Allahabad High Court
Sardar Ali vs State Of U.P And Another on 3 January, 2023
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- APPLICATION U/S 482 No. - 29358 of 2022
Applicant :- Sardar Ali
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Avinash Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard Sri Avinash Pandey, learned counsel for the applicant, Sri Rajesh Mishra, learned AGA for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed to quash the impugned charge sheet dated 26.08.2020 as well as cognizance order dated 7.7.2021 in Case No. 3131 of 2021 arising out of Case Crime No 106 of 2000, under Sections 121, 121-A, 122 & 123 I.P.C., Police Station- Kandhala, District- Shamli, pending in the Court of Judicial Magistrate, Shamli.
Brief facts giving rise to this application are that the Station Officer, J.K. Tomar lodged an F.I.R. against two persons, namely Mohd. Waris and Ashfaq vide Case Crime No. 106 of 2000, under Sections 121, 121-A, 122 & 123 I.P.C., P. S. Kauthala, District- Muzaffarnagar on the allegations that the accused persons have waged war against government and are hatching conspiracy against the country and they were living in India without passport, however the applicant was not named in the first information report.
The police after concluding the investigation, submitted the charge sheet against the applicant and two other co-accused persons, on which, cognizance was taken on 9.6.2000, however the applicant was acquitted in Sessions Trial No. 820 of 2000 vide order dated 18.5.2007 passed by the Additional District and Sessions Judge, Court No. 7, District Muzaffarnagar. However, the other co-accused, who were convicted in the said trial, filed a Jail Appeal No. 8326 of 2007, which was allowed primarily on the ground that sanction has not been accorded by the State Authority and the Competent Authority as contemplated in Section 196 Cr.P.C. had not applied its mind and as such, the trial stands vitiated.
Consequent thereto, the Superintendent of Police, Shamli wrote a letter to the District Magistrate on 19.3.2020 for according sanction of the prosecution. Accordingly, the State Government accorded the sanction on 31.7.2020 and thereafter, S.H.O. P.S. Kandhala moved an application before the Court for re-trial of the case against all the accused persons.
Pursuant to the charge sheet submitted against the applicant, the Court took cognizance on 7.7.2021 and summoned the applicant to face trial. The applicant has challenged the order of cognizance dated 7.7.2021 primarily on the ground that since he had already been acquitted in Sessions Trial No. 820 of 2000 vide order dated 18.5.2007 passed by the Additional District and Sessions Judge, Court No. 7 Muzaffarnagar, as such, he cannot be retried.
Learned counsel for the applicant has further submitted that according to Article 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once. Learned counsel for the applicant has relied upon the judgment of Division Bench of Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Bhooraji reported in Law (SC) 2001 875.
Per contra, learned AGA has drawn the attention of the Court to the judgment in Jail Appeal No. 8326 of 2007 (Mohd. Waris @ Raza Vs. State) on 5.8.2019, wherein an observation has been made that the prosecution has not applied its mind under Section 196 Cr.P.C and sanction was not accorded by the State and in the absence of sanction by the Competent Authority under Section 196 Cr.P.C. it would be a serious flaw, which would vitiate the entire proceedings. However, subsequently pursuant to the order passed by the Division Bench, the State Authority after applying its mind has accorded sanction vide Government order dated 31.7.2020, which has not been challenged by the applicant and as such the trial has restarted.
Thus, in the present case, it is evident that the earlier trial was without jurisdiction but after obtaining sanction under Section 196 Cr.P.C., the second trial would not be barred as the necessary sanction for prosecution has already been granted by the Competent Authority as held by the Co-ordinate Bench of this Court in Application u/s 482 No. 9473 of 2022, Gayyur Vs. State of U.P. and another. Thus, once the Competent Authority has accorded the sanction under Section 196 Cr.P.C., in pursuance of the Division Bench order dated 5.8.2019, re-trial can always be undertaken.
Thus, the order passed by the court below issuing summons against the applicant is just, proper and legal and do not call for any interference by this Court.
The present application u/s 482 Cr.P.C. is devoid of merit and is accordingly, dismissed.
Order Date :- 3.1.2023/KU
