necessary sanction was not obtained from the Central or State government, as required under Section 196 of the Code of Criminal Procedure (CrPC), before the Magistrate took cognisance of the case under Section 505.
The petitioner, KM Basha, was stated to have posted a message on Facebook allegedly depicting a Pakistani soldier conversing with a lady and with the words "Har dil ki awaaz Pakistan zindabad". This post was deleted a day later.
The police registered a case against him citing Section 505 of the Indian Penal Code (IPC), which deals with public mischief, on the ground that sharing such messages would amount to insulting Indian soldiers, demoralising them and disturbing societal peace.
Basha, however, contended that necessary sanction was not obtained from the Central or State government, as required under Section 196 of the Code of Criminal Procedure (CrPC), before the Magistrate took cognisance of the case under Section 505.
After examining the matter, the High Court found this to be the case as well.
The Court reiterated that under Section 196 of CrPC, prior sanction is necessary to proceed with a case under Section 505 IPC. In this case, the report of the police sub-inspector was not properly registered and Section 196 of CrPC was not complied with, the Court found.
The Court highlighted that such prior sanction is necessary before the Magistrate takes cognisance of an offence under Section 505. Moreover, a preliminary investigation should be conducted by a competent authority in such cases, the Court noted.
"On perusal of the material on record in the case on hand, no such compliance has been made," the Court observed.
Therefore, the judge quashed the pending criminal proceedings against Basha. However, the Court clarified that its order would not prevent the investigating agency from carrying out a fresh investigation after complying with Section 196 of CrPC. If sufficient material is found in such investigation, the investigating agency is at liberty to file a charge sheet and proceed with the case in accordance with law, the Court added.