RAHUL KANWAL Vs. STATE

JUDGEMENT

(1.) HEARD. THE PETITIONERS HEREIN SEEK QUASHING OF THE F.I.R. AND ALL FURTHER PROCEEDINGS INITIATED AGAINST THEM IN PURSUANCE OF F.I.R. NO.194/2003 DATED 14TH AUGUST, 2003, REGISTERED AT POLICE STATION, PARLIAMENT STREET, NEW DELHI.

(2.) AFTER HEARING LEARNED COUNSEL FOR THE PARTIES, THIS COURT FINDS THAT A CHARGE-SHEET UNDER SECTION 173 OF THE CODE OF CRIMINAL PROCEDURE HAS BEEN FILED AGAINST PETITIONERS BUT THE ALLEGATIONS AGAINST THEM ARE IN RESPECT OF AN OFFENCE UNDER SECTION 120B I.P.C. ONLY ON THE GROUND THAT THEY ENTERED INTO A CONSPIRACY FOR THE COMMISSION OF OFFENCES UNDER SECTIONS 447 AND 448 I.P.C. THE PETITIONERS ARE NOT CHALLANED OR BEING PROSECUTED FOR SUBSTANTIVE OFFENCES UNDER SECTION 447 OR SECTION 448 I.P.C. SECTION 196(2) OF THE CODE OF CRIMINAL PROCEDURE STIPULATES THAT NO COURT SHALL TAKE COGNIZANCE OF THE OFFENCE OF ANY CRIMINAL CONSPIRACY PUNISHABLE UNDER SECTION 120B OF THE INDIAN PENAL CODE 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. THE PURPOSE BEHIND THIS PROVISION IS THAT NONE SHOULD BE PROSECUTED FOR HAVING COMMITTED THE OFFENCE OF CRIMINAL CONSPIRACY UNDER SECTION 120B OF THE INDIAN PENAL CODE FOR THE OFFENCES ENUMERATED IN SECTION 196 OF THE CR.P.C. INCLUDING SUB-CLAUSE (2) THEREOF.

(3.) IN THE CASE IN HAND, THE SUBSTANTIVE OFFENCES ALLEGED TO HAVE BEEN COMMITTED BY A CO-ACCUSED OF THE PETITIONERS ARE UNDER SECTIONS 447 AND 448 I.P.C. WHICH ARE NOT COVERED BY THE EXCEPTIONS CARVED OUT IN SUB-CLAUSE (2) OF SECTION 196 OF THE CODE OF CRIMINAL PROCEDURE. THE BAR CREATED BY THE SAID PROVISION IS, THEREFORE, CLEARLY ATTRACTED TO THE COGNIZANCE TAKEN BY THE COURT AGAINST THE PETITIONERS VIDE ORDERS DATED 17TH APRIL, 2004, INASMUCH AS ADMITTEDLY NO CONSENT OF THE STATE GOVERNMENT OR THE DISTRICT MAGISTRATE WAS OBTAINED BY THE PROSECUTION FOR THE INITIATION OF THE PROCEEDINGS AGAINST THEM UNDER SECTION 120B OF THE I.P.C. SECTIONS 447 AND 448 I.P.C. DO NOT ENTAIL A PUNISHMENT OF TWO YEARS OR MORE AND, THEREFORE, SECTION 196(2) OF THE CODE OF CRIMINAL PROCEDURE IS CLEARLY ATTRACTED.