M. Gnanam @ Gnanasekaran vs T.R. Masilamani

Janarthanam, J.—The Petitioner herein was accused 2 in C.C. No. 3350 of 1986 on the file of the Sub Divisional Judicial Magistrate''s Court, Poonamallee, on a complaint lodged by the Respondent herein for alleged offences under Ss .500, 501 and 502 of the Indian Penal Code and u/s 12 of the Press and Registration of Books Act, 1867 (for short ''the Act'') as against nine persons arraying them as accused 1 to 9.

The Respondent-complaint is the elected Chairman of the Panchayat Union Poonamallee Accused 2 was likewise an elected Vice-Chairman of the said Panchayat Union. The Respondent-complainant and accused 2, it is said, belonged to rival political parties. Accused 1 and 3 to 6, it is said, belonged to the same political party to which accused 2 belongs. Accused 7 to 9 are stated to be the sympathisers of the party to which accused 2 belongs. This apart, accused 7 and 8, it is said, are the editors while accused 9 is the publisher of the magazine going by the name ''NEETHIYIN KURAL''.

Accused 2, it is said, conspired with the rest of the accused, namely, accused 1 and 3 to 9 to bring down the reputation of the Respondent-complainant and intending to harm or knowing or having reason to believe that it will harm his reputation, made false imputation by publishing an article in the said magazine.

The article, in pith and substance, it is said, had been written and published in such a way that the Respondent-complainant was reveling in corrupt practices, in the sense of receiving illegal gratification for anything he does in the discharge of his duties as the Chairman of the said Panchayat Union. The Respondent- complainant, feeling that the publication of such an article, brought down his reputation in the estimation of the public, launched the aforesaid prosecution.

On receipt of process, accused 2 entered appearance through a Counsel of his choice and after receipt of a copy of the complaint, he resorted to the present action of invoking the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, 1973 (for short ''the Code''), to quash the criminal proceedings initiated as against him.

Mr. M. Karpaga Vinayagam, learned Counsel appearing for the Petitioner-accused 2 would be rest content in raising a technical objection based on the salient provisions adumbrated under Sub-section (2) of Section 196 of the Code, in the sense of taking cognizance of the complaint, without the consent of the State Government or the District Magistrate, is bad in law.

Mr. S.N.A. Hussainy representing Mr. J.I. Rajkumar Roberts appearing for the Respondent-complainant, would however, repel such a submission.

Sub-section (2) of Section 196 of the Code prescribes that

No Court shall take cognizance of the offence of any criminal conspiracy punishable u/s 120-B 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."(underlining is mine)

Expressed in simple words, the said Sub-section would mean that excepting criminal conspiracy to commit an offence punishable with death, imprisonment for life or Rigorous Imprisonment for a term of two years or upwards, the rest of the conspiracy to commit an offence requires the sanction of the State Government or the District Magistrate before ever such an offence is taken cognizance of by the Court.

The offences with which the Petitioner-accused 2 as well as other accused had been prosecuted fall under Ss. 500, 501 and 502 of the Indian Penal Code and S. 12 of the Act. Each of the offences under Ss. 500 to 502 of the Indian Penal Code is liable to be punished with Simple Imprisonment for two years or fine or with both.

So far as Section 12 of the Act is concerned, it is punishable by fine not exceeding Rs. 2,000/- or by Simple Imprisonment for a term not exceeding for six months or by both.

It is thus clear that conspiracy to commit all those offences would fall under the category of "criminal conspiracy to commit an offence 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." Such being the case, it goes without saying that for the prosecution of the Petitioner-accused 2 as well as the rest of accused 1 and 3 to 9 for the aforesaid offences, the consent of the State Government or the District Magistrate is necessary before ever such a complaint is to be taken cognizance of by the Magistrate. Apparently, there is no incorporation of any averment in the complaint as to the consent of the State Government or the District Magistrate having been obtained for launching of the prosecution.

The present Section 196, consisting of Sub-sections (1) to (3) corresponds to old Ss.196,196-A and 196-B (of the Old Code) respectively with certain changes and modifications. The present Section 196 is captioned'' "Prosecution for offences against the State and for criminal conspiracy to commit such offence." Old Section 196 was captioned.

Prosecution for offence against the State

S. 196-A as

Prosecution for certain classes of criminal conspiracy

and Section 196-B as,

Preliminary inquiry in certain cases.

These three independent sections, namely, old Ss. 196, 196-A and 196-B of the old Code with the captions, as stated above, had been merged into the present Section 196 with the caption as above-indicated.

Because of the present caption of the present Section 196 namely,

Prosecution for offences against the State and for criminal conspiracy to commit such offence

a doubt was entertained as to whether Sub-section (2) of the said section can be construed to have any independent existence. The cause for entertaining of such a doubt arose as a result of the captioning of this section. The caption gives rise to a thinking that prosecution for offence against the State and for criminal conspiracy to commit such offence alone, the section is taking care of and not otherwise. If Sub-section (2) thereof is construed in the backdrop of the section, the said Sub-section cannot at all be held applicable to conspiracy to commit offences under Ss. 500 to 502 of the Indian Penal Code as well as Section 12 of the Act, as in the instant case, inasmuch as the prosecution cannot be stated to be construed to have been launched as against the State. Despite such caption, Sub-section (2) had been construed to be of independent existence, without there being any fetters or restrictions by various High Courts and the apex Court of this country.

A Division Bench of the Bombay High Court in Abdul Kadar Saleh Mohomed and Others Vs. State, said in para 11 (at page 136) thus:

(11) Mr. Pardivala then argued that the sanction of the State Government is necessary u/s 196-A(2) of the Criminal Procedure Code. Inasmuch as conspiracy that is alleged includes some non- cognizable offences. The Legislature added Section 196-A(2) requiring the sanction of the Government in such cases with a view that there should not be frivolous prosecution on the ground of criminal conspiracy to commit non-cognizable offences which were petty in nature. The question is whether the present case falls within the ambit of Sub-section (2) of Section 196. As far as relevant, Section 196-A(2) reads:

No court shall take cognizance of the offence of criminal conspiracy punishable u/s 120-B of the Indian Penal Code.

(2) In a case where the object of the conspiracy is to commit any non-cognizable offence... unless the State Government or a Chief Presidency Magistrate...empowered in this behalf by the State Government, has by order in writing consented to the initiation of the proceedings.

The primary question is whether it can be said that the object of the conspiracy is to commit any non-cognizable offence. No doubt the words are plain. But then as the words themselves suggest, the object of the conspiracy must be to commit any non-cognizable offence. In the present case, the object was to commit cognizable offence, and the minor steps were merely steps in the committal of the main and cognizable offence of cheating the public, the Government and the banks, which clearly is outside the purview of the exception contained in Sub-section. It seems to us that such conspiracies as have their object only the commission of non-cognizable offences, which are within the section. It may also be that there may be a conspiracy to commit non-cognizable offences and also distinct cognizable offence, in which case there may be scope for saying that as to non-cognizable offences, if prosecution

is sought for conspiracy, there must be sanction. But where the only object of the conspiracy is, as stated above, commission of cognizable offences, then there can be no question of sanction for the steps that are being taken to the fulfilment of the conspiracy. Even apart from this, a Division Bench of this

Court has taken the view in Durgadas Tulsiram Sood Vs. State, that where commission of non-cognizable offences, is merely a means to an end, sanction u/s 196-A(2) would not be necessary. This case followed the earlier case in Emperor Vs. Ramchandra Rango Sawkar, . We are bound by this decision and it would not be open to us to reconsider the matter.

A Full Bench of the Andhra Pradesh High Court in T.V. Sarma Vs. R. Meeriah and Others, expressed in para 32 (at page 230) thus:

Under Section 196(2) Cr.P.C., no court shall take cognizance of the offence of any criminal conspiracy punishable u/s 120-B of the I.P.C. other than a criminal conspiracy to commit a cognisable 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. In this case the offence u/s 201, IPC is punishable with imprisonment which may extend to seven years as the offence regarding which the evidence is caused to disappear or the offenders are sought to be screened from legal punishment is murder which is an offence punishable with death. Hence Section 196(2) Code of Criminal Procedure has no application in so fat as the conspiracy to suppress evidence of the commission of offence or to screen the offenders from legal punishment is concerned. However, in regard to the offence of defamation u/s 500 IPC the punishment is Simple Imprisonment which may be extended to two years. Hence Section 196(2) Code of Criminal Procedure applies. The result therefore is that A-7 to A-9 have to be charged for conspiracy to commit an offence u/s 201 IPC though they may not be charged for committing offence u/s 201 IPC in pursuance of the conspiracy.

In Yash Pal Mittal Vs. State of Punjab, , Their Lordships of the Supreme Court stated in para 13 (at page 2437) thus:

Since the object of the criminal conspiracy is cheating by personation u/s 419 I.P.C punishable with imprisonment which may extend to three years, Section 196-A(2) is no bar to the present trial in absence of a sanction. The fact that the accused are charged with other non-cognizable offences in the same trial cannot affect the validity of the trial. There is no merit in this appeal which is dismissed. The records shall be despatched immediately to the trial Court which will dispose of the case at an early date.

None of the decisions, as cited supra, does state in so express and explicit a fashion that Sub-section (2) is of independent existence, without having any fetters. However, a perusal of those decisions would indicate, by implication, that the said, Sub-section had been construed to be having independent existence. If any reason is to be supplied for the construction of the said Sub-section, to be having any independent existence, that is available in the form of the supplanting of the word "any" placed before the word "criminal conspiracy", which is not found traceable in the corresponding old Section 196-A of the old Code. Further the scope and ambit of the said three Sub-sections referable to the old Ss. 196, 196-A and 196-B (of the old Code) are altogether different and distinct. It is thus crystal clear that Sub-section (2) of the present Section 196 has to be construed to be having an independent existence by itself, without any fetter operating from any quarter whatever and if so construed, the prosecution launched in the instant case for conspiracy to commit offences under Ss. 500 to 502of the Indian Penal Code and Section 12 of the Act, which are not punishable with Rigorous Imprisonment for a term of two years or upwards is to be thrown lock, stock and barrel, inasmuch as the said prosecution had been launched without getting the prior consent of the State Government or the District Magistrate, as the case may be.

No doubt true it is, the Petitioner-accused 2 alone, as already indicated, has come forward with the present action of quashing the criminal proceedings initiated against him. Though the rest of the accused did not come forward to quash the criminal proceedings initiated against them, yet, I rather feel in the peculiar facts and circumstances of the case, the interests of justice require the quashing of the entirety of the criminal proceedings as against all accused.

In the result, the petition is allowed and the criminal proceedings initiated against all accused in C.C. No. 3350 of 1986 on the file of the Sub Divisional Judicial Magistrate''s Court, Poonamalle are quashed.