1982 Supreme(MP) 351

C. P. Sen, J.
Gopal v. Rajpal
Cr. Revn.No. 88 of 1982 (J); decided on 7-7-1982.

Headnote:Criminal P. C, 1973 -- S. 196 (2) and Penal Code, 1860 -- Ss. 448 and 120 B -- charge under Ss. 448 r/w 120 B -- consent envisaged under S. 196 (2) Cr. P. C. not obtained --charge liable to the quashed -- magistrate may charge the accused under S. 448 I.P.C. only.

        The contentions are that (I) no charge under section 448 read with Sec. 120-B IPC can be framed as there is no sanction obtained from the State Government as required under section 196 (2) of the Code of Cr. Procedure; and (2) on the facts and circumstances as stated in the police report, the complaint filed in Court and the evidence given by the complainant, no offence under the Penal Code has been made out.

        Held : After hearing the parties, I am of the opinion that the first contention has to be accepted and partly also the second contention so far as applicant No.6 is concerned. There is a clear bar under section 196 (2) which says that no Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120-B of the Indian Penal Code other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years, unless the State Government of the District Magistrate have consented in writing to initiate the proceedings. The maximum punishment under section 448 IPC is imprisonment for one year. Therefore, no cognizance of the offence under section 448 read with section 120-B IPC could be taken without requisite sanction. However, the Magistrate is free to frame a charge under section 448 only. So far as the applicant No.6 is concerned there is no allegation made against her in the police report (Ex. P-1) which was lodged by the complainant on 30-11-1976.There is also no allegation that she was a party to trespass and illegal occupation of the hotel in question or deprival of the complainant of his valuables. In the complaint which has been filed the only allegation is that she has executed a rent-note in favour of respondents 2 to 5 knowing fully well that the complainant is the tenant. It appears from the documents produced that one Lalwani was the original tenant of applicant No. 6 and he inducted the complainant as a subtenant and then the complainant in turn inducted Gopal as a subtenant. That is the allegation in the plaint in Civil suit No. 14-B of 1977 filed by Rajiv Kumar son of applicant No. 6 who seems to be the owner of the premises.

        Accordingly the revision is partly allowed. The proceedings against applicant No. 6 are dropped and she is discharged from the case. So far as other applicants are concerned, charge under section 448 read with section 120-B IPC is quashed. The Magistrate is free to frame charge under section 448 IPC against them Revision partly allowed.