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Emperor Vs. Desaibhai Khushalbhai Patel - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 84 of 1937
Judge
Reported in(1937)39BOMLR1056
AppellantEmperor
RespondentDesaibhai Khushalbhai Patel
DispositionAppeal dismissed
Excerpt:
.....when an objection was taken on his behalf that the proceedings were not legal as the proper sanction of government for his prosecution was not obtained as required by section 197 of the criminal procedure code, he being the matadar revenue and police patel and as such not removable from office without the previous sanction of the local government. the magistrate thereupon proceeded to obtain the necessary sanction, and in due course a government resolution was passed, which, after setting out all the facts of the case leading up to the prosecution, provided as follows:;'sanction is accorded under section 197 of the code of criminal procedure, 1898, to the prosecution of desaibhai khushalbhai, revenue and police patel of sinjivada, taluka matar, district kaira, for an offence..........sanction, i.e. sanction before cognizance is taken by the magistrate. under section 200 of the code a magistrate who takes cognizance on complaint is required to examine the complainant on oath before taking further proceedings. the first class magistrate, matar, duly verified the complaint but that was before sanction had been obtained. the first class magistrate, kaira, merely filed the complaint and did not obtain a fresh complaint or get it verified again. according to mr. o'gorman's argument, the proceeding which began with the verification by the first class magistrate, matar, must be treated as one continuous proceeding, the whole of which is vitiated by the omission to obtain previous sanction. the learned additional sessions judge in his order dealing with this point has.....
Judgment:

Broomfield, J.

1. [His Lordship, after setting out the facts, proceeded:] The first point taken in the appeal is that the provisions of Section 197 of the Criminal Procedure Code have not been complied with. It is contended that the sanction is not in the proper form and does not specify with sufficient clearness the offences for which prosecution of the appellant was permitted. The learned Counsel for the appellant has relied on Queen-Empress v. Samavier I.L.R. (1893) Mad. 468. It was held in that case that an order by the Board of Revenue, Madras, sanctioning the prosecution of a Deputy Tahsildar by the Collector of the District for 'bribery or such of the charges set forth in the Deputy Collector's report as he thinks likely to stand investigation by a criminal Court' is not a legal sanction within the meaning of the Criminal Procedure Code. But, as has been pointed out in Emperor v. Madhav Laxman I.L.R. (1918) Bom. 147 : 20 Bom. L.R. 607 what happened in the Madras case was that Government had delegated the power of selecting charges without satisfying itself that the facts justified a prosecution. The position is quite different in this case. The preamble to the Government resolution in which the sanction is given sets out the whole of the facts. The sanction was given for a prosecution for the offence which those facts might be held to disclose. Section 477 was specifically mentioned, and it was under that section and no other section that the accused were prosecuted. In Emperor v. Madhav Laxman sanction had been given to prosecute 'for cheating or for such other offence for which it may be necessary to prosecute in connection with obtaining money from ryots.' It was held that the sanction was not invalid and that it sufficiently designated the offence or offences which might be established in connection with obtaining money from ryots. In Imperatrix V. Lakshman Sakharam, Vaman Hari and Balaji Krishna I.L.R. (1877) Bom. 481 the sanction directed the prosecution of a public servant 'under Section 466 or any other section which may seem applicable after further investigation.' It was held that a sanction in that form was perfectly legal. I think, therefore, that there is no substance in this argument.

2. It is next contended that Section 197 requires previous sanction, i.e. sanction before cognizance is taken by the Magistrate. Under Section 200 of the Code a Magistrate who takes cognizance on complaint is required to examine the complainant on oath before taking further proceedings. The First Class Magistrate, Matar, duly verified the complaint but that was before sanction had been obtained. The First Class Magistrate, Kaira, merely filed the complaint and did not obtain a fresh complaint or get it verified again. According to Mr. O'Gorman's argument, the proceeding which began with the verification by the First Class Magistrate, Matar, must be treated as one continuous proceeding, the whole of which is vitiated by the omission to obtain previous sanction. The learned Additional Sessions Judge in his order dealing with this point has expressed the opinion that cognizance is not taken within the meaning of Section 197 until the Magistrate commences to take evidence and also that in the case of offences triable exclusively by the Court of Session it is sufficient if sanction is obtained before the Sessions trial begins. The learned Government Pleader has not argued in support of this view, and I am unable to accept it. To satisfy the formal requirements of the law the First Class Magistrate, Kaira, before re-commencing the proceedings should have again examined the complainant and verified his complaint instead of merely taking on record the complaint verified by his predecessor. On the other hand, I cannot regard this as anything but a purely technical irregularity which does not vitiate the proceeding. For all practical purposes the proceedings commenced afresh after the transfer of the case to the First Class Magistrate, Kaira, and the issue of fresh warrants by him. In spirit and in substance Section 197 was complied with. Nothing was omitted except the repetition of the verification of the complaint which under the circumstances would have been a mere formality. The complainant was of course examined as a witness in the inquiry before the Magistrate and at the trial. The omission to examine the complainant under Section 200 of the Code, it has been held, is an irregularity which does not vitiate the proceedings : Bhairab Chandra Barua V. Emperor I.L.R. (1919) Cal. 807 Emperor v. Bateshar I.L.R. (1915) All. 628 Chiragh Din v. The Crown I.L.R. (1923) Lah. 359.

3. Mr. O'Gorman has drawn our attention to Emperor v. Bhimaji Venkaji I.L.R. (1917) Bom. 172 : 20 Bom. L.R. 89 and Emperor v. Kalu Mahadu (1926) 29 Bom. L.R. 207. In the first of these cases the whole of the evidence had been taken before the order of sanction was placed on record. In the second case no sanction of the Local Government was ever obtained at all. These cases therefore obviously stand on a different footing.

4. Then there is also Section 532 of the Code; which empowers a Court of Session to accept an irregular commitment if it considers that the accused has not been injured thereby, unless during the inquiry and before the order of commitment, objection was made on behalf either of the accused or of the prosecution to the jurisdiction of the Magistrate. The Additional Sessions Judge applied this section and accepted the commitment and in my opinion he was justified in doing so. It cannot be suggested that the accused had been prejudiced in any way by the omission to verify the complaint afresh, and no objection was taken to the jurisdiction of the Magistrate after the sanction of Government had been obtained and the committal inquiry really commenced. The objection taken at the time of the bail application was to the prosecution going on without the sanction of Government. It was never suggested that it could not go on after that sanction had been obtained without a fresh complaint on a fresh verification. If the point had been taken the technical omission could have been remedied at once. If any authority is needed as to the application of Section 532 in a case of this kind, it may be found in Queen-Empress v. A. Morton and Moorteza Ali I.L.R. (1884) Bom. 288 F.B. and Queen-Empress v. Bal Gangadhar Tilak I.L.R. (1897) Bom. 112.

5. Lastly, Mr. O'Gorman suggested that the sanction was bad because it was not addressed to any particular Court or officer. This argument is based upon the second clause of Section 197 which says that Government may determine the person by whom, the manner in which, the offence or offences for which, the prosecution is to be conducted, and may specify the Court before which the trial is to be held. There is nothing in the section which in my opinion requires that the sanction should be addressed to any particular Court or officer or that orders under the second part of the section should necessarily be passed in every case. It is conceded that in this respect the sanction issued by Government follows the ordinary form and no authority has been cited for the view at anything more is required by the law. I hold, therefore, that the preliminary legal objections are not sustainable.

6. [The judgment then dealt with the merits of the case, and confirmed the conviction and sentence passed on accused No. 1.]

N.J. Wadia, J.

7. I agree.


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