High Court of Punjab and HaryanaCRM-M/23481/2016allowed

Raj Kumar Saini v. State Of Haryana And Another

2017-07-21Mrs. Justice Manjari Nehru Kaul16 pages

CRMM23481 of 2016 (O&M) Decided on:July 21, 2017.

Raj Kumar Saini.

.........Petitioner.

Versus

The State of Haryana and another .........Respondents.

***** Present: Mr. J.S. Bedi, Senior Advocate with Mr. Sunil Sihag, Advocate for the petitioner.

Mr. Manish Bansal, DAG, Haryana.

Mr. K.D.S. Hooda, Advocate and Mr. R.K. Hooda, Advocate for respondent No.2.

CRM225782017 Prayer in this application filed under Section 482 of the Code of Criminal Procedure is for placing on record the relevant extract of Prakash Singh Committee Report, as Annexure A1 and further exemption from filing certified copy of the same.

The document (Annexure A1) is taken on record subject to all just exceptions and the applicant is exempted from filing certified copy of the same.

CRM stands disposed of.

CRMM234812016 By way of present petition filed under Section 482 of the Code of Criminal Procedure, petitioner Raj Kumar Saini has approached this Court seeking quashing of criminal complaint No.COMI230/2015 dated 27.05.2015 (Annexure P1) filed by respondent No.2complainant, namely, Dr. Santosh Dahiya, as well as order dated 01.04.2016 (Annexure P2) passed by learned Chief Judicial Magistrate, Kurukshetra, whereby the petitioner has been summoned to face trial under Sections 153A and 153B of the Indian Penal Code.

Briefly stated, respondent No.2complainant has filed a criminal complaint under Section 153A and 153B IPC against the petitioner with an averment that while making certain remarks/statements, which have been quoted in media including certain newspapers, the petitioner has promoted disharmony, enmity, hatred and illwill between the Jat community and persons of backward class community, which amounts to commission of offence under the aforementioned sections. This act on the part of petitioner is prejudicial to the maintenance of harmony between the aforesaid two communities and has disturbed the public tranquillity. As per the complaint, petitioneraccused belongs to Saini community, which has been declared backward class by Mandal Commission on 07.08.1991. Thereafter, on 04.03.

2014, the Other Backward Classes Commission of India included Jat community in OBC and has extended them the benefit of reservation.

per the Constitution of India. But still in violation of the oath dated 04.05.2014, the petitioner made a statement in 'Punjab Kesri' newspaper that Jats are consuming the share of poor people like a lion of forest. Similarly, on 29.03.2015, the petitioner has made another statement which was published in the 'Sunday Tribune' and has raised objections against Jat reservation. The petitioner has also made a statement in 'Amar Ujala' newspaper. Thus, the act and conduct of the petitioner, which has appeared in various newspapers has promoted disharmony, enmity, hatred and illwill between the Jat community and the persons of backward class community and is prejudicial to the maintenance of harmony between the aforesaid communities as it has disturbed the public tranquillity. The petitioner is also disobeying the policy of his own party.

By way of speeches and press conferences, as have been reported in various newspapers, and the petitioner being a member of the backward community, the imputations and assertions have shown his disrespect to the Constitution of India. Thus, the petitioner has acted against the sovereignty and integrity of India by opposing the reservation given to the other backward classes including the Jat community. On the basis of averments made in the complaint and examination of the witnesses produced in support of the complaint, learned Chief Judicial Magistrate vide order dated 01.04.2016 had come to the conclusion that there were sufficient allegations for the commission of offence under Sections 153A and 153B IPC and accordingly had summoned the petitioner as an accused to face trial in the complaint.

summoning order dated 01.04.2016 passed by Chief Judicial Magistrate, Kurukshetra.

Mr. J.S. Bedi, learned senior counsel for the petitioner has argued that for the offence under Sections 153A and 153B IPC, no prosecution could have been initiated against the petitioner without there being a prior sanction, as envisaged under Section 196 Cr.P.C. Therefore, the present complaint as well as the summoning order dated 01.04.2016 are not sustainable before the scrutiny of law. The very summoning order is, therefore, liable to be set aside. The case of the respondentcomplainant is totally based on newspapers' reports, though two witnesses have been examined from The Tribune and Amar Ujala newspapers, but none of the author of the news reports has been examined as witness in the complaint. The reporter who filed the report was necessarily to be examined before the issuance of process of summoning. Moreover, the petitioner has not issued a press note. Therefore, the newspaper reports are nothing but a hearsay evidence and none of the witnesses of the complaint were present at the time when the alleged statements were made.

He has further argued that even if the allegations, as made in the complaint are taken to be true, no offence whatsoever under Sections 153A and 153B IPC is made out and such statements are merely an expression of opinion which a citizen of India can express in view of the fundamental rights enshrined in the Constitution of India. In fact, the complainant herself has stated in her complaint that the petitioner is opposing reservation. Even on merit, the report of the National Commission for backward classes dated 26.02.2014 has categorically found that the particular caste in question is not

backward in the State of Haryana. The said report finds support in the judgment rendered by Hon'ble Supreme Court in

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5 $ 2 ). In the said order, while issuing notice of motion, this Court has ordered that in the meantime, no appointments in service and no admissions in educational institutions shall be made on the basis of the impugned provisions of the Castes mentioned in ScheduleIII (with reference to Sections 3 and 4) under the heading "Backward Class Block 'C' of the Act. Learned senior counsel for the petitioner has relied upon 6

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',,($)'</+. In the reply filed by way of affidavit of the District Magistrate, Kurukshetra on behalf of respondent No.1State, filing of the complaint by the respondent No.2complainant against the petitioner is not disputed. However, it has been pleaded that as per the provisions of Section 196 Cr.P.C., no prosecution can be initiated against a person for the offence punishable under Chapter VI or under Sections 153A, 295A or subsection 1 of Section 505 of the Indian Penal Code except with the previous sanction of the Central Government or the State Government. In the case in hand, the petitioner is a sitting Member of Parliament and by filing the complaint, no such previous sanction has either been granted by the State Government nor obtained by the complainant for prosecution of the petitioner. The respondent No.

2complainant has not served any notice upon the State Government/ District Magistrate before filing the complaint. Learned State counsel has argued as per the stand taken in the affidavit of respondent No.1 i.e. District Magistrate, Kurukshetra.

IPC, no prior sanction has ever been granted by the State Government nor the same has been obtained by the complainant for prosecution of the petitioner before filing the complaint in hand.

Though respondent No.2complainant has not filed any reply, but by way of CRM No.22578 of 2017, learned counsel has placed on record the extract of Prakash Singh Committee report.

On the basis of said report, learned counsel for the respondent No.2complainant has argued that the report of the Committee shows that the petitioner has spread hatred in the society and, therefore, there is nothing illegal in the impugned summoning order dated 01.04.2016 passed by learned Magistrate.

He has further contended that the averments made in the complaint fulfil the very contents of the offence under Sections 153A and 153B IPC. The Prakash Singh Committee Report, as appointed by the State Government, is sufficient to establish the role attributed to the petitioner. The Committee has submitted a detailed report and Chapter 4 has been accorded with the heading "Adding Fuel to the Fire" holding different persons responsible for the violence. The Committee has held the petitioner responsible for adding fuel to the fire. Thus, the summoning of the petitioner issued by learned Magistrate is in accordance with law. I have heard learned counsel for the parties. In the present case, the petitioner, who is a sitting Member of the Parliament, has called in question legality of the summoning order dated 01.04.2016 passed by learned Magistrate. The provision under Section 196 Cr.PC has been made to protect a person against the institution of possibly

vexatious criminal proceedings for offences alleged to have been committed by him. The provision of Section 196 Cr.P.C. reads as under: >',+ !

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0%&'($/)$ 0)+/,, Hon'ble Calcutta High Court has held that the language of Section 196 Cr.P.C. is specific and couched in mandatory terms. Under the provisions of Section 196 Cr.PC, no Court has been empowered to take cognizance except with the previous sanction of the State Government. The expressions "shall" and "previous" make the intention of the legislature very clear. The previous sanction for prosecution is a 'condition precedent' and, therefore, "sanction" is mandatory for launching prosecution for the offence under Sections 153A and 153B I.P.C. In ; : 56

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4 5 $ 2 ), it has been held by Hon'ble Jharkhand High Court that the cognizance of the offence punishable under Sections 153A, 153B, 295A or subsection(1), (2) and (3) of Section 505 IPC is barred in the absence of sanction for prosecution. It has also been held that prior sanction under Section 196

Cr.P.C. was must before taking cognizance of offence under Sections 153A and 153B IPC. Thus, in the absence of previous sanction and with the use of expression "shall", no Court has been given authority to take cognizance for offence under Sections 153A and 153B IPC.

Moreover, from the bare perusal of Section 196(1)(a)(1A)(a) Cr.P.C., as reproduced hereinabove, it is absolutely clear that there is complete bar for taking cognizance for offence under Sections 153A and 153B I.P.C.

It is clearly established that in the present case, the cognizance of offence under Sections 153A and 153B IPC has been taken by learned Magistrate. But there is no dispute that before taking cognizance in the case i.e. complaint filed under Sections 153A and 153B IPC, no prior sanction of the State Government/District Magistrate, which is a condition precedent, was taken.

The fact that sanction as provided under Section 196 Cr.P.C. has not been granted by the State Government is also established from the reply filed by way of affidavit of District Magistrate, Kurukshetra. Therefore, this Court finds that in the absence of sanction under Section 196 Cr.P.C., the very complaint and the summoning order are not legally sustainable. The Magistrate has no jurisdiction to take cognizance of the offence enumerated in the complaint against the petitioner in the absence of any sanction as envisaged under Section 196 Cr.P.C.

Consequently, the impugned summoning order dated 01.04.2016 passed by learned Chief Judicial Magistrate, Kurukshetra (Annexure P2), vide which the petitioner has been summoned to face trial under Sections

153A and 153B IPC, cannot be allowed to sustain and is hereby set aside. Similarly, the criminal complaint No.COMI230/2015 dated 27.05.2015 (Annexure P1), which has been entertained by learned Magistrate without there being any sanction as provided under Section 196 Cr.P.C., is also quashed with all consequential proceedings arising therefrom. The petition stands allowed in the above terms.

√ Whether speaking/reasoned:

Yes/No √ Whether Reportable:

Yes/No