SHIV KUMAR AGARWALA Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) This criminal petition under Section 482 Code of Criminal Procedure, 1973 filed by the Petitioner challenges the validity of the orders dated 8.4.2010 and 2.12.2009 passed by the learned Chief Judicial Magistrate, Shillong in GR. Case No. 38(SV 2006 taking cognizance of the offences charged against him without valid prosecution sanction.

(2.) The facts of the case prompting this criminal proceeding may be briefly noticed at the outset. The Petitioner claims to be the Secretary of the Rajasthan Vishram Bhawan for a considerable period of time and the member of the Executive Committee of the Vishram Bhavan on the basis of the election held on the direction of this Court. It is alleged by him that the Respondents No. 2 to 11, with the evil design of removing him from the helm of the affairs of the Vishram Bhavan, lodged a written complaint on 14.11.2005 with the police by falsely alleging that he had circulated a pamphlet in and around Shillong town with an intention to create enmity, hatred and ill will among different communities besides defaming them. No case was initially registered by the police though G. D. entry was made on 14.11.2005. On 16.11.2005, according to the Petitioner, the police, merely on the basis of a sheet of paper without any contents but with the signatures of Respondents 4 to 11 received by them vide GDE No. 533 dated 16.11.2005, registered Shillong Sadar P.S. Case No. 176(11)2005 under Sections 505(2)/500 IPC. This was followed by the arrest of the Petitioner from his house at midnight: he was, however, released on bail by the Court. It is also the case of the Petitioner that the police, after investigation of the case, charge--sheeted him under Sections 505(2)/500 IPC without obtaining prosecution sanction to stand the trial before the learned Chief Judicial Magistrate, Shillong. The learned Chief Judicial Magistrate transferred the case to the file of the learned Judicial Magistrate, Shillong. The learned Judicial Magistrate without application of mind issued summons to the Petitioner vide the order dated 17.2.2006.

(3.) It is the further case of the Petitioner that the learned Judicial Magistrate completely overlooked the fact that he could not take cognizance of the offence under Section 505(2) IPC without prosecution sanction issued by the competent authority under Section 196(1A) Code of Criminal Procedure and illegally proceeded to take cognizance of the said offence together with the offence under Section 500 IPC. He accordingly pleaded not guilty to the charge and claimed to be tried whereupon the learned Magistrate started recording prosecution evidence. However, the prosecution belatedly filed an application on 16.10.2008 before the learned Magistrate praying for directing the Investigating Officer of the case to obtain the prosecution sanction from the competent authority. The objection raised by the Petitioner against the application was, however, rejected by the trial Court, which by the order dated 21.11.2008 passed in G.R. Case No. 38(S) 2006 directed the prosecution to obtain the sanction within two months. The trial Court also directed therein that prosecution evidence would continue to be recorded in the interregnum. Aggrieved by this, the Petitioner approached this Court in Criminal Petition No. 34(SH) of 2008 for appropriate order. This Court by the order dated 26.08.2009 disposed of the case and remanded the same to the trial Court. On 04.09.2009, the learned Chief Judicial Magistrate directed the prosecution to obtain the sanction within a month and fixed 06.10.2008 for submission of the prosecution sanction. The prosecution sanction was apparently submitted by the prosecution before the learned Chief Judicial Magistrate on 02.12.2009. In the meantime, the Petitioner on 13.11.2009 filed an application before the trial Court for discharging him from the case on the ground, among others, that taking cognizance of the offences charged against him was barred by limitation under Section 468 Code of Criminal Procedure. The trial Court, however, by the order dated 08.05.2010 rejected the application and proceeded with the case from where it was left earlier and fixed 28.04.2010 for evidence. This is how this criminal petition has been filed.