KISHWAR JAHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS is an application challenging the order dated 31st October, 2008 whereby sanction for prosecution has been granted in respect of the respondent no.4, 5 and 6.

(2.) THE case of the petitioner is that upon completion of investigation by the Central Bureau of Investigation (CBI) a final report was submitted under Section 173 of the Code of Criminal Procedure. On the basis thereof proceedings were initiated in the Court of the Metropolitan Magistrate and on 22nd Setember, 2008, the Magistrate passed an order that no sanction was required. Inspite thereof by order dated 31st October, 2008 sanction has been granted under Section 120B of the Code of Criminal Procedure read with Section 506 of the Indian Penal Code (IPC). In order to protect the respondent nos.4, 5 and 6 no sanction has been granted under Section 306 of the IPC. In fact no sanction was needed as the acts of the private respondents is not in the course of their respective duty. THEre is no reason for non-inclusion of Section 306 of the IPC in the order passed. By not including Section 306 the authorities have sought to nullity the findings in (2008) 3 CHN 857. THE said decision has been upheld by the Appellate Court and is pending before the Supreme Court of India. It is only at hearing before the Supreme Court of India that the order dated 31st October, 2008 was shown and on basis whereof bail was granted to the private respondent. Section 506 and Section 120B are bailable offences but Section 306 is a non-bailable offence.

(3.) COUNSEL for Central Bureau of Investigation (CBI) submits that all the conditions necessary for issuance of sanction under Section 197 has been satisfied. In fact no sanction was needed as held by the Metropolitan Magistrate on 22nd September, 2008. The only reason for obtaining sanction is by way of abundant caution as it happens in many cases when no sanction is taken the officers approach the Court, on the ground that sanction ought to have been taken. This delays the proceedings, therefore, sanction was taken. In fact the respondent no.3 is not a Government employee and, therefore, no sanction was necessary.