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Queen-empress Vs. Rachappa and Irappa - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1889)ILR13Bom109
RespondentRachappa and Irappa
sanction to prosecute - revocation of--distinction between a sanction granted to a private person and a complaint by a court--criminal procedure code (act x of 1882), sections 195 and 476. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration..........receiving a case duly sent to him by a case duly sent to him by a court under section 476 of the code, a magistrate is bound to proceed with the case according to law. the court to which the court making the complaint is subordinate has no power to stop the enquiry reg. v. amruta nathu 7 bom. h.c. r cr. ca. 29 ; though of course the magistrate can discharge the accused it the evidence does not warrant a commitment reg. v. pandurang myral 5 bom. h.c. r. cr. ca. 41 . we, therefore, reverse the order of the district judge in the case of rachappa as made without jurisdiction.parsons, j.2. i concur. it is plain that section 195 of the code of criminal procedure, 1882, makes a great distinction between the sanction and the complaint of a public servant or court--a distinction that has.....

Birdwood, J.

1. The District Magistrate has referred two cases to us--(1) Imperatrix v. Bachappa and (2) Imperatrix v. Irappa, which do not stand on the same footing, but which we can conveniently dispose of together. In both cases sanction was given for the prosecution of the accused under Section 195, Clause (b), of the Code of Civil Procedure. Rachappa's prosecution was sanctioned by the Subordinate Judge of Hubli, who after granting the sanction sent the case to the First Class Magistrate of Hubli for enquiry and trial under Section 476 of the Code, Irappa's prosecution was sanctioned by the Magistrate (First Class) of Hubli, who does not seem to have sent the case to any other Magistrate for enquiry and trial, as contemplated in Section 476. The District Magistrate seems to have ordered the First Class Magistrate subordinate to him to try the case against Irapppa; but we cannot find that any such procedure as is prescribed by Section 476 was adopted in this case. In both cases the District Judge of Dharwar revoked the sanction granted. We see no reason for interfering with his order in Irappa's case, as we take it to have been simply an order revoking a sanction granted by a subordinate Court. No question hag been raised as to the District Judge's jurisdiction to make an order of this kind. Indeed, it is an order which he is clearly empowered by Section 195 to make; and no application has been made to us by any party aggrieved by it for its reversal. Section 195 of the Code distinguishes between a 'sanction' granted by a Court for a prosecution and a 'complaint' made by a Court. A Court may either grant a sanction to a private person, or, whether it grants a formal sanction or not, it may itself adopt the procedure laid down in Section 476. If it grants a sanction and merely sends the accused to a Magistrate, it does not comply with the requirements of Section 476. But if it makes such enquiry as may be necessary under that Section and then sends the case to the nearest Magistrate of the First Class for enquiry and trial, or, if the Court to which it is subordinate, adopts that procedure, then such action amounts to the making of a complaint such as is contemplated in Section 195, as distinguished from a complaint made by a private person to whom a sanction has been granted under the Section--See I.L.R. 7 All. 871 . The distinction is recognized in the Queen v. Baijoo Lall I.L.R. 1 Cal. 150 and in Gyan Chunder Roy v. Protap Chunder Doss I.L.R. 7 Cal. 208 . Though a superior Court can revoke a sanction granted by a subordinate Court, no power is given to it to set aside a complaint duly made by a subordinate Court. We think it was the clear intention of the Legislative that when a Court finds it necessary to take proceedings in the nature of a complaint, it should be as free to do so as any private individual who has occasion to put the Criminal Courts in motion against an accused person, and that no superior Court should have the power to nullify any proceeding by way of complaint duly taken by a Court according to law. On receiving a case duly sent to him by a case duly sent to him by a Court under Section 476 of the Code, a Magistrate is bound to proceed with the case according to law. The Court to which the Court making the complaint is subordinate has no power to stop the enquiry Reg. v. Amruta Nathu 7 Bom. H.C. R Cr. Ca. 29 ; though of course the Magistrate can discharge the accused it the evidence does not warrant a commitment Reg. v. Pandurang Myral 5 Bom. H.C. R. Cr. Ca. 41 . We, therefore, reverse the order of the District Judge in the case of Rachappa as made without jurisdiction.

Parsons, J.

2. I concur. It is plain that Section 195 of the Code of Criminal Procedure, 1882, makes a great distinction between the sanction and the complaint of a public servant or Court--a distinction that has already been pointed out in the case of Gyan Chunder Roy v. Protap Chunder Doss I.L.R. 7 Cal. 208 . A sanction is a document to be drawn up and given to a private individual in order that he may file it with the complaint he makes to the Magistrate, and to enable the Magistrate to take cognizance of the complaint. It is to such a document only that the after clauses of Section 195 profess to apply, and to that application alone they must be confined. 4 complaint, on the other hand, is an allegation made to a Magistrate with a view to his taking action under the Code, that some person has committed an offence (Section 4 (a)).

3. Under Section 195 a Magistrate can take cognizance of a complaint if male by a public servant or by a Court. Either, therefore, can make a complaint, although a Court is at liberty, if it chooses, to proceed instead in accordance with the provisions of Section 476. When once, however, such a complaint is made, Section 195 does not give to any other Court the power of revoking that complaint, still less can the section be construed as conferring upon a superior Court the power to interfere when a subordinate Court has sent a case for enquiry or trial to a Magistrate under the provisions of Section 478. The provisions of Section 195 relating to the revocation or grant of a sanction given or refused by a subordinate Court can, in my opinion refer only to a sanction, and cannot apply to a complaint. I am supported in this opinion by a decision of the Full Bench of the Allahabad High Court in the case of Ishri Prasad v. Sham Lall I.L.R. 7 All. 871 where it was held that the proviso in the section that the sanction shall not remain in force for more than six months did not apply to a complaint. If that provision does not apply, it follows that no other similar provision applies to a complaint, and I am of opinion that this is so. Applying, then, this principle to the cases referred to us, I find that the Sessions Judge had power to interfere in Irappa's case, as in that case, a sanction only was given and no complaint made. I find that he had no power to interfere in Rachappa case, since a Court under the powers conferred on it by Section 476 had sent that case to a Magistrate.

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