1 IN THE HGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CRIMINAL MISC. PETITION NO.1479/2009 (Kheta Ram Vs. State of Raj. & Ors.) Date of Order : 20.07.2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. H.E. Mooman with Mr. Abdul Latif, for the petitioner. Mr. Shambhoo Singh, for the respondents. Heard learned counsel for the parties. The petitioner is elected Up-Sarpanch, Panchayat Samiti, Revdar, District Sirohi. It is contended by learned counsel for the petitioner that the petitioner is challenging the criminal proceedings pending against him since 1995 on the ground that being elected member of Panchayat, no cognizance can be taken without prosecution sanction, which is to be issued by the competent authority but in this case, the learned Magistrate took cognizance upon protest petition filed by the complainant and ignored the legal aspect of the matter, therefore, the proceedings which is initiated against 2 the petitioner in the year 1997 by way of taking cognizance was illegal and, therefore, the same may be quashed. In this case, a complaint was filed against the petitioner and ten other persons for committing offence under Sections 447, 448, 379, 380, 147 and 148 I.P.C. The said complaint was sent to the concerned Police Station for investigation under Section 156 (3) Cr.P.C. After investigation, the concerned police station filed final report in the matter. Thereafter, a protest petition was filed before learned Magistrate and learned Magistrate while rejecting the final report took cognizance against the petitioner and others after recording statement of complainant. Learned counsel for the petitioner submits that cognizance was taken against the petitioner in the year 1997 but for prosecuting the petitioner, a condition precedent was to obtain sanction from the government because the petitioner is elected Up-Sarpanch of Panchayat Samiti. But, this sanction was not obtained and learned Magistrate proceeded to take cognizance against the petitioner. Learned counsel for the petitioner submits that although the petitioner participated in the trial and now he is challenging the said proceedings but as per provisions of Criminal Procedure Code this objection can be raised at any stage. 3 Therefore, the proceedings, which is abinitio wrong and contrary to the provisions of Code of Criminal Procedure can be challenged at any stage. I have perused the entire record of the case. It is admitted position of the case that this matter is pending since 1997 and till filing this petition, no objection was raised by the petitioner by way of filing any application before the learned Magistrate. More so, the petitioner himself participated in the trial and at present most of the prosecution witnesses have been examined by the trial Court, therefore, at this stage, I am not inclined to interfere in the proceedings. However, the petitioner will be at liberty to raise his objection with regard to necessity of prosecution permission before taking cognizance before the concerned Magistrate by way of filing application or at the time of final arguments. With these observation, this misc. petition is dismissed. (GOPAL KRISHAN VYAS), J arun