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Prior Sanction for Prosecution is a Sine Qua Non for Cognisance: High Court of Jammu & Kashmir and Ladakh at Jammu

Where so necessitated by law, prior sanction of a competent authority as mentioned in the respective statute for prosecution, is a sine qua non for cognizance by the criminal court, as observed by the High Court of Jammu & Kashmir and Ladakh at Jammu, before the HON’BLE JUSTICE MR. SANJEEV KUMAR, in the matter of Jai Singh vs. Baldev Raj and Ors. [CRR No. 6/2013], on 04.12.21.

The facts of the case were that on 27.05.1995, the petitioner filed a complaint in the Court of learned Chief Judicial Magistrate, Kathua, against the respondents, alleging fabrication and destruction of revenue record pertaining to land at village Chak Ram, Kathua. The allegation of mutilating and destruction of revenue record was made against the three revenue officials including Baldev Raj, Subash Chander and Paras Ram. The allegation was that these revenue officials in connivance with private respondents had mutilated the revenue record and a wrongful entry was made in favour of the private respondents, thus, facilitating the revenue officials to attest the mutations under Section 4 and 8 of the Agrarian Reforms Act, 1972. The Chief Judicial Magistrate, Kathua, took cognizance of the complaint, but postponed the issuance of process and directed an enquiry into the matter, to be made by S.P. Kathua as per Section 202 of the Code of Criminal Procedure, 1973. On receipt of enquiry report of S.P. Kathua, the Chief Judicial Magistrate, Kathua, issued process against the petitioner for offences under sections 193, 204, 204A, 467, 120, 34 of the Ranbir Penal Code, 1989.

This was challenged by the respondents and the enquiry conducted under the directions of S.P. Kathua were set aside and the order passed by the Chief Judicial Magistrate taking cognizance against the respondents was quashed and the matter was remanded back for fresh consideration. Pursuant to the directions of this Court, the S.P. Kathua made enquiry and submitted his report to Chief Judicial Magistrate, Kathua, who opined that the enquiry report was lacking in details as the core issue of tampering the record had not been addressed. Accordingly, fresh enquiry report was submitted by S.P. Kathua on 12.07.2004 and vide order dated 13.10.2004, the Chief Judicial Magistrate, Kathua took cognizance and issued process for appearance of the respondents.

At the same time, Chief Judicial Magistrate, Kathua committed the case to the Court of Sessions on the ground that offence under Section 467 of the Ranbir Penal Code, 1989, was exclusively triable by the Court of Sessions. The Court of the learned Sessions Judge, Kathua held that, prima facie, the petitioner had committed offences under Sections 204-A, 467, 109 of the Ranbir Penal Code, 1989. Aggrieved by the aforesaid order, the respondents again filed a revision petition before this Court. Yet, again the respondents succeeded and the impugned order was set aside and the matter was remanded back to the Court of the learned Sessions Judge, Kathua to reconsider the matter in view of observations made by this Court in the order dated 11.07.2011. The matter was considered afresh by the Court of the learned Sessions Judge, Kathua who declined to proceed against the respondents. Aggrieved by the order of the Court of the learned Sessions Judge, Kathua discharging the respondents of mutilating and fabricating the revenue record, the petitioners have preferred the present review petition.

The Honourable High Court of Jammu & Kashmir and Ladakh at Jammu, after considering all the evidence and arguments put forth, as well as perusing the record, agreed with the Court of the learned Sessions Judge, Kathua. The High Court found no legal infirmity in the impugned order; and noted that the Court of the learned Sessions Judge, Kathua, had refused to take cognizance and proceed against the respondents primarily on the ground that the acts and omissions attributed to the accused-revenue officials are those performed by them in discharge of their official duties and, therefore, the Court is not competent to take cognizance, unless there is prior sanction of the Government, under Section 197 of the Code of Criminal Procedure, 1973.

The High Court also took into account that the allegations levelled by the petitioner in the complaint, if believed to be true on their face value, may constitute offence of “criminal misconduct” as defined under Section 5 of the Prevention of Corruption Act, 1988 and therefore, grant of sanction for prosecution by the competent Authority is a sine qua non for the Criminal Court to take cognizance. Additionally, the Court noted that there is no allegation specifically of any conspiracy which may require prior concert or meeting of minds. Thus, the High Court agreed with the Sessions Judge that it is not permissible to bypass the provisions of Prevention of Corruption Act, 1988, which require sanction of a competent authority as a condition precedent, for taking cognizance against the accused-public officers by having resort to the provisions of Ranbir Penal Code, 1989, as an alternative subterfuge in law. Thus, the review petition was dismissed.

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