Bombay High Court
Mohd Iliyas Khan Mustafa Khan And ... vs The State Of Maharashtra on 6 December, 2016
Bench: V.K. Jadhav
1 CRI APPLN NO.2084.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2084 OF 2007
1. Mohd. Iliyas Khan s/o Mustafa Khan,
age 29 years, Occ. Service,
R/o Mandi Bazar, Ambajogai,
Tq. Ambajogai, Dist Beed.
2. Mohd. Arif Khan s/o Latif Khan,
age 25 yrs, Occ. Education,
R/o Mandi Bazar, Ambajogai,
Tq. Ambajogai, Dist. Beed.
ig Applicants/orig accused.
VERSUS
The State of Maharashtra,
Through Police Inspector,
Ambajogai Police Station,
Tq. Ambajogai, Dist. Beed. ..Respondent..
...
Advocate for Applicants : Mr S S Kazi
APP for Respondents: Mr S P Tiwari
...
CORAM : V.K. JADHAV, J.
Dated: December 06, 2016
...
ORAL JUDGMENT :-
1. Learned counsel for the applicants seeks leave to
amend the prayer clause of the application. Leave
granted.
2. Being aggrieved by the order passed below exh.27
in SCC No.2075/2001, the original accused preferred
2 CRI APPLN NO.2084.2007.odt
this criminal application.
3. Brief facts, giving rise to the present application
are as under :-
On 28.9.2001 Police Inspector of P.S. Ambajogai
had filed a complaint against the applicants-accused for
having committed an offence punishable under section
10 of The Unlawful Activities (Prevention) Act, 1967 (for
short hereinafter referred to as the Act of 1967) and on
the basis of his complaint, crime no.71/2001 came to be
registered at Police Station, Ambajogai. It has alleged in
the complaint that on 3.7.2001, the complainant had
received information that some members of the Student
Islamic Movement of India, which is banned by the
Government are doing unlawful activities and on
inquiry, the applicants admitted that they are the
members of the said organization, however, they could
not produce any certificate or document to indicate that
they have left the said organization. After due
investigation, P.S. Ambajogai has submitted charge
sheet before the Judicial Magistrate First Class,
Ambajogai on 20.11.2001. On 26.11.2001 the
3 CRI APPLN NO.2084.2007.odt
prosecution has filed an application Exh.20 with a
prayer that original charge sheet be returned to the
prosecution for obtaining sanction from the
Government. The learned Magistrate by order dated
3.12.2001 rejected the said application exh.20. The
applicants-original accused on 19.4.2002 filed an
application exh.27 under section 17 of the the Act of
1967. It has contended in the application that sanction
of the Central Government as contemplated in section
17 of the Act of 1967 was not obtained before filing of
the charge sheet before the Court and therefore,
cognizance taken by the Magistrate and issuance of the
process thereon may be recalled and the applicants-
accused be discharged. The learned Magistrate,
Ambajogai by impugned order below Exh.27 dated
2.6.2007 rejected the said application. Hence, this
criminal application.
4. The learned counsel for the applicants submit
that, in terms of the provisions of section 17 of the Act
of 1967 the Court is not empowered to take cognizance
of any offence punishable under this Act except with the
4 CRI APPLN NO.2084.2007.odt
previous sanction of the Central Government or any
other officer authorized by the Central Government in
this behalf. Learned counsel submits that, prosecution
has not obtained sanction from the Central Government
as contemplated under section 17 of the Act of 1967
before filing of the charge sheet and even till today.
Learned counsel submits that, the same is also evident
from the contents of the application Exh.20 filed by the
concerned Investigating Officer before the Magistrate
seeking return of the original charge-sheet so as to
enable the prosecution to obtain sanction from the
Central Government as contemplated under section 17
of the Act of 1967. Learned counsel submits that, the
applicants were never the members of the students
Islamic Movement of India nor they have committed any
crime. The applicant no.1 had completed his B.Sc.
B.Ed. The applicant no.2 was a student of B.U.M.S.
course at the time of lodging of the complaint. At
present the applicant no.1 is working as teacher at
Ambajogai and the applicant no.2 is a private medical
practitioner at Ambajogai. Their antecedents are clear.
Learned counsel submits that, in view of the provisions
5 CRI APPLN NO.2084.2007.odt
of section 17 of the Act of 1967, the continuation of the
said case SCC No.2075/2001 without there being any
sanction from the Central Government to prosecute the
applicants-accused would be the abuse of the court
process.
5. Learned counsel in order to substantiate his
contentions places reliance on the following two cases :-
ig 1. Ashrafkhan @ Babu Munnerkhan
Pathan Vs. State of Gujarat reported in
AIR 2013 Supreme Court 217.
2. Criminal Application
No.1665/2009 (Khalid Akhtar Abdul
Latif Vs. State) decided by this Court on
30.6.2010.
3. Union of India and another Vs.
Ashok Kumar Mitra reported in AIR 1995
Supreme Court 1976.
6. As directed by this Court, vide order dated
29.11.2016, the applicant no.2 has filed his affidavit
stating therein that the applicant no.1 is in service and
working as Assistant Teacher at Mansoor High School,
Ambajogai and copy of the service certificate is annexed
with the affidavit. It has further contended that, the
6 CRI APPLN NO.2084.2007.odt
applicant no.2 has completed his medical education and
since then he is earning his livelihood by doing private
medical practice besides and west side of the police
station, Ambajogai. He is enrolled as Doctor bearing
registration No.I-60865-D. Copy of the same is also
filed alongwith affidavit.
7. The learned APP submits that, as per the order
dated 28.9.2001 passed by the Principal Secretary of
Government of Maharashtra, by referring the
notification issued by the Ministry of Home Department
dated 27.9.2001, has delegated all the powers which are
exercisable under section 7 and 8 of the said Act to the
State Government in relation to the said organization
and in terms of the said delegations of powers, said
powers are now exercisable by the Commissioner of
Police and District Magistrate under the State. The
District Magistrate by order dated 29.9.2001 under
section 8 of the Act of 1967 and authorization
thereunder directed to take action against both the
applicants. The learned APP submits that, the I.O in
the present case submitted an application on 29.8.2001
7 CRI APPLN NO.2084.2007.odt
to the District Magistrate Beed for prior permission for
taking action under section u/s 10 of the Act of 1967 for
filing charge sheet and on 4.11.2001 submitted charge
sheet against the applicants-accused before the Court.
The learned APP submits that, there is no substance in
the criminal application and the criminal application is
thus liable to be dismissed.
8.
Section 17 of the Act of 1967 (old) reads as
under :-
17. Prosecution for offences under this
Act :-
No Court shall take cognizance of any
offence punishable under this Act
except with the previous sanction of
the Central Government or any officer
authorized by the Central Government
in this behalf.
9. In the instant case, admittedly, no such sanction
is obtained by the prosecution before filing of the charge
sheet and even thereafter till today. The same is also
evident from the fact that the prosecution itself has
submitted an application Exh.20 before the Magistrate
8 CRI APPLN NO.2084.2007.odt
for return of the charge sheet for obtaining prior
sanction from the Central Government as provided
under section 17 of the Act of 1967. The learned APP by
referring affidavit-in-reply by one Abdul Majeed Abdul
Kader, Police Inspector, Ambajogai City Police station
submitted that in view of the notification of the Ministry
of the Home Affairs dated 27.9.2001 and as per the
order of the Principal Secretary of the Government of
Maharashtra, Home Department dated 28.9.2001, the
powers are delegated to the Commissioner of Police and
the District Magistrate under the State. On 29.8.2001,
the Investigating Officer in the instant case made an
application to the District Magistrate for permission to
take action under section 10 of the Act of 1967 as
against the present applicants-accused. Said
notification and order passed by the District Magistrate
are placed on record.
10. On careful perusal of the aforesaid notification and
the order passed by the District Magistrate, it appears
that said notification and order passed with regard
thereto are in respect of the delegation of the powers to
9 CRI APPLN NO.2084.2007.odt
prohibit the use of funds of an unlawful association and
further to power to notify places used for the purpose of
an unlawful association as contemplated under section
7 and 8 of the Act of 1967 (old).
11. In the instant case, charge-sheet came to be
submitted against the applicants-accused for the offence
punishable under section 10 of the act of 1967 (old) for
which previous sanction of the Central Government or
any officer authorized by the Central Government in
this behalf is necessary as contemplated under section
17 of the Act of 1967 (old).
12. The learned APP as directed by this Court has
taken specific instructions in this regard and accepted
that no previous sanction as contemplated under
section 17 is obtained before filing of the charge sheet
and even thereafter.
13. This Court by order dated 29.11.2016 by observing
the aforesaid facts further directed the applicants to file
an affidavit as to their present status and activities. It
10 CRI APPLN NO.2084.2007.odt
appears from the affidavit of the applicant no.2 that,
applicant no.1 is serving as an assistant teacher at a
School and applicant no.2 is carrying out his profession
as private medical practitioner peacefully in the
Ambajogai Town itself. Their antecedents are clear.
14. On perusal of the impugned order, it appears that,
the learned Magistrate has rejected the said application
mainly on the ground that there is no provision of
discharge of the accused in a summons trial and further
recalling of the order of issuance of process is prohibited
in view of the ratio laid down in Adalat Prasad's Case. It
appears from the contents of the application Exh.27
that the applicants have filed said application under the
provisions of section 17 of the Act of 1967. The learned
Magistrate has not at all considered the provisions of
section 17 of the Act of 1967 (old) though it was brought
to the notice of the Magistrate that no such sanction is
obtained before filing of the charge sheet. The Magistrate
has granted liberty to the prosecution to place on record
the sanction as contemplated under section 17 of the
Act of 1967 before commencement of the trial, during
11 CRI APPLN NO.2084.2007.odt
the trial, before conclusion of the trial. This approach of
the Magistrate is not only improper, incorrect, but also
illegal. Thus, continuation of the proceedings in the
aforesaid case bearing STC No.2075/2001 in absence of
any sanction as provided under section 17 of the Act of
1967 (old) would be abuse of court process. Hence, I
proceed to pass following order.
ig O R D E R
I. Criminal Application is hereby allowed in
terms of prayer clause 'B1' of the
application.
II. Rule is made absolute in the above terms.
III. Criminal application accordingly disposed
of.
sd/-
( V.K. JADHAV, J. )
......
aaa/-
