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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
BRIJ RAJ SINGH, J.
Gayyur – Appellant
Versus
State of U.P. and Another – Respondents
Application U/s 482 No. 9473 of 2022
Decided On : 17-08-2022
Sanction - Criminal Proceedings - Sections 121, 121-A, 122 and 123 I.P.C. - 196 I.P.C. - Summary of Acts and Sections
Fact of the Case:
The applicant filed an application to quash the charge-sheet and order in a case involving Sections 121, 121-A, 122 and 123 I.P.C. The applicant was previously acquitted in a related trial. The State sanctioned the prosecution after a Division Bench judgment highlighted the absence of sanction under Section 196 Cr.P.C.
Finding of the Court:
The Court found that the absence of sanction under Section 196 I.P.C. vitiated the trial, leading to a void ab initio proceeding. The Court dismissed the application, allowing retrial after obtaining the required sanction.
Issues: The issues involved the absence of sanction under Section 196 I.P.C., the applicability of Article 20(2) of the Constitution of India, and the validity of the retrial.
Ratio Decidendi: The absence of sanction under Section 196 I.P.C. rendered the trial void ab initio, allowing for retrial after obtaining the required sanction. The argument of facing double jeopardy under Article 20(2) was dismissed due to the nullity of the entire proceedings.
Final Decision: The Court dismissed the application, allowing retrial after obtaining the required sanction.
JUDGMENT :
BRIJ RAJ SINGH, J.
1. Heard Sri Pawan Singh Pundir, learned counsel for the applicant and Sri Manish Goyal, learned Additional Advocate General assisted by Sri Rajesh Mishra and Sri Abhijeet Mukharjee, learned A.G.A. for the State.
2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned charge-sheet dated 26.08.2020 as well as order dated 07.07.2021 in Case No. 3131 of 2021 arising out of Case Crime No. 106 of 2000, under Sections 121, 121-A, 122 and 123 I.P.C. Police Station-Kandhala, District-Shamli, pending in the Court of Judicial Magistrate, Shamli at Kairana with a further prayer to stay the proceedings of the aforesaid case.
3. Brief facts of the case are that Station Officer, J.K. Tomar lodged an F.I.R. against two persons in Case No. 106 of 2020, under Sections 121, 121-A, 122 and 123 I.P.C. Police Station Kauthala, District Muzaffarnagar with averment that accused have waged war against government and hatched conspiracy against the country. It is further mentioned that they were living in India without passport. The applicant was not named in the F.I.R. The charge-sheet was filed on 18.05.2000 against applicant and two co-accused and cognizance was taken on 09.06.2000. The applicant was acquitted in Sessions Trial No. 820 of 2000 vide order dated 18.05.2007 passed by the Additional District and Sessions Judge, Court No. 7, District Muzaffarnagar.
4. That the co-accused who were convicted in the said trial filed a Jail Appeal No. 8326 of 2007 and the same was allowed on the ground that sanction has not been accorded by the State Authority, therefore, the appeal was allowed and the Court observed that Competent Authority as contemplated in Section 119 Cr.P.C. had not applied its mind and trial was vitiated.
5. After order dated 05.08.2019 the Superintendent of Police (S.P.) Shamli wrote a letter to District Magistrate on 19.03.2020 for sanction of the prosecution. The State Government sanctioned the prosecution on 31.07.2020 and thereafter, S.H.O. P.S. Kandhala moved an application before the Court for re-trial of the case against all the accused persons.
6. The charge-sheet charge-sheet was again submitted on 26.08.2020 and the Court took cognizance on 07.07.2021 and all the accused including the present applicant have been summoned. The applicant has challenged the said order of cognizance dated 07.07.2021 on the ground that he was acquitted from the case in Sessions Trial No. 820 of 2000 vide order dated 18.05.2007 passed by the Additional District and Sessions Judge, Court No. 7 Muzaffarnagar, therefore, he cannot be retried.
7. It has been further submitted by counsel for the applicant that Judicial Magistrate, Shamli has not applied his mind and he did not consider the ground that applicant was already acquitted by Sessions Court.
8. Learned counsel for the applicant has submitted that according to Article 20(2) of the Constitution of India no person shall be prosecuted and punished for the same offence more than once. Learned counsel for the applicant has relied upon the judgment of Division Bench of Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Bhooraji, 2001 (8) Law (SC) 75.
9. On the other hand, Sri Manish Goyal, learned Additional Advocate General, State of U.P. has submitted that the Division Bench of this Court passed the judgment in Jail Appeal No. 8326 of 2007 (Mohd. Waris @ Raza vs. State) on 05.08.2019 in which observation is made that in the present case the prosecution did not applied mind under Section 196 Cr.P.C. and sanction was not accorded by the State. It has been further stated that a bare perusal of Section 465 Cr.P.C. shows that if there is no complete “omission” of sanction, then Section 465 Cr.P.C. will not come into picture and will not help prosecution. In absence of sanction by the Competent Authority under Section 196 Cr.P.C. it will be a serious flaw and an illegality and would vitiate the entire proceedings. Since, in the present
The absence of sanction under Section 196 I.P.C. rendered the trial void ab initio, allowing for retrial after obtaining the required sanction.
Absence of required sanction under Section 196 of Cr.P.C. prohibits court from taking cognizance of specific IPC offences.
Absence of sanction can be raised and agitated at very inception but invalidity or illegality of sanction is to be raised during trial.
Absence of sanction can be raised and agitated at very inception but invalidity or illegality of sanction is to be raised during trial.
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