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The Indian Penal Code
Section 153A in The Indian Penal Code
Section 153B in The Indian Penal Code
Section 504 in The Indian Penal Code
Section 196 in The Indian Penal Code

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Jharkhand High Court
Swaraj Thackeray vs State Of Jharkhand And Ors. on 15 May, 2008
Author: A Sahay
Bench: A Sahay

JUDGMENT

Amareshwar Sahay, J.

1. The prayer of the petitioner in this application is to quash the entire criminal proceedings and also the order dated 11.4.2007 taking cognizance of the offences under Sections 153-A, 153-B and 504 of the Indian Penal Code in Complaint Case No. C/1-382/2007 pending before the Court of Sri B.C. Awasthi, Judicial Magistrate, 1st Class, Jamshedpur.

2. The facts of the matter are that the O.P. No. 2 Sudhir Kumar, a lawyer of Civil Court, Jamshedpur and spokesman of a political party namely R.J.D., filed a compliant case before the Chief Judicial Magistrate, Jamshedpur against the petitioner Swaraj Thackeray @ Raj Thackeray making the following allegations: In the night of 9th March, 2007 at about 10.30 p.m. when the complainant was in his office, he was informed that the petitioner herein has made certain derelictory, defamatory, unconstitutional and illegal statements at a public meeting in Mumbai. which was being relayed by the T.V. channels. The complainant switched-on his Television set and then he could find from one news channel that the accused/petitioner had made certain comments upon the residents of North India specifically against Bihari Community who were residing in Mumbai in order to earn their bread and butter. On the next date, i.e., 10th March, 2007 the complainant found, that in almost all the newspapers, the statements of the petitioner was published, wherein he had made statements insulting the entire Bihari Community deliberately and intentionally which hurt the emotions, feelings and sentiments of the complainant. The news items carried the heading as "Maharashtra mein marathiyon ka sam-man karo warna thapad ke liye taiyar raho". The said statements was not only unconstitutional, derelectory, defamatory and unlawful but was made with an intent to insult the entire community made with malqfide, intentions and ulterior motive to disseminate disharmony amongst the different groups and with intention to insult the feelings of national integrity of the complainant as well as the entire Bihari Community.

3. The complaint case was registered and, thereafter, the complainant was examined on solemn affirmation and on his behalf statements of one witness was also recorded during enquiry under Section 202 Cr PC. The learned Magistrate on consideration of the allegations made in the complaint petition, the statements of the complainant on solemn affirmation and the statements of the witness made during enquiry under Section 202 Cr PC as well as the other materials on records including the newspaper cutting etc., held that prima-facie, the materials supplied by the complainant made out a case under Sections 153-A, 153-B and 504, IPC against the accused Swaraj Thackeray @ Raj Thackeray, and, thereby, he took cognizance of the offence alleged and ordered to issue process against him.

4. The petitioner is challenging the said order taking cognizance as well as the entire criminal proceedings initiated against him.

Mr. Y.V. Girl, learned senior counsel appearing for the petitioner mainly submitted as follows:

(i) The criminal proceeding against the petitioner is an abuse of the process of law, since a bare reading of the allegations made in the complaint petition no offence much less, offence under Sections 153-A, 153-B and 504. IPC is made out and the Magistrate has taken the cognizance of the offences without application of mind.

(ii) The complaint is politically motivated and made only to harass and humiliate the petitioner.

(iii) The offence alleged, if any, even according to the complainant, was committed in Mumbai and was not committed in the State of Jharkhand therefore, the Court at Jamshedpur has no territorial jurisdiction to entertain the complaint and to take cognizance.

(iv) Since no prior sanction as envisaged under Section 196, Cr PC either of the Central Government or of the State Government has been taken prior to taking cognizance, which is mandatorily required for taking cognizance of the offence under Section 153-A, 153-B IPC and, therefore, the whole proceeding is illegal.

In support of his submissions, Mr. Giri relied on the following decisions:

(1) Balwant Singh v. State of Punjab .

(2) State of Bihar v. Ramanand Singh. 1966 (13) BLJR 600.

(3) Kishore Mohan v. State of Bihar 1976 PLJR 270.

(4) Manzar Sayeed Khan v. State of Maharashtra and Ors. .

(5) Shailbhadra Shah and Ors. v. Swami Krishna Bharati and Anr. 1981 CrLJ 113 (Guj).

(6) Md. Khalid Hussain v. State. 2000 Cr LJ 2949 (AP).

5. So far as the exercising the jurisdiction and powers under Section 482, Cr PC is concerned, the law in this regard has already been settled up to the Apex Court. Exercise of power under Section 482, Cr PC is exception and not the rule. It is neither possible nor desirable to lay down any inflexible rule which can govern the exercise of inherent jurisdiction. While exercising this power under Section 482, the High Court does not function as a Court of appeal or revision. Inherent jurisdiction under Section 482, Cr PC though is wide enough but it has to be exercised sparingly, carefully and with caution and in rarest of the rare case and only when such exercise is justified by the tests specifically laid down under Section 482, Cr PC. It is to be exercised to do real substantial justice for the administration for which alone the Courts exist. Exercise of this power by the Court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of the Court or quashing of this proceeding would otherwise serve the ends of justice but the inherent powers should not be exercised to stifle the legitimate prosecution. The High Court being the highest Court of the State should normally refrain from giving prima-facie, decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issue involved whether factual or legal are of magnitude and cannot be seen in their true perspective without sufficient materials. Reference may be made to the case of Minu Kumar and Another v. State of Bihar and Ors. and in the case of Central Bureau of Investigation v. Ravi Shankar Srivastava IAS and Ors. .

6. It is also well settled that at the stage of taking cognizance in a case arising out of complaint case, the Magistrate has to apply his mind, only to see as to whether prima-facie case is made out of commission of any offence from the allegations made in the complaint petition, the statements of the complainant on solemn affirmation and from the materials collected during enquiry under Section 202. Cr PC and if on the consideration of such materials, the Magistrate finds that primafacie case is made out then the Magistrate takes cognizance then in that case generally the High Court would not substitute its own finding, by meticulously examining the materials on record and by scrutinizing the evidence to find out the truthfulness of veracity or otherwise of the allegations made in the complaint petition.

7. From the impugned order, I find that the learned Magistrate after considering the allegations made in the complaint petition and the materials adduced during enquiry under Section 202, Cr PC found prima-facie case made out for commission of the offence under Sections 153-A, 153-B and 504 of the Indian Penal Code against the petitioner Swaraj Thackeray @ Raj Thackeray and, thereafter, directed the complainant to file requisite for issuance of process. At the stage of taking cognizance a detailed order discussing the evidence in detail is not required to be passed by the Magistrate. The order taking cognizance but should show that the Magistrate has applied his mind before taking cognizance and from the impugned order it appears that the Magistrate after applying his mind has taken cognizance and, therefore, it cannot be said that the impugned order suffers from non-application of mind.

8. Now, the question as to whether from the allegations made in the complaint petition as well as the materials collected during enquiry under Section 202, Cr PC, any prima-facie case for the offences under Sections 153-A, 153-B and 504. IPC is made out or not, in my view, from bare perusal of the allegations made in para-5 of the complaint petition as well as the statements of the complainant on solemn affirmation there is no doubt about it that prima-facie case for commission of the offence as alleged do exists and, therefore, the submissions of the petitioner that no prima-facie case is made out in the facts and circumstances of the case cannot be accepted and, hence, the same is rejected.

9. Now, coming to the point as to whether the learned Magistrate could have taken cognizance for the offences under Sections 153-A and 153-B, IPC against the accused in absence of any sanction as envisaged under Section 196, Cr PC or not? Let us examine the provisions of Section 196, Cr PC, which reads thus:

196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.--(1) No Court shall take cognizance of

(a) any offence punishable under Chapter VI or under Section 153-A, [Section 295-A or Sub-section (1) of Section 505] of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in Section 108-A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government.

(1-A) No Court shall take cognizance of--

(a) any offence punishable under Section 153-B or Sub-section (2) or Sub-section (3) of Section 505 of the Indian Penal Code (45 of 1860). or

(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.

(2) No Court shall take cognizance of the offence or any criminal conspiracy punishable under Section 120-B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit (an offence) punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings.

(3) The Central Government or the State Government may, before according sanction under Sub-section (1) or Sub-section (1-A) and the District Magistrate may, before according sanction under Sub-section (1-A) and the State Government or the District Magistrate may, before giving consent under Sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in Sub-section (3) of Section 155.

10. The question raised that the impugned order taking cognizance by the Magistrate is illegal on the ground that the learned Magistrate of Jamshedpur has no territorial jurisdiction to take cognizance of the offences alleged since it was committed outside his territorial jurisdiction, the judgment of the Apex Court in the case of Trisuns Chemical Industry v. Rajesh Agarwal and Ors. , is a complete answer to the said question. The Apex Court has clearly held as follows: It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chap. XIII of the Code relates to jurisdiction of the criminal Courts "in enquiries and trials". That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that "every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed." But Section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a Court" within "whose local jurisdiction such thing has been done or such consequence has ensued". It cannot be overlooked that the said provisions do not trammel the powers of any Court to take cognizance of the offence. Section 193 imposes a restriction on the Court of Session to take cognizance of any offence as a Court of original jurisdiction. But "any" Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not, The only restriction contained is Section 190 is that the power to take cognizance is "subject to the provisions of this Chapter." There are 9 Sections in Chap. XIV most of which contain one or other restriction imposed on the power of a First Class Magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier. The High Court, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the "Judicial Magistrate of First Class, Gandhidham has no power to take cognizance of the offences alleged" merely because such offences could have been committed outsides the territorial limits of the State of Gujarat. Even otherwise, without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by the High Court at a grossly premature stage in a petition under Section 482 for quashing complaint.

In view of the law laid down by the Apex Court, quoted above, the submissions made on behalf of the petitioner questioning the legality of the order taking cognizance on the ground of territorial jurisdiction is rejected.

11. Now, coming to the decisions cited on behalf of the petitioner, it appears that the decisions of Balwant Singh's case reported in (1995) 3 SCC 21 and of Kishori Mohan's case reported in 1976 PLJR 270, are the cases in which it was being considered as to whether the ingredients of the offences under Sections 153-A or 504, IPC were established by the prosecution or not. Those cases arose against the conviction of the accused persons after a full dressed trial, whereas in the present case only the cognizance has been taken and the evidence is yet to he adduced by the parties at subsequent stage. At this stage only primafacie case has to be seen and not as to whether the ingredients of the offence alleged has been established or not. In this view of the matter the aforesaid two decisions are of no help to the petitioner.

12. The decision in the case of State of Bihar v. R. Singh reported in 1966 BLJR 600 is also not applicable in the facts and circumstances of the present case since in that case His Lordship was dealing with a Government Appeal against the acquittal.

13. So far as the decisions of Manzar Sayeed Khan's case reported in (2007) 5 SCC 1 and of Md. Khalid Hussains case reported in 2000 Cr LJ 2949 (AP) are concerned, these are not required to be discussed in view of the order being passed by me in this case.

14. Regarding the points raised by the petitioner that prior sanction under Section 196, CrPC was must before taking cognizance of the offences under Sections 153-A and 153-B, IPC, I find that from a bare perusal of Section 196(1)(a) and (1-A)(a), quoted herein above, it is absolutely clear that there is complete bar for taking cognizance of the offences punishable under Sections 153-A, 153-B, Section 295-A or Sub-sections (1), (2) and (3) of Section 505, IPC.

In the present case, the cognizance of the offences under Sections 153-A, 153-B and 504, IPC has been taken by the learned Magistrate. There is no dispute of the fact that prior to taking cognizance of the offences alleged under Sections 153-A and 153-B, IPC, no sanction either of the Central Government or of the State Government was taken. The decision cited by the counsel for the petitioner in the case of Shailbhadra Shah and Ors. v. Swami Krishna Bharati and Anr. of Gujarat High Court reported in 1981 Cr LJ 113, supports his contention that prior sanction either of the State Government or of the Central Government is necessary before taking cognizance of the offences under Sections 153-A and 153-B of the Indian Penal Code. Therefore, in such a situation, it is held that the learned Magistrate had no jurisdiction to take cognizance of the offences under Sections 153-A and 153-B of the Indian Penal Code against the petitioner in absence of any sanction as envisaged under Section 196(1)(a)(1-A)(a), CrPC. Consequently, that part of the impugned order taking cognizance for the aforesaid two offences, i.e., under Sections 153-A and 153-B, IPC only by the learned Magistrate cannot be sustained and, as such, is hereby quashed.

15. So far as for taking cognizance of the offence under Section 504, IPC, taken by the learned Magistrate, there is no such legal bar for taking cognizance of the aforesaid Section 504, IPC, and I find that the learned Magistrate after full application of mind and on consideration of the materials on record has taken cognizance of the offences under Section 504, IPC also and, therefore, the same does not require any interference by this Court.

However, it is observed that the order/taking cognizance for the offences under Sections 153-A and 153-B, IPC has been quashed only on technical ground there being legal bar and, therefore, the Complaint Case shall proceed against the petitioner for the offence under Section 504, IPC. If at any subsequent stage the sanction as required under Section 196(1)(A)(1-A)(a), CrPC is granted by the competent authority, the learned Magistrate would be free to take cognizance of the aforesaid offences if he finds on application of his mind that the prima-facie case for the said offences are made out and there are sufficient grounds to proceed against the accused.

This application is thus disposed of. Application disposed of.