APHC010377522023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3457] WEDNESDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE HARINATH.N CRIMINAL PETITION NO: 5590/2023 Between: Nithish Thotamshetty ...PETITIONER/ACCUSED AND The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused: 1. JITHENDRA P Counsel for the Respondent/complainant: 1. PUBLIC PROSECUTOR (AP) HN, J Crl.P.No.5590_2023 2 The Court made the following Order: 1. The learned counsel for the petitioner submits that the petitioner is arraigned as Accused No.1 in C.C.No.4424 of 2022, on the file of the Judicial First Class Magistrate, Kurnool, for the alleged offences under Sections 153(A) and 295-A read with Section 34 of the IPC. 2. It is alleged that the petitioner made certain derogatory statements against the Chief Minister of the State in Facebook postings. 3. It is also alleged that the said postings promoted enmity between different groups on the grounds of religion and were prejudicial to the maintenance of harmony. The extracts of four Facebook accounts were also enclosed by the police during investigation. The Sub-Inspector of police took a suo-moto complaint and registered the case. 4. The learned counsel for the petitioner submits that the procedure as contemplated under Section 196 of the Cr.P.C (now Section 217 of the BNSS) was not complied with before taking cognizance of the offences under Sections 153(A) and 295-A of the IPC. HN, J Crl.P.No.5590_2023 3 5. Section 196 of Cr.P.C reads as follows: “192. Making over of cases to Magistrates,--(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.” 6. The reliance is also placed on the judgment of the Madhya Pradesh High Court in the matter of Sarfaraz Sheikh vs. The State of Madhya Pradesh, which states that obtaining sanction from the competent authority is a pre-requisite for the Magistrate to take cognizance of offences under Sections 153(A) and 295-A of the IPC. 7. The learned Assistant Public Prosecutor, on written instructions, submits that the prosecution orders were not collected from the Collector and the District Magistrate to prosecute the accused under Section 153(A) of the IPC. The instructions received by the learned Assistant Public Prosecutor are taken on file. HN, J Crl.P.No.5590_2023 4 8. Considering the submissions of both the learned counsel and the fact that the provisions of the procedure as contemplated under Section 196 of the Cr.P.C were not complied with, the cognizance of the offence by the learned Magistrate deserves to be set aside. Therefore, C.C.No.4424 of 2022, on the file of Judicial First Class Magistrate is hereby quashed. 9. Accordingly, the Criminal Petition is allowed. Pending miscellaneous petitions, if any, shall stand closed. ___________________ JUSTICE HARINATH.N Date: 19.03.2025 NKA HN, J Crl.P.No.5590_2023 5 186 HONOURABLE SRI JUSTICE HARINATH.N CRIMINAL PETITION No.5590 of 2023 Date: 19.03.2025 NKA