MD YUSUF RATHER Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application for bail under Section 439 of the Code of Criminal Procedure, 1973. In this case charge-sheet however was submitted on 22-6-1998 against the present petitioner and another under Sections 120B / 121/121A/ 124A/ 307, IPC and Sections 10111 /13 of the Unlawful Activities (Prevention) Act, 1967 and the learned SDJM Ranaghat took cognizance thereon and committed the case to the Court of Sessions on 25-8-1998 for trial. The case is now pending for trial before the learned Additional Sessions Judge, 2nd Court, Nadia.

(2.) It is the case of the State that the petitioner who is a resident of Kashmir is involved in the unlawful activities of Kashmir militants and there are materials on record primafacie showing that he is actively associated with such unlawful activities. The learned Advocate for the petitioner, however, submits that in view of Section 196, Cr.P.C. no Court can take cognizance of the offences punishable under Sections 121/121A/ 124A, IPC except with the previous sanction of the Central Government or of the State Government and in this particular case no such sanction has been obtained and yet the learned SDJM, on the basis of the charge-sheet lied before him, took cognizance of the said offences which is megal and untenable in law. It is further submitted that in view of Section 17 of the Unlawful Activities (Prevention) Act, 1967 also no Court can take cognizance of any offence punishable under the said Act except with previous sanction of the Central Government or any officer authorised by the Central Government in this behalf. It is submitted by him that since in this case no such sanction under Section 17 of the said Act has been obtained the cognizance taken by the learned SDJM on the charge-sheet in respect of the offences punishable under Sections 10, 11 and 13 of the said Act is bad in law and that being so the entire proceeding which is pending against the petitioner is illegal and void and therefore the petitioner should be released on bail. In support of his contention that any such proceeding is bad in law if prior sanction of the proper authority is not obtained, the learned Advocate for the petitioner relied upon the decisions in Abdul Mian v. The King Yusofalli Mulla v. The King Basdeo Agarwalla v. Emperor and Gokulchand v. The King.' The proposition enunciated in these decisions is indeed well settled and there cannot be any doubt that where any prior sanction is necessary under the law the Court cannot take cognizance of the offence in the absence of such sanction, else the same will be illegal.

(3.) In the present case if prior sanction in respect of the offences punishable under Sections 121/121A/124A, IPC and Sections 10/11/13 of the Unlawful Activities (Prevention) Act, 1967 has not been obtained then the cognizance taken by the Court in respect of the offences under the said sections will be bad in law. It is, however, to be pointed out here that the present application of the petitioner is an application for bail only and it is not an application for quashing the cognizance or the pending proceeding/trial and there is, therefore, no scope of declaring or holding on the present application that the cognizance taken or the pending proceeding/trial is bad in law, not to speak of quashing the same. However, even if it is accepted that the cognizance in respect of the offences under the said statutory provisions is bad in law for want of prior sanction of the appropriate authority yet we will find that in this case the charge-sheet has been submitted under Section 307, IPC also for which no prior sanction is necessary. Therefore, even if cognizance in respect of all those sections stands vitiated for want of prior sanction, yet cognizance in respect of Section 307, IPC as mentioned in the charge-sheet will not be affected for that reason alone. Since the matter is now before the Court of Sessions for consideration of charge against the petitioner we leave it to the learned Court below to consider whether framing of a charge under Section 307, IPC is warranted by the materials on record and we refrain from embarking on any consideration of the aspect of the matter.