AYAZ PASHA @ AYAZ v. STATE BY HOSAKOTE P S

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"2. Sri K Diwakara, learned advocate, contended that sanction for prosecution having not been obtained in terms of Section 196 of Cr.P.C., the cognizance taken and process issued, for the offence under Section 295-A is illegal. Reliance was placed on the decisions of Shalibhadra Shah and Others Vs. Swami Krishna Bharati and Another reported in 1981 Crl.L.J. 113 and Acharya Rajneesh Vs. Naval Thakur and Others reported in 1990 Crl.L.J. He submitted that the case being covered by the enunciation of law in the said decisions, the petitioner is entitled to the relief.

3. Sri C S Prasanna Kumar, learned advocate appearing for the respondent, on the other hand, supported the impugned order and sought for dismissal of the petition.

4. The complaint was filed on 22.5.2012 for the offences punishable under Sections 295, 295-A and 504 of IPC. By an order dated 07.11.2012, cognizance was taken only in respect of the offence punishable under Section 295-A and summons was issued.

5. In Manoj Rai and others vs. State of M.P. 1991 (1) SCC 728 prosecution having been initiated for an offence under Section 295-A of IPC, in the absence of sanction under Section 196(1) of Cr.P.C., the prosecution was found to be illegal and was quashed.

6. In State of Karnataka and another vs. K Rajashekara and another, reported in 2010(1) Kar.L.J. 47, the first respondent therein having filed a private complaint under

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Section 200 of Cr.P.C. against the second respondent alleging commission of offence punishable under Section 153-A, 295 and 295- A of IPC and the Magistrate having directed the investigation under Section 156(3) of Cr.P.C. by the Station House Officer, Madivala, this court was approached for relief. Having examined the rival contentions and finding that the cognizance had been taken, without obtaining the sanction contemplated under Section 196(1) Cr.P.C., it was held as follows:

"In the instant case however, the offences alleged are under Sections 153-A, 295 and 295-A of the Indian Penal Code - relating to promoting enmity between different groups of people and involving deliberate acts outraging the religious feelings of any class. And as pointed out by the learned Advocate General, Section 196(1) provides that no Court shall take cognizance of any offences under Section 153-A or Section 295-A of the IPC without the previous sanction of the Central Government or the State Government.

11. The object of Section 196(1) of the Criminal Procedure is to prevent unauthorized persons from intruding in matters of State by instituting prosecution and to secure that such prosecutions, for reasons of policy, shall only be instituted under the authority of Government. Further, the offences are of a serious and exceptional nature and deal with matters relating to public peace and tranquility with which the State Government is concerned. Therefore, provision has been made for obtaining prior sanction of the Government before cognizance is taken of any such offence.

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It is possible that in a given case the very filing of a prosecution, after tempers have cooled down, may generate fresh heat which could well be avoided by the Government by refusing to accord sanction. There is hence an underlying policy which is evident on a reading of the offences enumerated in Section 196(1) in respect of which prior sanction is a must before cognizance of such offence can be taken. Further, under sub-section (3) of Section 196, it is laid down that before sanction is accorded, the State Government may order a preliminary investigation by a police officer. This is apparently to decide on the course to be adopted by the State Government in respect of any particular incident and is therefore a crucial step, which cannot be by-passed.

Therefore, in my view having regard to the nature of offences alleged, prior sanction of the State Government was a must before the Magistrate could even direct an investigation by the jurisdictional police. It is this feature which would distinguish the present case as an exception to the general rule.

Hence, the writ petition is allowed. The proceedings before the Court of the VI Additional Chief Metropolitan Magistrate, Bangalore in PCR 18433 of 2007 are hereby quashed."

7. Learned advocate for the respondent did not contend that sanction of the Government was obtained under Section 196(1) of Cr.P.C. before instituting the complaint in question or before the cognizance was taken by the learned Magistrate. Sub

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Section (1) of Section 196 Cr.P.C. makes clear, that no court shall take cognizance of (a) any offence punishable under Chapter VI or under Section 153A, 295A or sub section (1) of Section 505 of IPC except with the previous sanction of the Central Government or the State Government.

8. In the instant case, learned Magistrate, in ignorance of the said mandatory provision has taken cognizance and has issued summons to the petitioner. The impugned action being illegal and the proceedings being abuse of process of the law cannot be sustained." Insofar as it concerns offence punishable under Section 188 of the IPC, this Court in Crl.P.No.2896/2022 disposed on 20.06.2022, following the judgment of the co-ordinate Bench in W.P.No.13328/2018 disposed on 18.06.2021, has held as follows:

"3. In the light of there being no dispute with regard to the fact that the issue stands covered by the judgment rendered by the Co-ordinate Bench of this Court, I deem it appropriate to close the proceedings by following the judgment so rendered by the Co-ordinate Bench of this Court. The Co- ordinate Bench has held as follows:

"4. The case of the prosecution in brief is as follows:

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The Commissioner of Police, Mangalore City promulgated the prohibitory order from

6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWS.5 to 8.

5. On receipt of charge sheet, the Magistrate by order dated 24.10.2016 took cognizance of the offences punishable under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act and summoned the accused to face trial for the said offences.

6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.

7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless

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in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence

(1) No Court shall take cognizance- (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or

(ii) of any abetment of, or attempt to commit, such offence; or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

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9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy, the Hon'ble Supreme Court held as follows:

"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

(Emphasis supplied)

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11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.

The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed."

4. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. Proceedings in C.C.No.388/2014 on the file of the II Additional Civil Judge and J.M.F.C., Nanjangud, Mysore, stand quashed."

3. The learned High Court Government Pleader would not dispute the aforesaid order and the fact that it covers the case at hand on all its fours. In the light of the afore- extracted judgments which covers the issue in the lis on

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all its fours, I deem it appropriate to terminate the proceedings initiated against the petitioners.

4. For the aforesaid reasons, the following:

ORDER

i. The Writ Petition is allowed.

ii. The proceedings in C.C.No.968/2020, pending before the Principal Civil Judge and JMFC, Hoskote, stand quashed.

Sd/-

JUDGE

NVJ

List No.: 1 Sl No.: 182