Page No.# 1/6 vs The State Of Assam And Anr
2025 Latest Caselaw 2440 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And Anr on 29 January, 2025

                                                                 Page No.# 1/6

GAHC010190302019




                                                           2025:GAU-AS:997

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

                          Case No. : Crl.Pet./1289/2019


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


          VERSUS

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

         2:DULAL MAHANTA
         SUB-INSPECTOR OF POLICE
          MORAN POLICE STATION
          DIST-DIBRUGARH
         ASSAM
          ------------
         Advocate for : MR. S BORTHAKUR
         Advocate for : PP
         ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                   BEFORE
              THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
                               ORDER

29.01.2025 Page No.# 2/6

1. Heard Mr. S Borthakur, learned counsel for the petitioner. 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 13.12.2017 passed in GR case No. 3117/2013 taking cognizance under Section 120A/ 121/ 124A/ 109/ 153/ 153A IPC by the learned Additional Chief Judicial Magistrate, Dibrugarh and the order dated 12.09.2019 passed in Sessions Case No. 152/2018 by the learned Sessions Judge, Dibrugarh, whereby charge under Section 124A IPC was framed.

3. The aforesaid GR case was initiated on the basis of an FIR, which was registered as Moran PS case No. 180/2017 under Section 120B/121/124A/109/153/153A of IPC. After completion of the investigation, the investigating authority filed charge-sheet dated 30.11.2017 being C.S. No. 130/17 under Section 120A/121/124A/109/153/153A IPC.

4. It is the only and limited contention of Mr. S Borthakur, learned counsel for the petitioners that the learned Magistrate had taken cognizance of offences under Section 120A/ 121/ 124A/ 109/ 153/ 153A of IPC under its order 13.12.2017, 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 153A IPC.

5. According to Mr. Borthakur, learned counsel for the petitioner when there is an absolute bar for taking cognizance of offence under Section 153A IPC, without the prosecution sanction, the cognizance taken by the learned Magistrate itself is a nullity and therefore it was the bounden duty Page No.# 3/6

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.

6. 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.

7. 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 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.

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

9. 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), Page No.# 4/6

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 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."

10. 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 Page No.# 5/6

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.

11. 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 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.

12. 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.

13. In the present case since cognizance of the offence was taken under Section 153A IPC and conspiracy under Section 120B to commit such offence, a prosecution sanction from the State Government shall be Page No.# 6/6

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 153A and not to any offence under Section 153B IPC or 505(2) & (3) IPC.

14. Therefore, the order of cognizance dated 13.12.2017 passed in GR case No. 3117/2013 is not sustainable under Law. Accordingly, same stands set aside.

15. Now coming to the order of the learned Sessions Judge, the learned Sessions 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 12.09.2019 passed in Sessions Case No. 152/2018 is interfered with so far the same relates to waiting for the prosecution sanction at the trial stage.

16. 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.

17. LCR be sent back.

JUDGE

Comparing Assistant