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In Re: Ningappa Rayappa Ghotadki - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 224 of 1923
Judge
Reported inAIR1924Bom321; (1924)26BOMLR183
AppellantIn Re: Ningappa Rayappa Ghotadki
Excerpt:
.....of criminal breach of trust--dismissal of complaint without examining complainant--sanction to prosecute complainant for bringing false charge--high court in revision of sanction order can examine validity of dismissal of complaint.;a complaint for criminal breach of trust was dismissed by the trying magistrate without examining the complainant, in contravention of section 203 of the criminal procedure code. the magistrate then called upon the complainant to show cause why he should not be prosecuted for an offence under section 211 or section 182 of the indian penal code, for bringing a false charge and granted sanction to prosecute him for the offence. the complainant having applied:-- ;setting aside the sanction, that the complainant could not be convioted of bringing a false..........undoubtedly if the complainant had appeared before us and asked us to set aside the order of the magistrate dismissing his complaint, and to direct the learned magistrate to hear the complaint according to law, we should have made such an order. that was decided in in the matter of the petition of ganesh narayan sathe. if we refuse to accede to the petitioner's request that we should express an opinion on the validity or otherwise of the magistrate's order, that question will have to be decided by the magistrate who tries the charge under section 211, and it is clear that he would have to come to the conclusion that the dismissal of the complaint was not according to law. it seems, therefore, that that being the obvious result if we refuse to interfere with the order of sanction to.....
Judgment:

Norman Macleod, Kt., C.J.

1. We think the rule must be made absolute. The sanction was given to prosecute the petitioner under Section 211 or Section 182, Indian Penal Code, the facts being that the petitioner had made a complaint charging one L.V. O'Brien with criminal breach of trust. The Magistrate without examining the complainant, as he was bound to do under Section 203, Criminal Procedure Code, dismissed the complaint. Then he called upon the present petitioner to show cause why he should not be prosecuted for an offence under Section 211 or Section 182 of the Indian Penal Code. If the complaint was not disinisssed according to law, then the complainant would not be convicted of bringing a false charge. The only question on which I had any doubt was whether on this application in revision for setting aside the order granting sanetion, wo could hold that the order dismissing the complaint was wrongly made. Undoubtedly if the complainant had appeared before us and asked us to set aside the order of the Magistrate dismissing his complaint, and to direct the learned Magistrate to hear the complaint according to law, we should have made such an order. That was decided in In the matter of the petition of Ganesh Narayan Sathe. If we refuse to accede to the petitioner's request that we should express an opinion on the validity or otherwise of the Magistrate's order, that question will have to be decided by the Magistrate who tries the charge under Section 211, and it is clear that he would have to come to the conclusion that the dismissal of the complaint was not according to law. It seems, therefore, that that being the obvious result if we refuse to interfere with the order of sanction to prosecute the petitioner under Section 211, it is preferable that we should decide the matter ourselves and hold that the complaint was wrongly dismissed, and that would be a good ground for refusing to give sanction to prosecute the complainant.

Shah, J.

2. I agree that the sanction should be revoked. In the present case there has been no legal disposal of the complaint. The order dismissing it under Section 203, Criminal Procedure Code, is clearly wrong, as the complainant was not examined at all; and the complainant has in no sense acquiesced in that order. Where there has been no legal disposal of the complaint, it seems to me that no sanction to prosecute the complainant on the footing that it is a false complaint should be granted. Under the circumstances of the case I am of opinion that the sanction should not have been granted.


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