Patherya, J. - (1.) THIS is an application challenging the order dated 31st October, 2008 whereby sanction for prosecution has been granted in respect of the respondent no.4, 5 and 6.
(2.) THE case of the petitioner is that upon completion of investigation by the Central Bureau of Investigation (CBI) a final report was submitted under Section 173 of the Code of Criminal Procedure. On the basis thereof proceedings were initiated in the Court of the Metropolitan Magistrate and on 22nd Setember, 2008, the Magistrate passed an order that no sanction was required. Inspite thereof by order dated 31st October, 2008 sanction has been granted under Section 120B of the Code of Criminal Procedure read with Section 506 of the Indian Penal Code (IPC). In order to protect the respondent nos.4, 5 and 6 no sanction has been granted under Section 306 of the IPC. In fact no sanction was needed as the acts of the private respondents is not in the course of their respective duty. THEre is no reason for non-inclusion of Section 306 of the IPC in the order passed. By not including Section 306 the authorities have sought to nullity the findings in (2008) 3 CHN 857. THE said decision has been upheld by the Appellate Court and is pending before the Supreme Court of India. It is only at hearing before the Supreme Court of India that the order dated 31st October, 2008 was shown and on basis whereof bail was granted to the private respondent. Section 506 and Section 120B are bailable offences but Section 306 is a non-bailable offence. Therefore, the authorities to protect the private respondents their officers have not granted sanction under Section 306. The only purpose for non-grant of sanction is to protect its officers. Inspite of all ingredients of Section 306 being present the same was not included. Reliance is placed on 2003 CrLJ 710, (2000) 8 SCC 131 and (2001) 6 SCC 704. The sanction granted was not necessary. Therefore, for non-inclusion of Section 306, the order dated 31st October, 2008 is rendered bad and liable to be set aside. Counsel for the State submits that Section 506 deals with conspiracy to break the marriage of Priyanka and Rizwanur. There was no material on evidence that the private respondents abetted in the suicide of the victim, therefore, Section 306 has not been included. Non-inclusion of Section 306 can always be argued before the Trial Court and need not be challenged in writ proceedings as held in (2000) 9 SCC 742. A sanction order is to be passed by application of mind of the materials gathered by the investigating officer, in the course of investigation along with other materials prior to grant of sanction. The conclusion reached must be independent on the basis of facts and materials placed. Reasons need not be stated and the order dated 31st October, 2008 is passed on documents collected and charge-sheet filed. In passing the order for sanction neither has jurisdiction been exceeded nor is their lack of exercise of jurisdiction. In fact the question of sanction can be raised at any stage as held in (2001) SCC CrLJ 1234. As the order dated 31st October, 2008 has been passed after due consideration of all documents and charge-sheet filed the same need not be interfered with.
(3.) COUNSEL for Central Bureau of Investigation (CBI) submits that all the conditions necessary for issuance of sanction under Section 197 has been satisfied. In fact no sanction was needed as held by the Metropolitan Magistrate on 22nd September, 2008. The only reason for obtaining sanction is by way of abundant caution as it happens in many cases when no sanction is taken the officers approach the Court, on the ground that sanction ought to have been taken. This delays the proceedings, therefore, sanction was taken. In fact the respondent no.3 is not a Government employee and, therefore, no sanction was necessary. Counsel for the private respondent nos.5 and 6 submits that it was the CBI which sought sanction in respect of all three officers as will appear from Paragraph 6 of the charge-sheet filed. Such charge-sheet has been prepared on the basis of all documents submitted. No Narazgi petition (objection) was raised before the Magistrate which could have been done and re-investigation directed. It was at the instance of CBI that sanction was sought and sanction granted.;