani) named as Sree Sevalal Yuvaka Sangha at No. 2 Hampsagar village of Hagaribommanahali Taluk said to be Lambani Vidya Samstha. It is further reported that on 21-2-1994 one Sri. Basavaraja S/o Erajjappa of Number 2 of Hampasagara Village and his supporters (31 members) have insulted the Banajar community (Lambanis) by throwing cowdung on the Banner Sevalli Vidya Samsta" with Chappali hara. Hence the police have registered case as per section 153-a and 295-a of ipc. The Circle Police Inspector Hagaribommanahalli has requested to accord permission to prosecute the accused under section 196(2) of the cr.p.c.
Hence the following :-
ORDER
Satisfying with prima facie reasons stated above and in exercise of powers vested on me under section 196(2) of cr.p.c. sanction is accorded to prosecute Basavaraja, S/o. Erajjappa and 31 members in Crime No. 16/92 under sections 153-a and 295-a i.p.c. The Inspector of Police Hagaribommanahalli is ordered to investigate the case under Section 196(3) of Cr.P.C.
Sd/-
C. S. Kedar
Deputy Commissioner and District Magistrate,
Bellary."
7. A combined reading of sub-sections (1) and (3) of 196 , Cr.P.C. brings the legal position clearly to the fore that if on consideration of the relevant material submitted to the competent authority by the I.O. for according sanction to prosecute the accused for any of the offences stated in the said provisions, if the authority forms the opinion that the material so placed before him is not sufficient for the purpose and that further relevant material was though available to the I.O. during investigation, the same was not collected by him, in that case the authority concerned could make an order directing the I.O. to make preliminary investigation or further investigation for the purpose of collecting that material. In that event I.O. has to carry on further investigation and after collecting further relevant material resubmit whole of such material to the competent authority for his decision to grant or refuse sanction for prosecution of the accused. Thereafter it is open for the said authority to take his final decision in that regard. If on consideration of that material the sanction for prosecution is accorded by him, then it will be the sanction order contemplated under section 196(1) of cr.p.c.
8. In the afore-quoted sanction order of the Government a direction has been given to the Police Inspector to hold a preliminary investigation into the alleged offence against the petitioners, when curiously at the same time it is stated therein, that the requisite sanction for prosecution under section 191(2) , cr.p.c. was also granted. So, it is manifest from the operative portion of the afore-quoted order that the concerned authority has failed to apply his mind to the relevant material submitted by the I.O. in deciding whether or not it was a fit case to accord the sanction for prosecution of the accused for the offence under section 295-a , i.p.c. inasmuch as the order states on the one hand that the said sanction was accorded and on the other it directs the I.O. to investigate the case under section 196(1) of cr.p.c. It is a self-contradictory order for the reason that when there is a direction to the I.O. under section 196(3) , cr.p.c. to make preliminary investigation into the case against an accused then, there cannot be any question of simultaneously according sanction by the competent authority to prosecute him for the said offence since that stage before the authority arises only on completion of investigation by the I.O. and on availability of whole of the relevant material collected by him during investigation. Therefore, the said sanction order dated 24-7-1994 stands vitiated by patent illegality by reason of non-application of mind by the competent authority and the same is not sustainable in law. As such, the criminal prosecution launched by the I.O. against the accused on the basis of such a void sanction order cannot be held as a legally sustainable criminal prosecution in law. Therefore, the petitions are entitled to succeed and the prosecution against the accused in C.C. 554/94 is liable to be quashed.
9. Hence, the petitions are allowed. The impugned sanction order bearing No. MAG/LAW/184/94-95 dated 24th July, 1994 of the Government of Karnataka is set aside and the prosecution of the petitioners accused in the said C.C. 554/94 for the offence under section 295-a , cr.p.c. launched on the basis of the said order is quashed.
The petitioners-accused are discharged.
10. Petitions allowed.
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