The Allahabad High Court has held that prior government sanction under Section 196 of CrPC is mandatory to take cognizance of offences like Section 121-123 IPC and it thereby set aside the order of conviction and sentence of life imprisonment imposed on a Pakistani Jais-E-Mohommad Terrorist group member and another Indian citizen, for want of such sanction.
The factual matrix of the case is that the Muzzafar Nagar Police arrested the Appellants-accused, one Waris, a national of Pakistan and alleged member of Jais-E-Mohommad Terrorist group and another Ashfaq, of Muzzafar Nagar, for indulging in Anti India activities.
They were charged of waging or attempting to wage war, conspiracy for war against India, residing in India without Passport concealment of such accused with intent to facilitate design to wage war, under Sections 121, 121-A, 122 and 123 of the Indian Penal Code, 1860 and Sections 13 and 14 of Foreigners Act, 1946.
The two were convicted by the Court of Sessions, Muzzafar Nagar under the relevant sections of IPC and were sentenced to life-imprisonment. They were also sentenced to three years imprisonment under the Foreigners Act. Ashfaq was also convicted under the Arms Act. This conviction order was challenged by them in this Jail appeal before the high court under Section 383 of CrPC.
The appeal was primarily based on the ground that there was complete bar in taking cognizance of the said offences and that the impugned judgment was patently illegal and without jurisdiction, since sanction to launch prosecution was not obtained under Section 196(1) of CrPC either from the Central Government or the State Government. Reliance was placed upon Manoj Rai & Ors. v. State of Madhya Pradesh, 1999 (1) SCC 728.
Section 196 Cr.P.C. contemplates a prior sanction of the government before taking cognizance, if an offence is punishable under Chapter- VI or Chapter- VI of IPC which run from Sections 121 through Section 130 IPC.
The Respondent-state contested the submission stating that no such objection was raised by the Appellants in the proceedings before the Court of Sessions and the impugned judgment could not be vitiated on this ground now.
It was further submitted that sanction under Section 196 CrPC was a procedural requirement and the same could not vitiate the proceedings in view of section 465 CrPC which says that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in sanction for prosecution. Reliance was placed on Dharmesh @ Nanu Nitinbhai Shah v. State of Gujarat, (2002) 6 SCC 370. "For technical reasons, if two appellants engaged in terrorist activities, are acquitted, it will cause great harm and injustice to public interest in particular and Indian Society in general", the state submitted.
The division bench comprised by Justice Sudhir Agarwal and Justice Rajendra Kumar-IV dismissed the state's arguments in view of section 465 CrPC and opined that with reference to "sanction" in the Section, only two words "error or irregularity" had been used and the word "omission" was not mentioned. Thus it was held that in cases where sanction was required, an error or irregularity in the "sanction", would not lead to reversal in appeal or revision but if there is a complete "omission" of sanction, then Section 465 of CrPC will not help the prosecution's case.
The court condemned the Prosecution for its laid back attitude and said "this case is a glaring example of lack of competence, knowledge and sincere efforts on the part of officers responsible for prosecution and that too in a matter which is so serious, as the present one. In a most clandestine and causal manner, prosecution has commenced investigation and proceeded. Even specific requirement of statute has been given a go bye and completely ignored. Whether it was due to lack of knowledge of officers of prosecution or sheer negligence is a matter of inquiry but evidently show their incompetence."
Accordingly, the bench set aside the order of conviction and sentence of life imprisonment passed under the provisions of IPC for lack of sanction. However, conviction under the Foreigners Act and the Arms Act was confirmed.
The Appellants were represented by Advocates J. P. Gupta, Lav Srivastava, Noor Mohammad, Pawan Singh Pundir, Rajiv Gupta, S. M. N. A. Abidi, T. K. Mishra and V. P. Srivastava and the State by Govt. Advocate Udit Chandra.
Click here to download the Judgment