Jammu, May 12: Setting aside a court order whereby a man was discharged for killing his wife, Jammu and Kashmir High Court today held that the legality or illegality of prosecution sanction cannot be decided at the stage of framing of charges against the accused.
 “The question of absence of sanction has to be raised and decided at the stage of deciding framing or otherwise of the charge whereas the question of invalidity of the sanction has to be considered during the course of the trial, a single bench of Justice Muhammad Yaqoob Mir today.
 Remitting back the case to the Sessions Judge, Jammu for proceeding in the matter afresh in accordance with the Code of Criminal Procedure, the court observed that it was for the prosecution during the trial to discharge the onus whether the order sanctioning transfer of the investigation of the case to the CBI would in any manner be deemed to be a sufficient compliance of requisite sanction as required in terms of first proviso to Section 188 CrPC.
 The deceased Romika Sharma was married to Sanjeev Kumar of Jammu, who was appointed in a Multi National Company and posted at Kathmandu, from where body of the woman was recovered.
 On the intervention of the family of the deceased woman a case was registered at Kathmandu and Jammu and subsequently the investigation was transferred to Central Bureau of Investigation (CBI) by the Government of India.
 The CBI filed a revision petition against the discharge order passed by the Sessions Judge Jammu. The High Court held that position of the procedure as envisaged under Section 188 Crpc has not been taken note of in the earlier judgment dated June 6, 2005, therefore, this plea was open to be taken and considered as has been done by the Sessions Judge in its order dated May 28, 2011, wherein Sessions Judge has concluded that in absence of requisite sanction as envisaged by proviso to Section 188 CrPC, the charge as to the offence could not be enquired in the State.
 “Trial court has dealt with the issue and the order holding therein that there is no sanction on record and has also observed that Government of India in consultation with the Government of State of Jammu and Kashmir has transferred the case to the CBI but that will not be a sanction within the meaning of proviso to Section 188 CrPC”

Lastupdate on : Sat, 12 May 2012 21:30:00 Makkah time
Lastupdate on : Sat, 12 May 2012 18:30:00 GMT
Lastupdate on : Sun, 13 May 2012 00:00:00 IST