HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 54 Case :- APPLICATION U/S 482 No. - 21801 of 2011 Petitioner :- Ashok Kumar And Another Respondent :- State Of U.P. And Another Petitioner Counsel :- Imran Ullah Respondent Counsel :- Govt.Advocate,Vipin Kumar Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants, Sri Vipin Kumar, learned counsel has appeared on behalf of the complainant and learned A.G.A. for the State respondent.
The present application has been filed for quashing the proceedings of complaint case no. 391 of 2009 under Section 295-A IPC pending before Additional Chief Judicial Magistrate V, Meerut.
It is contended by the learned counsel for the applicants that the applicants are the journalists and presently posted as Sr. Editor and ?Executive Editor of magazine "India Today"; that the complainant/opposite party no.2 filed a complaint under Section 295-A IPC read with Section 153-A, 504 IPC on the allegation that in the issue dated 11.9.2002 of the India Today magazine (Hindi Edition), a photograph of Lord Ganesha was printed as advertisement of ICC Championship Trophy to be held in Sri Lanka in the year 2002, showing Lord Ganesha holding a cricket ball. It was alleged in the complaint that the cricket ball has been made out by cow hide and publication of said photograph has hurt the feeling of complainant and other sections of Society, as no Hindu takes leather shoes, wallets etc. near religious places; that in support of complaint the complainant recorded his statement as well as statement of one Puneet Sharma, Advocate, and thereafter, the Magistrate, vide order dated 24th December, 2002 took cognizance in the matter under Section 295-A IPC only and summoned the accused;
It is further contended by the learned counsel for the applicant that as soon as the applicant came to know about the summoning order he moved an application/objection on 15th February, 2003 but the matter was adjourned on various dates due to various reasons. Ultimately, said application/objection of the applicant was rejected on 1st October, 2005 and the accused was directed to appear.
Learned counsel for the applicant has argued that the Hon'ble Supreme Court has held that if no sanction has been taken under Section 196(1), Cr.P.C. from the State or Central Government, no cognizance can be taken by the Magistrate, as he does not have any power to do so under the provisions of Code. Reliance in this regard has been placed upon the judgment/order of Hon'ble Apex Court in the matter of Manoj Rai and others Vs. State of M.P., reported in AIR 1999 SC 300, in support of his contention.
It is further contended by the learned counsel for the applicant that sanction under Section 196(1), Cr.P.C. is mandatory for the reason of policy, as the said power has been reserved by the Government to determine whether the offence against the State and other offences specified in the section should be taken cognizance of and as such the prosecution can be launched only after the sanction issued by the Central or State Government with an object to prevent the unauthorized person from intruding into the matters of the State. It is also contended that the aforesaid legal question was raised before the Magistrate but without considering the same, the objection/application of the applicant was dismissed by him. Thus, it is argued that, in absence of sanction, taking cognizance by the Magistrate is bad in law, therefore, the applicant may not be prosecuted and entire proceedings is liable to be quashed. It is lastly contended that the non-bailable warrant has been issued against the applicant on 21.6.2011.
Sri Vipin Kumar, learned counsel appearing for the complainant has contended that previous sanction is not necessary under Section 196(1), Cr.P.C. in a case like the present one and said irregularity, if any, can be rectified by taking sanction, subsequently if so required. It is also contended that even if the sanction is obtained subsequently, the said irregularity stands rectified. Reliance has been placed in the matter of Dharmesh alias Nanu Nitinbhai Shah Vs. State of Gujrat, reported in (2002) 6 SCC 370, in support of his contention.
Learned A.G.A. appearing for the State respondent has contended that action of the applicant is in violation of clause 22(v) of Norms of Journalist Conduct. For the sake of convenience clause 22(v) is being quoted below:
22. Caste, religion or community reference
i)...................
ii)..................
iii).................
iv).................
v) Commercial exploitation of the name of prophets, seers or deities is repugnant to journalistic ethics and good taste.
vi).................
vii)................
Perusal of the averments made in the present application reveals that neither the complainant nor the Magistrate had taken any prior sanction from the Central or State Government before taking cognizance for the alleged offence under Section 295-A IPC. Neither learned counsel for the applicant nor the learned counsel appearing for the complainant could assist the Court with regard to the fact whether any sanction has been obtained before taking cognizance or in between till date, specially in view of the fact that the applicant was initially summoned vide order 24th December, 2002, because if subsequently any sanction had been obtained then the legal position would be different.
After hearing the learned counsel for the parties and perusing the material on record, this Court is of the opinion that the question of sanction is a mixed question of law and fact, which cannot be decided in absence of complete facts as they exist on the record of the case. It is, thus, directed that if such objection regarding necessity of sanction and its desirability is raised by the applicant, the Additional Chief Judicial Magistrate V, Meerut is directed to decide it by speaking order strictly in accordance with law on the facts and circumstances of the case within a period of one month from the date of filing of this order before the concerned Magistrate.
If such objection/application is filed within two weeks from today, till the decision on the aforesaid objection filed by the applicant or for a period of six weeks from today, whichever is earlier, no coercive action shall be taken against the applicant in complaint case no. 391 of 2009 under Section 295-A IPC pending before Additional Chief Judicial Magistrate V, Meerut.
With the above observations/directions, this application is disposed of finally.
Order Date :- 20.7.2011 Ashish