Page No.# 1/7 vs The State Of Assam And Anr
2025 Latest Caselaw 2430 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And Anr on 29 January, 2025

                                                                      Page No.# 1/7

GAHC010190302019




                                                                2025:GAU-AS:997

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Pet./931/2019

            AKHIL GOGOI AND 2 ORS.
            S/O LATE BOLO RAM GOGOI, R/O HOUSE NO. 40, NIZARAPAR, P.S.-
            CHANDMARI, GUWAHATI-781003, DIST-KAMRUP(M), ASSAM

            2: AZAD HAZARIKA @ MD. AZAD HAZARIKA
             S/O LATE ABDUL RAHIM HAZARIKA
             R/O WARD NO. 10
             NORTH LAKHIMPUR TOWN
             P.S.-NORTH LAKHIMPUR
             DIST-LAKHIMPUR
            ASSAM

            3: MD. SIDDIQUR RAHMAN @ MD. RAHMAN
             S/O LATE AHMED ALI
             R/O VILL-RANGPURIA
             P.S.-NORTH LAKHIMPUR
             DIST-LAKHIMPUR
            ASSA

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:SAROJ DOLEY
             SUB-INSPECTOR OF POLICE
             NORTH LAKHIMPUR POLICE STATION
             DIST-LAKHIMPUR
            ASSA

Advocate for the Petitioner   : MR. S BORTHAKUR, MS. P BORAH

Advocate for the Respondent : PP, ASSAM,
                                                                        Page No.# 2/7




                                      BEFORE
                 THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
                                  ORDER

29.01.2025

1. Heard Mr. S Borthakur, learned counsel for the petitioners. Also heard Mr. P Borthakur, learned Additional Public Prosecutor, Assam.

2. The present application is filed under Section 482 of the Code of Criminal Procedure, 1973 with a prayer to set aside an order dated

06.04.2017 passed in GR case No. 814/2013 by the Judicial Magistrate, 1 st Class, Lakhimpur, North Lakhimpur and the order dated 17.07.2019 passed in Sessions Case No. 148(N.L.)/2018 by the learned Sessions Judge, Lakhimpur, North Lakhimpur.

3. The aforesaid GR case was initiated on the basis of an FIR, which was registered as Lakhimpur PS case No. 354/2013 under Section 109/115/117/120B/121A of IPC. After completion of the investigation, the investigating authority filed charge-sheet dated 18.03.2017 numbered as C.S. No. 65/17 under the aforesaid provisions of law. By the impugned order dated 06.04.2017, the learned Magistrate took cognizance of the offences under Section 109/115/117/120B/121A of IPC and committed the matter for trial to the learned Session Judge, Lakhimpur.

4. The learned Sessions Judge by its impugned order dated 10.07.2019 refused to frame charges for want of sanction in terms of Section 196 Cr.P.C. and kept the trial pending till the prosecution sanction is obtained by the prosecuting authority.

5. It is the only and limited contention of Mr. S Borthakur, learned Page No.# 3/7

counsel for the petitioners that the learned Magistrate had taken cognizance of offences under Section 109/115/117/120B/121A of IPC under its order 06.04.2017, however, no prosecution sanction was obtained from the competent authority (in the case in hand by the State Government), which is a sine qua non as one of the offences is under Section 121A IPC.

6. According to Mr. Borthakur though the learned Sessions Judge after committal of the case, refused to frame charges for want of sanction in term of Section 196 Cr.P.C, however, the learned trial court instead of sending back the record to the court of the learned committal Magistrate by interfering with the order of cognizance kept the trial pending till prosecution sanction is granted, which is not permissible under law. It is the further contention of Mr. Borthakur that when there is an absolute bar for taking cognizance of offence under Section 121A IPC, without the prosecution sanction, the cognizance taken by the learned Magistrate itself is a nullity and therefore it was the bounden duty of the learned trial court to return the record to the committal court till a valid sanction is obtained by the prosecution. According to Mr. Borthakur mere sanction will not suffice rather a valid sanction is a sine qua non.

7. According to Mr. Borthakur, the learned Session Judge after committal of the case could not have framed charges against the petitioner as the order of cognizance itself is bad for the reason of prosecution sanction as required under Section 196(1)(a to d) Cr.P.C.

8. Mr. P Borthakur, learned Additional Public Prosecutor, Assam countering such argument submits that though it is true that prosecution sanction is required for taking cognizance of offence(s) in question but Page No.# 4/7

absence of same shall not vitiate the entire proceeding inasmuch as the State shall still be at liberty to grant the prosecution sanction. In this regard, Mr. P Borthakur, learned Additional Public Prosecutor, Assam places reliance on the judgment of Judgebir Sings alias Jasbir Singh Sarma alias Jasbir and Others Vs National Investigation Agency reported in 2023 SCC Online SC 543 and argues that the prosecution sanction granted by the competent authority can be produced and placed on record even after filing of charge-sheet.

9. I have heard the learned counsel for the parties.

10. As the effect and want of sanction under Section 196 Cr.P.C. is the bone of contention in the present lis, Section 196 Cr.P.C is quoted herein below.

"196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.--

(1) No Court shall take cognizance of--

(a) any offence punishable under Chapter VI or under section 153A, 2 [section 295A or sub-section (1) of section 505] of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government.

1A No Court shall take cognizance of--

(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.] (2) No Court shall take cognizance of the offence of any criminal conspiracy Page No.# 5/7

punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary. (3) The Central Government or the State Government may, before according sanction 5 [under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A)] 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."

11. Thus, it is clear from the aforesaid provision of law that so far relating to the offences enumerated in the aforesaid provision no court can take previous sanction of the Central Government or any officer authorised by the Central Government and when it relates to offences punishable under Section 153(b) or Section 505(2) and (3) of the IPC or any criminal conspiracy to commit such offence a District Magistrate is also empowered to grant sanction. In the considered opinion of this court, the Parliament in its wisdom has incorporated such a provision as a procedural safeguard to protect an accused from unwarranted prosecution.

12. The Hon'ble Apex Court in the case of Ashraf Khan Alias Babu Munne Khan Pathan and Another -Vs- State of Gujarat reported in 2012 SCC 11 606, while dealing with a similar provision (Section 20-A of the TADA Act), laid down the proposition that negative words can rarely be held directory. It was laid down that reading plain and ordinary Page No.# 6/7

meaning is the best guide to ascertain the intention of the legislature. Other methods to understand the meaning of the statute are resorted to only when the language is ambiguous and plain reading leads to absurd results. When a sentence starts with a negative word, no such ambiguity exists.

13. Similarly, in the face of Section 196, 196(1A) & 196(2) of Cr.P.C. the requirement of prior sanction cannot be said to be directory in nature inasmuch as such provision itself starts with the negative word "no court shall take cognizance". Such a sanction is required to enable a court to take cognizance of the offences enumerated under Section 196(1) (Clause a to c), under Section 196(1A), 196(2) Cr.P.C. and in absence thereof, the court cannot take cognizance not to say proceed further and frame charges.

14. In the present case since cognizance of the offence was taken under Section 121A IPC and conspiracy under Section 120B IPC to commit such offence, a prosecution sanction from the State Government shall be required to take cognizance of the aforesaid offences and sanction of District Magistrate shall not be sufficient inasmuch as the criminal conspiracy is relatable to Section 121A and not to any offence under Section 153B IPC or 505(2) & (3) IPC.

15. Therefore, the order of cognizance dated 06.04.2017 passed in GR case No. 814/2013 is not sustainable under Law. Accordingly, same stands set aside.

16. Now coming to the order of the learned Sessions Judge, the learned Session Judge was absolutely correct in deciding not to proceed with the trial until a valid sanction is produced by the prosecution, however, the Page No.# 7/7

learned Session Judge ought to have returned the record to the committal court pointing out the defect in the order of cognizance. Accordingly, the said order dated 17.07.2019 is interfered with so far the same relates to waiting for the prosecution sanction at the trial stage.

17. It is by now well settled that such want of sanction under Section 196 (1), 196(1A) & 196(2) Cr.P.C. is curable defect, depending upon the fact and circumstance of the case including the validity of the sanction and therefore, it is made clear that the prosecuting agency may still comply with the mandate of Section 196 (1) Cr.P.C. and in the event such compliance is duly made, the learned Magistrate shall exercise its power under Section 209 Cr.P.C. as per law.

18. LCR be sent back.

JUDGE

Comparing Assistant