Time For Obtaining Sanction Excluded From Limitation U/S 468 CrPC: Karnataka High Court Refuses To Quash Criminal Case Over 'Forced Conversion'

A single judge bench of Justice K Natarajan dismissed the petition filed by K J Kunjumon and others who were charged under sections 504, 323, 295A read with Section 34 of Indian Penal Code.

“There is a case and counter case registered against both the parties, such being the case, the petitioners are required to face the trial and the trial judge has to give the findings in both the cases and punish the aggressor of the crime. Therefore, at this stage, the criminal proceedings cannot be quashed,” it said.

As per the complainant, four persons (accused Nos.1 to 4) forced him to change his religion. They allegedly made him hold the Holy Bible, took photographs, pestered him to read it, and even offered money. It was further alleged that the petitioners-accused told the complainant that he will not be benefited by performing pooja to Hindu deities. On questioning their actions, the complainant said he was abused and assaulted. Following which a police complaint was lodged and charge-sheet came to be filed.

The petitioners challenged the sanction to prosecute, stating that essential ingredients to constitute the above offences were made out. They submitted that they were, at most, propagating Christianity in enforcement of their fundamental rights Article 25 of the Constitution which guarantees every person the right to freedom of conscience and the right to freely profess, practice and propagate religion.

They also pointed towards delay in filing the charge-sheet, as the complaint was filed in the year 2011 and charge-sheet was filed in the year 2017.

The prosecution opposed the plea saying there is some delay in granting the sanction by the State and that delay cannot be a ground for refusing to take cognizance. As per Section 473 of CrPC, it is non-obstante clause when the delay is explained and it may not affect the bar under Section 468 of CrPC.

At the outset, referring to Section 470(3) CrPC, the bench said that if any time is consumed for obtaining sanction that shall be excluded from the limitation period. "Section 470 of Cr.P.C. is an exception to the Section 468 of Cr.P.C.”

It relied on the judgment of the Supreme Court Sarah Mathew vs. Institute of Cardio Vascular Diseases and other cases reported in (2014) 2 SCC 62, wherein it was held that for the purpose of computing the period of limitation under Section 468 of CrPC, the relevant date is the date of filing of the complaint or the date of the institution of prosecution and not the date on which the Magistrate takes the cognizance.

“Therefore, the contention of the learned counsel for the petitioners cannot be acceptable that cognizance taken by the Magistrate is barred by law,” it said.

Rejecting the contention of petitioners that there is non application of mind by the state in granting sanction to prosecute, the bench held “If at all, any flaw in the said sanction, the petitioner can take as defence in the cross-examination while examination of the Officer who accorded the sanction.”

The bench also referred to the note sheet of the State which revealed that the file was moved from Under Secretary to the Additional Chief Secretary and finally, the matter also placed before the Cabinet and after obtaining the cabinet approval and after the discussion, the permission was accorded. The matter was placed before the Home Minister.

Following which the bench expressed “It cannot be said there is any non application of mind by the state while according sanction...Sanction has been accorded on 22.03.2017. The charge-sheet came to be filed within a week i.e. on 30.03.2017. Therefore, it cannot be considered that there is delay in filing the charge-sheet which affects the fundamental right of the petitioners.”

Thus, it dismissed the petition.

Case Title: K J Kunjumon & others And State of Karnataka & Others

Case No: WRIT PETITION NO.18737 OF 2021

Citation: 2023 LiveLaw (kar) 69

Date of Order: 03-02-2023

Appearance: Advocate Mohan Raj Doraiswamy A for petitioners.

SPP II, V.S. Hegde a/w HCGP B.J. Rohit for respondents.