Allahabad High Court Quashes Criminal Proceedings Against Dr.Kafeel Khan Over Anti-CAA Speech At AMU

The Bench of Justice Gautam Chaudhary has quashed the entire criminal proceedings, which was initiated pursuant to his alleged provocative speech. Also, the cognizance order of the Chief Judicial Magistrate, Aligarh has also been set aside.

In this very matter, National Security Act was also invoked by the UP government against Dr. Khan. However, last year the Allahabad High Court quashed the detention of Dr.Khan under NSA observing that his speech was actually a call for national integration.

The case in brief

A First Information Report was registered against Dr. Khan and subsequently he was arrested for a speech he delivered at the Aligarh Muslim University on 12 December 2019.

The FIR under Section 153A of the Indian Penal Code (promoting enmity between different groups on grounds of religion) against him stated that his speech had "disrupted the harmony between the communities", and that it was "also likely to create a law and order situation".

Later on, Sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity, hatred or ill will between classes) were also added to the FIR

Thereafter, a charge sheet was filed against him in the court of Chief Judicial Magistrate, Aligarh, in March 2020.

The Court took cognizance of the charge sheet and had summoned him to face the trial in the case. Aggrieved with the same, Dr. Khan had moved High Court with his Section 482 CrPC plea seeking quashing of the criminal proceedings and the cognizance order.

Arguments put forth

The plea primarily argued that prior permission of the government was not taken before the filing of a charge sheet against him.

It was argued that as per Section 196 CrPC, before taking cognizance of the offense under section 153-A, 153-B, 505(2) of the IPC, the Central Government or the State Government or the District Magistrate has to give their prior prosecution sanction for the prosecution, and such prior sanction was not taken in the present case.

Therefore, it was submitted that since such prior sanction/permission was not taken in the instant case against Dr. Kafeel, the cognizance order as well as the criminal proceedings were liable to be quashed/set aside.

[NOTE: Section 196 Cr.P.C., contemplates a prior sanction from Central Government or State Government before cognizance is taken of any offence punishable under Chapter-VI I.P.C.

Therefore, as per the requirement of Section 196 Cr.P.C., no cognizance could have been taken of offence punishable under Chapter-VI I.P.C. unless prior sanction from Central Government or State Government is obtained.

The object of Section 196 Cr.P.C. is to ensure prosecution after due consideration by the appropriate authority so that frivolous or needless prosecution is avoided.

Importantly, as per Section 196(1)(a) and (1-A)(a), there is a complete bar for taking cognizance of the offences punishable under Sections 153-A, 153-B, Section 295-A or Sub-sections (1), (2), and (3) of Section 505, IPC.]

Court's observations

At the outset, the court referred to the Jharkhand High Court's ruling in the cases of Swaraj Thackeray Vs. State of Jharkhand & Ors. 2008 CRI. L. J. 3780 & Madhya Pradesh High Court's ruling in the case of Sarfaraz Sheikh Vs. The State of Madhya Pradesh and observed thus:

"…Before taking cognizance of the offense under IPC, prior prosecution sanction has not been taken by the Central Government or the State Government or the District Magistrate and the learned Magistrate did not properly comply with the relevant provisions while passing the order of cognizance."

Accordingly, the Court allowed the application filed under section 482 CrPC and the entire proceedings in case against Dr. Kafeel under section 153-A, 153-B, 505(2), 109 IPC, which is pending in the court of Chief Judicial Magistrate, Aligarh, and the Cognizance Order were set aside/quashed.

The Court has also remanded the matter back to the court of Chief Judicial Magistrate, Aligarh with the direction that as per the provisions of section 196 (A) Cr.P.C., the cognizance of the against Dr. Kafeel under the said sections be taken only after obtaining prior sanction of prosecution by the Central Government or the State Government or the District Magistrate.

Advocate Rajrshi Gupta, Dileep Kumar (Senior Adv.), Advocate Manish Singh & Nazrul Islam Jafri(Senior Adv.) appeared for Dr. Kafeel Khan.

Case title - Dr. Kafeel @ Dr. Kafeel Ahmad Khan v. State of U.P. and Another