Uttarakhand High Court

C482/699/2022 on 29 June, 2022

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


                         29th JUNE, 2022

 CRIMINAL MISCELLANEOUS APPLICATION NO.699 of 2022



Between:

Jishan Alam                                   ........Applicant


and

State of Uttarakhand and Another               .....Respondents



Counsel for the Applicant        :    Mr. Mohd. Safdar.

Counsel for the State/
Respondent No.1                  :    Mr. Pratiroop Pandey,
                                      learned A.G.A. for the
                                      State.

Hon'ble Alok Kumar Verma,J.

The applicant-accused, Jishan Alam, has invoked

the inherent jurisdiction of this Court under Section 482 of

the Code of Criminal Procedure, 1973 to quash the entire

proceedings of Criminal Case No.5279 of 2021, "State vs.

Jishan Alam", pending before the court of Chief Judicial

Magistrate, Haridwar.

2. After completion of the investigation, the

charge-sheet was filed under Section 295A of IPC. The

learned trial court took the cognizance and passed the

summoning order under Section 295A of IPC against the

present applicant.

3. According to the First Information Report, on

04.11.2020, the present applicant had made a statement

with the intention of causing communal violence and

disputes between two communities.

4. On 18.05.2022, Mr. Mohd. Safdar, the learned

counsel for the applicant, had argued that in view of

Section 196 of the Code of Criminal Procedure, 1973

(hereinafter referred to as, "the Code"), cognizance of

offence punishable under Section 295A of IPC cannot be

taken except on the previous sanction of the Central

Government or the State Government. After the said

submissions, the learned counsel appearing for the State

had sought time to get instructions on the point, as to

whether, sanction as required under Section 196 of the

Code has been taken or not?

5. On 27.06.2022, the learned counsel appearing

for the State had submitted that the trial court has taken

cognizance for the offence punishable under Section 295A

of IPC without any sanction order. However, the learned

counsel for the State requested two days' time to file

supplementary affidavit regarding sanction.

6. Today, Mr. Pratiroop Pandey, the learned

Assistant Government Advocate fairly conceded that in the

present matter sanction was not given.

3. 7. Heard Mr. Mohd. Safdar, the learned counsel for

the applicant, and, Mr. Pratiroop Pandey, the learned

A.G.A. for the State.

8. Mr. Mohd. Safdar, the learned counsel for the

applicant-accused has relied upon a judgment of this Court

in "Dr. Bharam Singh vs. State of Uttaranchal and

Others, 2010 SCC OnLine Utt 2276". In the said

matter, this High Court observed that prior sanction of the

State before taking cognizance in the offence under

Section 295A of IPC is necessary and without sanction, no

cognizance can be taken by the court, irrespective of the

case being a State case or a complaint case. The offences

mentioned in Section 196 of the Code, for which, a prior

sanction has been made necessary, because, these

offences relate to public peace, tranquility and communal

harmony. These offences are not only of a serious nature

but have a fallout on public peace, therefore, a prior

sanction of the Government has been made mandatory, as

sometimes mere prosecution itself may generate

communal disharmony. Offence relating to Section 295A of

IPC is of such a nature.

9. Section 295A of IPC reads as under:-

"Section 295A:- Deliberate and

malicious acts, intended to outrage

religious feelings of any class by

insulting its religion or religious

beliefs.- Whoever, with deliberate and

malicious intention of outraging the

religious feelings of any class of citizens of

India, by words, either spoken or written,

or by signs or by visible representations or

otherwise, insults or attempts to insult the

religion or the religious beliefs of that class,

shall be punished with imprisonment of

either description for a term which may

extend to three years, or with fine, or with

both."

10. In the instant facts, admittedly, there is no

sanction as envisaged under Section 196 of the Code.

11. Section 196 of the Code reads as under:-

"Section 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, Section 295 A 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

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 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."

12. "No Court shall take cognizance of" means that

there is an absolute bar. Therefore, sanction is mandatory

for cognizance of offence punishable under Section 295A

of IPC, and, where Magistrate takes cognizance without

sanction, the prosecution is liable to be quashed.

13. Section 482 of the Code envisages three

circumstances in which the inherent jurisdiction may be

exercised, namely, "to give effect to an order under the

Code, or, to prevent abuse of the process of any Court, or,

to secure the ends of justice".

14. Section 482 of the Code reads as follows:-

"Section 482:- Saving of inherent power of

High Court.- Nothing in this Code shall be

deemed to limit or affect the inherent powers of

the High Court to make such orders as may be

necessary to give effect to any order under this

Code, or to prevent abuse of the process of any

Court or otherwise to secure the ends of

justice."

15. Taking the cognizance for the offence punishable

under Section 295A of IPC without sanction is bad in law.

Therefore, this Court is of the view that the prosecution in

question is an abuse of legal process.

16. Resultantly, the entire proceedings of Criminal

Case No.5279 of 2021, "State vs. Jishan Alam", pending

before the Court of Chief Judicial Magistrate, Haridwar, are

liable to be quashed. Consequently, the Criminal

Miscellaneous Application (No.699 of 2022), filed under

Section 482 of the Code is allowed and the entire

proceedings of the said Criminal Case No.5279 of 2021,

"State vs. Jishan Alam", pending before the Court of Chief