Ms. Shazia Shaw vs Mr. Khawar Butt and anr

Mohammad Yaqoob Mir, Judge

Complaint titled Khawar Butt vs. Asif Nazir Mir & anr has been filed before the trial court for commission of offence punishable u/s 500 read

with Section 120B RPC. Trial court after recording statement of the complainant and that of the witness has issued the process in accordance with

Section 204 Cr. P.C. It is projected by the learned counsel for the petitioner that the trial court in absence of sanction was not competent to take

cognizance of the offence punishable u/s 120B RPC in view of the clear mandate contained in Section 196-A Cr. P.C.

The challenge thrown to the taking of cognizance for the commission of offence punishable u/s 120B RPC has a prevailing force. Section 196-A

Cr. P. C is relevant to be quoted, same reads as under:-

196-A. Prosecution for certain classes of criminal conspiracy.

No Court shall take cognizance of the offence of criminal conspiracy punishable u/s 120B of the Ranbir Penal Code,-

(1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an

offence, to which the provisions of section 196 apply, unless upon complaint made by order of, or under authority from the Government or some

officer empowered by the Government in this behalf, or

(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, life

imprisonment or rigorous imprisonment for a term of two years or upwards, unless the Government or District Magistrate empowered in this behalf

by the Government has, by order in writing, consented to the initiation of the proceeding:

Provided that where the criminal conspiracy is one to which the provisions of sub-section (4) of 195 apply, no such consent shall be necessary.

Plain wording as employed in sub-section (2) would provide that the consent for initiating proceedings for commission of offence punishable u/s

120B RPC, to be granted by the Government or the District Magistrate empowered in this behalf, is not required vis-Ã -vis offences punishable

with death, life imprisonment or rigorous imprisonment for a term of two years or upwards which means except for such cases or the cases

covered by proviso to sub-section (2) and covered by sub-section (1) of Section 196-A Cr. P.C, the consent for initiating proceedings is

mandatory, otherwise cognizance is barred.

In the present case the offence alleged to have been committed by the petitioner is punishable u/s 500 RPC which provides punishment with

simple imprisonment for a term which may extend to two years, or with fine, or with both, therefore, it does not fall within the exception as carved

out in sub-section (2) of Section 196-A Cr. P.C. When it is so, in absence of the consent of the Government or District Magistrate empowered in

this behalf by the Government, cognizance could not be taken as being barred. Trial court has lost sight of the same which in turn would render the

proceedings initiated on the complaint of respondent No. 1 as without jurisdiction to the extent of commission of offence punishable u/s 120B

RPC, therefore, order where-under process has been issued is set aside.

The trial court shall consider the case for issue of process afresh but shall exclude consideration vis-Ã -vis commission of offence punishable u/s

120 RPC until the requirement of Section 196-A Cr. P. C is satisfied.

Petition succeeds so is disposed of as above along with connected Cr. MP. Copy of the order be send to the trial court.