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IN THE HIGH COURT OF ALLAHABAD
Sudhir Agarwal, Rajendra Kumar, JJ.
Mohd Waris @ Raza - Appellant
Vs.
State Of U.P. - Respondent
Jail Appeal No. 8326 of 2007; Criminal Appeal No. 3779 of 2007
Decided On : 05-08-2019
Sanction Requirement - Offences under Sections 121, 121-A, 122 and 123 IPC - Summary of Judgement
Fact of the Case:
The appeals arose from a common judgment convicting the accused-appellants under various sections of the Indian Penal Code (IPC), Foreigners Act, Passport Act, and Arms Act. The accused-appellants were charged with waging war against the Government of India, conspiracy to commit offences against the State, and possession of arms and ammunition.
Finding of the Court:
The Court found that the accused-appellants were convicted and sentenced under Sections 121, 121-A, 122, and 123 IPC without the required prior sanction from the Central Government or State Government, as mandated by Section 196(1) Cr.P.C. The Court set aside the convictions and sentences under these sections due to the absence of the necessary sanction.
Issues: The main issue before the Court was the absence of the required prior sanction under Section 196(1) Cr.P.C. for the offences under Sections 121, 121-A, 122, and 123 IPC.
Ratio Decidendi: The Court held that the absence of the required prior sanction under Section 196(1) Cr.P.C. for the offences under Sections 121, 121-A, 122, and 123 IPC was a serious flaw and an illegality that vitiated the entire proceedings. The Court also emphasized the incompetence and negligence of the prosecution authorities in ignoring the statutory provisions pertaining to previous sanction.
Final Decision: The Court partly allowed the appeals, setting aside the convictions and sentences of the accused-appellants under Sections 121, 121-A, 122, and 123 IPC. However, the convictions and sentences under other sections, including Sections 13/14 of Foreigners Act, 1946 and Sections 25 Arms Act, 1959, were confirmed, and the accused-appellants were directed to serve out the sentences awarded by the Trial Court.
JUDGMENT :
Sudhir Agarwal, J.
Both the aforesaid appeals arise out of common judgment and order dated 18.05.2017 passed by Sri C.K. Kulshrestha, Additional District and Sessions Judge, Court No.7, Muzaffar Nagar in Sessions Trial No. 820 of 2000, under Sections 121, 121-A, 122, 123 IPC, under Section 13 and 14 of Foreigners Act, 1946, under Section 3 of Passport Act, 1967 and under Sections 25/27 Arms Act, 1959. Jail Appeal No.8326 of 2007 has been filed by Mohd. Waris @ Raja under Section 383 Cr.P.C. through Jailor, Central Prison, Bareilly against his conviction and sentence whereas Criminal Appeal No. 3779 of 2007 has been preferred by accused-appellant Ashfaq @ Nanhey under Section 374(2) Cr.P.C. against his conviction and sentence.
2. By the impugned judgment and order, both accused-appellants Mohd. Waris @ Raja and Ashfaq @ Nanhey have been convicted under Sections 121, 121-A, 122 and 123 IPC and each of them has been sentenced under Section 121 IPC to undergo life imprisonment along-with fine of Rs.1,00,000/- each. In the event of default in payment of fine they have to undergo further imprisonment of one year. Both appellants have further been sentenced to ten years imprisonment and a fine of Rs.10,000/- each under Section 121-A IPC. In default of payment of fine they have to suffer ten months additional imprisonment. They have been further sentenced to ten years imprisonment and fine of Rs.10,000/- under Section 122 IPC. In the event of default of payment of fine, they shall undergo ten months additional imprisonment. They have been sentenced to seven years imprisonment under Section 123 IPC along-with fine of Rs.7,000/- each, and in default of payment of fine, provision for seven months additional imprisonment was made. Further under Section 13 and 14 of Foreigners Act, 1946, both appellants have been sentenced to three years imprisonment and a fine of Rs.3,000/- each, and in case of default in payment of fine they have to undergo further three months additional imprisonment.
3. Accused-Appellant Mohd. Waris @ Raja has been acquitted of the charge under Section 3 of Passport Act, 1967 and under Section 3 of Explosive Substances Act, 1908. Accused-appellant Ashfaq @ Nanhey has been acquitted of the charge under Section 27, Arms Act, 1959.
4. Accused-Appellant Ashfaq @ Nanhey has been convicted and sentenced under Section 25 Arms Act, 1959 to undergo two years imprisonment along-with fine of Rs.2,000/-. In case of default in payment of fine he has to undergo two months additional imprisonment.
5. Other co-accused, namely, Gayur, Mustaqeem and Sardar Ali have been acquitted of the charges under Sections 121, 121-A, 122 and 123 IPC.
6. All the sentences of accused appellants have been ordered to run concurrently.
7. For the sake of convenience and ready reference, conviction and sentences awarded to respective accused-appellants as well as acquittal under different sections may be shown in the form of a chart as under:-
| S.Nos. | Jail Appeal/Criminal Appeal | Name of Accused Appellants | Sessions Trial Nos. | Tried U/S | Sentence imposed/Acquittal |
| 1 | Jail Appeal No.8326 of 2007 | Mohd. Waris @ Raja | 820/ 2000 | 121 IPC | Life Imprisonment + Fine of Rs.1,00,000/- |
| 121-A IPC | Ten years imprisonment + Fine of Rs.10,000/- |
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| 122 IPC | Ten years imprisonment + Fine of Rs.10,000/- |
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| 123 IPC | Seven years imprisonment + Fine of Rs.7,000/- |
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|
| 13/14 Foreigners Act | Three years imprisonment + Fine of Rs.3,000/- |
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| 3 Passport Act | Acquitted |
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| 821/2000 | 3 of Explosive Substances Act | Acquitted |
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| 2 | Criminal Appeal No.3779 of 2007 | Ashfaq @ Nanhey | 820/ 2000 | 121 | |
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