ABDUL ALI Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS application under sub -section (1) of S. 96 of the Code of Criminal Procedure, 1973, "Code", for short, is placed before the Special Bench of three Judges in conformity with sub -section (2) of that Section which prescribes that such an application shall be heard by a Bench so constituted. Apart from the impugned Annexure -A, G.O. (Ms.) No. 170/2010/Home dated 28.07.2010, we have no other materials on record along with the papers. We record that the book in relation to which the impugned order of the Government is shown to have been issued under S. 95 of the Code, is placed before us in sealed covers. Having looked into the substance of the contentions and the quality of the impugned order, we heard the learned Senior Advocate for the petitioners and the learned advocate acting on the directions of the learned Public Prosecutor, hereinafter called as 'public prosecutor'.

(2.) THE learned Senior counsel for the petitioners argued that the impugned order, in no manner, satisfies the procedures and prescriptions in S. 95 of the Code and it does not contain the expression of any Government decision. He says that there is nothing on the face of the impugned order to show that "the Government was either satisfied" or "it had appeared to the Government", that the impugned action has to be taken. He, therefore, argued that the issuance of the impugned notification is without jurisdiction in terms of sub -section (1) of S. 95 of the Code. He further criticised the absence of any opinion having been expressed in the impugned order regarding the Government's decision in the matter and pointed out that no grounds have been stated in support of any such opinion. He also argued that whatever is stated in the second paragraph of the impugned notification, is merely an attempt to superficially make reference to and state S. 153A of Indian Penal Code, 1890, for short, "IPC", and even that has not been done in satisfaction of any of the limbs of that Section. He made reference to the decisions of the Supreme Court in State of Maharashtra v. Sangharaj Damodar Rupawate ( : 2010 (3) KLT SN 39 (C. No. 46) SC : (2010) 7 SCC 398) and Baragur Ramachandrappa v. State of Karnataka ( : (2007) 5 SCC 11) and the decision of the Full Bench of the Bombay High Court in Sangharaj D. Rupawate v. Nitin Gadre ( : 2007 (4) KLT SN 24 (C. No. 24) Bom. : 2007 Cri.L.J. 3860).

(3.) AT the outset, we may notice that this criminal miscellaneous case is filed invoking S. 96 as also S. 482 of the Code. Sub -section (3) of S. 95 provides that no order passed or action taken under S. 95 shall be called in question in any court otherwise than in accordance with the provisions of S. 96. This, obviously, means that no jurisdiction otherwise than under S. 96 is available through S. 482. For support, see the decision in Aundal Ammal v. Sadasivan Pillai ( : 1987 (1) KLT 53 (SC) : AIR 1987 SC 203). We, therefore, raised a query in that regard and the learned Senior counsel for the petitioners has fairly stated that in the light of sub -section (3) of S. 95, the case need be treated only under S. 96 and not under S. 482 of the Code. We do not see any other jurisdiction being available. We, therefore, hold that an order passed or action taken under S. 95 of the Code cannot be questioned before any court otherwise than by an application under S. 96, subject, of course, to the distinctions made in Aundal Ammal (supra) as to the constitutional powers of superior courts.