Page No.# 1/5 vs The State Of Assam And Anr
2025 Latest Caselaw 2443 Gua

Gauhati High Court

Page No.# 1/5 vs The State Of Assam And Anr on 29 January, 2025

                                                                 Page No.# 1/5

GAHC010190302019




                                                           2025:GAU-AS:997

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

                            Case No. : Crl.Pet./483/2022


         AKHIL GOGOI
         SON OF LATE BOLURAM @ BOLU GOGOI

         R/O HOUSE NO. 40
         NIJORAPAR
         P.S. CHANDMARI
         GUWAHATI-03
         DIST. KAMRUP (M)
         ASSAM


          VERSUS

         THE STATE OF ASSAM AND ANR
         REP. BY THE PP
         ASSAM

         2:BHASKAR JYOTI BASUMATARY
         SUB-INSPECTOR OF POLICE

         IN-CHARGE SALAKATI OUTPOST
         DIST. KOKRAJHAR
          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

Page No.# 2/5

29.01.2025

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 07.05.2022 passed in PRC case No. 50/2021 arising out of GR case No. 230/2019 by the learned Chief Judicial Magistrate, Kokrajhar, whereby charges under Section 153A/505(c) of the IPC were framed and the order dated 16.01.2021 passed by the District Magistrate, Kokrajhar sanctioning the prosecution against the petitioner.

3. The aforesaid PRC case was initiated on the basis of an FIR, which was registered as Kokrajhar PS case No. 104/2019 under Section 153A/171G/505(1)

(b) of IPC read with Section 125 of the Representation of People's Act, 1951 and 1988. After completion of the investigation, the investigating authority filed charge-sheet dated 16.01.2021 being C.S. No. 01/2021 under Section 153A/171G/505(1)(b) of IPC read with Section 125 of the Representation of People's Act, 1951 and 1988.

4. It is the contention of Mr. S Borthakur, learned counsel for the petitioner that the learned Judicial Magistrate could not have passed the order dated 07.05.2022 framing charged under Section 153A/505(c) of the IPC as no valid sanction under Section 196(1) was there. According to him the sanction granted by the District Magistrate dated 16.01.2021 cannot be the basis to proceed with the prosecution inasmuch the offences charged are not under Section 153B or Subsection 2 or Subsection 3 of Section 505 or any criminal conspiracy to commit such offences.

5. 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 Page No.# 3/5

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.

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

7. 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 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 Page No.# 4/5

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."

8. 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.

9. 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.

10. Similarly, in the face of Section 196, 196(1A) & 196(2) of Cr.P.C. the Page No.# 5/5

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.

11. In the present case, the prosecution sanction dated 16.01.2021 granted by the District Magistrate shall not be sufficient inasmuch as the offences charged are under Section 153A/505(c) IPC and therefore, sanction under Section 196(1) shall be sine qua non for taking cognizance of such offences. The charges are neither framed for criminal conspiracy relatable to Section 153B IPC or 505(2) & (3) IPC nor under Section 153B or 505(2) and (3) IPC. Therefore, prosecution sanction prescribed under Section 196(1A) granted by District Magistrate shall not be sufficient to pass the impugned order dated 07.05.2022 and/ or to take cognizance of offences under Section 153A.

12. Therefore, the order dated 07.05.2022 passed in PRC case No. 50/2021 arising out of GR case No. 230/2019 is not sustainable under Law. Accordingly, same stands set aside.

13. 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.

14. LCR be sent back.

JUDGE

Comparing Assistant