1. We understand that the accused person in this case who is charged with harbouring an offender and receiving a bribe from him and who has been committed to the Court of Session at Dharwar, is a Vatandar Patil and consequently that he could not be prosecuted except with the sanction provided by Section 197 of the Criminal Procedure Code. It is on this understanding that the judgment of this Court is based.
2. We start, therefore, with this, that a previous sanction was under Section 197 essential to confor jurisdiction on the Magistrate to take cognizance of the offence. Now as a matter of fact he took cognizance of this offence and proceeded some way with his enquiry before any sanction was signed by the sanctioning officer. For he began to take evidence in the case on the 5th of April and the sanction was not signed until the 12th. So obviously there was no previous sanction. The defect becomes still more glaring when we learn, as happens to be true in this case, that the sanction itself was not placed on the record of the case until the 2nd of May, which was the very day on which the order of commitment to the Court of Session was made. Nor do the papers in the case give any justification for supposing that the sanction actually came into the hands of the Magistrate before the 2nd of May. So that although the law requires a previous sanction, the Magistrate had taken cognizance of the case and proceeded with it without that sanction and he had, so far as we can gather, proceeded to record the whole of the evidence without being aware that any such sanction existed. It is unfortunate but it seems to us that this being so, the whole of these proceedings are without jurisdiction and must be regarded as totally invalid.
3. It follows that the commitment to the Court of Session is invalid and that it must be, quashed, and we make that order making it clear that the whole of the proceedings must start again from the very beginning if further proceedings are to be taken against this present accused.
4. We have not, it will be observed, dealt with the particular points on which the additional Sessions Judge referred this case to us. They are points of interest and his statement of them is clear and forcible. It is not essential no doubt that we should express any opinion on them but one of these points is of such importance and arises frequently enough to make it desirable to say something. That point is based on this : that the Magistrate committed this case to the Court of Session for reasons which appear in his own words as follows :-'The case is not exclusively triable by the Sessions Court, but the accused is a Vatandar and relying on G. R. No. 8350, dated the 15th of December 1915, Revenue Department, both the parties pray for the committal of this case and I have no hesitation in doing so.' It appears to me that when a Magistrate comes to consider whether he shall or shall not commit a case, he has to consider the gravity of the offence ; the punishment with which in his opinion it ought to be met and the section under which he charges the accused person. He may no doubt properly consider any special difficulties in the case or that it is a matter of some peculiar public importance, and no doubt other matters also might enter into his consideration, such as the wish of the parties. But a Magistrate must not determine this important matter whether he is to commit the case or to try it himself solely by the wish of the parties and the terms of a Government Resolution. No resolution whatever that the Executive Government has issued can properly control or determine the discretion of a Magistrate in such a matter; for the Government have no authority whatever to interfere with this discretion Avhich is imposed on the Magistrate by the law and must be exercised by him.
5. I agree that the order of commitment should be set aside. It is not denied in this case that a sanction under Section 197, Criminal Procedure Code is necessary. The sanction was granted by the Collector on the 12th April, and it was produced before the committing Magistrate on the 2nd May. The proceedings had already commenced before the 12th April, and the order of commitment was made on the 2nd May. Therefore the proceedings before the committing Magistrate including the order of commitment must be set aside. This will be without any prejudice to any proceedings that may be properly taken hereafter against the accused.
6. In this view of the case it is not necessary to consider the point raised by the additional Sessions Judge as to the form of sanction. As regards the other ground upon which this order of commitment is liable to be set aside, I desire to add that it was the duty of the Magistrate to determine under the Code of Criminal Procedure on entirely judicial considerations whether the accused should be committed to a Court of Session or not. In the present case he has taken into consideration a Government Resolution and expressed no opinion of his own in committing the case to the Court of Session. It is not necessary for me to state in detail what he may properly consider in committing the accused to a Court of Session. That is a question, with which the committing Magistrate has to deal on the evidence in the case. It is necessary to point out that it is not open to him to take the Government Resolution into consideration in dealing with the question. This, case affords an illustration of the manner in which such a Resolution is apt to be used. It is also necessary to point out that Section 60 of the Bombay Hereditary Offices Act (III of 1874) to which the Government Resolution relates, cannot be used as a ground for committing any case to a Court of Session. The section gives certain powers to the Government to deal with the Vatan, when a representative Vatandar or any deputy or substitute appointed by him is convicted by a criminal Court not inferior to a Court of Session of any offence referred to in the section. That would indicate that when a person of the above description is properly committed to, and convicted by, a Court of Session the Government may exercise the powers conferred by the section. The question whether a particular case should be committed to a Court of Session should be decided by the committing Magistrate without any reference to the section; or to the 'Government Resolution relating to the section just as the question of conviction must be decided without any reference to it. The powers of Government under Section 197, Clause (2) of the Code of Criminal Procedure stand altogether on a different footing and my remarks have no application to any directions which may be properly issued under that clause It is not suggested that the Government have specified the Court before which a trial is to be held in this case under Section 197 (2) of the Criminal Procedure Code.