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Gangadharabhatla Satyanarayana of Yeleswaram Vs. Mudi Narayanswami of Yeleswaram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 418 of 1959 and Criminal Revn. Petn. No. 363 of 1959
Judge
Reported inAIR1961AP18
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 369, 435 and 439; Madras Village Panchayats Act, 1950 - Sections 28, 42, 48, 49, 106, 127 and 127(1)
AppellantGangadharabhatla Satyanarayana of Yeleswaram
RespondentMudi Narayanswami of Yeleswaram
Appellant AdvocateK. Srinivasa Murthy, ;K. Raghava Rao and ;I. Panduranga Rao, Advs.;A. Suryachandra Rao, Adv. for ;Public Prosecutor
Respondent AdvocateK. Ramachandra Rao, Adv.
DispositionPetition allowed
Excerpt:
.....for default was a mere order and not a 'judgment' within the meaning of section 369 of the code of criminal procedure and hence the bar in the section against a review would not apply to an order dismissing the matter for default. the order dismissing the appeal or criminal revision summarily or in limine, would no doubt be a final order of the high court not subject to review, or a revision even by the high court itself, but would not tantamount to a judgment, replacing that, of the lower court'.without having to consider and decide as to whether the high court has power to review its own order made in default, i see no objection to the maintainability of a second petition when the first one had failed not on the merits, but by default. which embodies the well known doctrine of..........judgment of this court, and that power of review had been expressly excluded by section 369 of the code of criminal procedure. in support of his contention, mr. ramachandrarao relied on the decisions in ranga rao v. emperor, 23 mad lj 371; n. appayya v. d. venkatappayya, 44 mad lj 27: (air 1923 mad 276(1)); in re tadi somu naidu, 46 mad lj 456 : (air 1924 mad 640) and raj mallaiah v. n. narasayya, 1959 andh lt 227. in 23 mad lj 371 it was held by a division bench of the madras high court that it was not competent to the high court to restore to its file a criminal revision petition dismissed for default. as the question that arises in the present revision petition is not whether an application dismissed for default could be restored to file, this decision is not helpful in deciding that.....
Judgment:
ORDER

Sanjeeva Row Nayudu, J.

1. This revision petition is directed against the order of the Additional District Munsif Magistrate, Kakinada, made in C. C. No. 297 of 1956 rejecting the preliminary objection taken by the petitioner before him as to the maintainability of the prosecution in that case.

2. The facts out of which this revision petition has arisen may be briefly stated; The petitioner was a member of the Panchayat Board, Yeleswaram in East Godavari District. He was appointed as temporary President for the purpose of conducting a meeting of the Panchayat Board in order to effect the co-option of a woman member to the Panchayat Board. This meeting was conducted on 11-7-1956. At that meeting one Nookamma was co-opted as the woman member. The respondent in this revision petition filed a Writ Petition in the High Court against the co-option, which was dismissed on the ground that an alternative remedy by way of an election petition lay.

Later the respondent filed an election petition questioning the co-option. While doing so he also prayed for the condonation of delay in tiling the election petition, as apparently it was not filed within the time prescribed by law. The delay was, however, condoned without notice to the affected parties.

3. A Division Bench of this court issued a writ of prohibition directing the District Munsif before whom the election petition was pending not to proceed with it and the writ was made absolute by a decision reported in Gangadharabhatla Satyanarayana v. M. Narayanaswami, : AIR1959AP28 . The respondent thereupon filed a complaint against the present petitioner under Sections 167 and 468 of the Indian Penal Code, alleging that the petitioner, who was a public servant, made false documents and was guilty of forgery. These very contentions were raised in both the writ matters and also in the election petition.

In Writ Appeal No. 162 of 1957, the necessity of sanction was raised; but this court observed that it could be raised at the trial and need not be considered in that appeal. Accordingly, the present petitioner, against whom a prosecution was tiled in the court of the Additional District Munsif Magistrate, Kakinada under Sections 167 and 468 of the Indian Penal Code, raised the objection that the prosecution is bad for want of sanction. The actual position is that the Inspector-General of Local Administration, claiming that the power to give sanction under Section 106 of the Madras Village Panchayats Act, hereinafter referred to as the Act, had been delegated to him, gave sanction to the present respondent, to prosecute the present petitioner.

It is not disputed that a similar Criminal Revision Petition had been previously preferred by the present petitioner viz., Criminal Revision Case No. 32 of 1959, and that the same was dismissed for default. This petition was in fact dismissed for default although the endorsement thereon read 'No grounds for interference in revision are made out. This petition is dismissed'. Subsequent to this, Criminal Miscellaneous Petition No. 320 of 1959 was filed by the petitioner to restore the said Criminal Revision Petition to file, and to dispose of the same on the merits. This petition was disposed of by an order of this Court made on 13-3-1959 wherein my learned brother, Krishnarao, J. ordered as follows:

'As the petitioner's learned counsel did not request anybody present in the Court to move for time on his behalf, I see no reason to condone his absence or to set aside the dismissal for default. Of course, the Revision Petition was dismissed only for default, and not on merits. The sentence in my order 'no grounds for interference in revision are made out' is merely consequential and means that there was default by the petitioner's counsel. The order of dismissal will not preclude the petitioner from filing another revision, if it is in time'.

4. It is in pursuance of this order that the present Revision Petition had been preferred by the petitioner and it is not disputed that it is in time. At the outset, Mr. K. Ramachandrarao, the learned counsel for the respondent, raised a preliminary objection to the maintainability of this Criminal Revision Petition. He contends that the order of dismissal for default operates as a 'judgment' under Section 369 Cr. P. C. and bars the filing of a fresh petition, as the consideration of the same matter in a fresh petition would amount to the reviewing of a previous judgment of this court, and that power of review had been expressly excluded by Section 369 of the Code of Criminal Procedure.

In support of his contention, Mr. Ramachandrarao relied on the decisions in Ranga Rao v. Emperor, 23 Mad LJ 371; N. Appayya v. D. Venkatappayya, 44 Mad LJ 27: (AIR 1923 Mad 276(1)); In re Tadi Somu Naidu, 46 Mad LJ 456 : (AIR 1924 Mad 640) and Raj Mallaiah v. N. Narasayya, 1959 Andh LT 227. In 23 Mad LJ 371 it was held by a Division Bench of the Madras High Court that it was not competent to the High Court to restore to its file a Criminal Revision Petition dismissed for default.

As the question that arises in the present Revision Petition is not whether an application dismissed for default could be restored to file, this decision is not helpful in deciding that issue. In 44 Mad LJ 27: (AIR 1923 Mad 276(1)). Justice Wallace sitting singly took the view that once a criminal revision case had been dismissed for default of payment of printing charges, it is not competent to the High Court to rehear the case or entertain a fresh application for revision. The learned Judge quoted and followed the decision in 23 Mad LJ 371. It was further observed in that decision as follows:

'It is a universal principle of law in the absence of direct statutory provision, that when a matter has been finally disposed of by a court, the court is functus officio and cannot entertain a fresh prayer for the same relief, unless and until the previous order of final disposal has been set aside'.

Having thus observed and having held that the decision in 23 Mad LJ 371 precluded the setting aside of the previous order, the learned Judge dismissed the petition. I must express my respectful dissent from the observations of the learned Judge quoted above. A Court will become functus officio in any matter when its judicial power had been exhausted by a previous decision of the same court. As regards the exercise of criminal revisional jurisdiction by the High Court, it is common knowledge that quite often the High Court acts suo motu and such action by the High Court is neither dependent on nor is precluded by the action of a private party in unsuccessfully pursuing a Criminal Revision Petition, e.g., a Criminal Revision Petition might be filed and the petitioner, who, thereafter, colluding with the opposite) side might allow it to go for default.

Nevertheless, it is open to the High Court ii the interests of justice demand the taking of such a course, to act suo motu, and secure justice in the matter. There is therefore no question of the High Court becoming functus officio by reason of an order of dismissal for default passed by it on a petition by a private party, who has really no right but a mere concession in the matter of moving tin's court in revision. 40 Mad LJ 456: (AIR 1924 Mad 640) is a case where a High Court acting under Section 439 of the Code of Criminal Procedure enhanced the sentence passed by the lower court on the accused, without giving him a reasonable opportunity to be heard, and it was held in that decision that the action of the High Court was without jurisdiction and its order was void ab initio.

This decision has no direct application to the point at issue. The decision in 1959 Andh LT 227 is a judgment of my learned brother, Srinivasachari, J., wherein, it was held that a restoration petition where a criminal revision had been dismissed for default, would not lie against that order. This decision again does not touch the point for determination in this case.

5. It is contended by the learned counsel for the petitioner, Mr. K. Srinivasamurthy, that an order of dismissal is not a 'judgment' within the meaning of Section 369 of the Code of Criminal Procedure. His point is, that judgment is a judicial decision which a court arrives at after hearing the case, considering the evidence And the arguments advanced for and against, on the merits. He points out that by no stretch of language could an order of dismissal be construed or considerd as a judgment of a Court of Law within the meaning of Section 369 of the Code at Criminal Procedure.

It is true the matter would assume a different complexion under the Code of Civil Procedure where the expression 'judgment' is defined. In this connection, Mr. Srinivasamurthy relied on the decisions in Damu Senapati v. Sridiiar Rajwar, ILR 21 Cal 121 (F. B-); Ibrahim v. Emperor, AIR 1928 Rang 288; Uauiautar Thakur v. State of Bihar, : AIR1957Pat33 and U. J. S. Chopra v. State of Bombay, (S) : 1955CriLJ1410 . In the Calcutta case, it was clearly laid down that an order dismissing a petition for default was a mere order and not a 'judgment' within the meaning of Section 369 of the Code of Criminal Procedure and hence the bar in the section against a review would not apply to an order dismissing the matter for default. The following observations am apposite;

'As I understand a 'judgment', it means the expression of the opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments'.

In AIR 1928 Rane 288 it was held that a judgment contemplated by Section 369 is only a decision on the merits and that a dismissal for default of appearance, therefore, is not a 'judgment', and the High Court has power to review a dismissal order for default of appearance passed in its appellate jurisdiction. In AIR 1937 Pat 33, their Lordships of the Patna High Court had to consider the question whether the order of dismissal for default is a 'judgment' and following the case in AIR 1928 Rang 288 quoted above, and also the observations of Sulaiman J. in Dr. Hori Ram Singh v. Emperor, AIR 1939 FC 43 held it was not, The following observations of the Supreme Court in (S) : 1955CriLJ1410 were relied on :

'It will be seen that an order under Section 435 can with difficulty be called a judgment. All that a Judge does at this preliminary stage is either to send for the records of the lower court with a view to examining them under Section 439(1) or to refuse to do so'.

Lower down their Lordships observed:

'The order dismissing the appeal or criminal revision summarily or in limine, would no doubt be a final order of the High Court not subject to review, or a revision even by the High Court itself, but would not tantamount to a judgment, replacing that, of the lower court'.

Without having to consider and decide as to whether the High Court has power to review its own order made in default, I see no objection to the maintainability of a second petition when the first one had failed not on the merits, but by default. In the Code of Civil Procedure we have Section 11 which bars a second proceeding in respect of the same matter when the first proceeding had been finally disposed of one way or the other.

It is because of this bar of res judicata, that ap-piopriate provisions are included in the Code of Civil Procedure to provide for certain contingencies, such as the setting aside of an order of dismissal for default, or a decree passed ex parte. Hence we find Order 1 Rule 9 and Order IX Rule 13 C.P.C. providing for applications being made by aggrieved persons. There is again Section 115 and Order XLVII C.P.C. which provides for a review of judgment where, either no appeal is available or where the remedy by way of an appeal, had not been resorted to, whereas under the Code of Criminal Procedure we do not have a, section similar to Section 11 of the Code of Civil Procedure.

The only section which has the effect of barring the subsequent proceedings, is Section 403 Cr. P. C. which embodies the well known doctrine of autre fois acquit and autre fois convict, and lays down that no person shall be tried on the same facts and in respect of the same matter, when once he has been tried and acquitted or convicted. It may be seen that Section 403, therefore, applies to a conviction or acquittal. It has no application to a matter which might properly arise in the revisional jurisdiction of the High Court under the provisions of the Code of Criminal Procedure, as in the present case.

Similarly, the bar under Section 369, as already pointed out, is applicable only to cases where there has been a 'judgment' within the meaning of the Code. On a consideration of the provisions of the Code of Criminal Procedure, I am satisfied that there is no provision therein which bars a subsequent proceeding except the sections pointed out above. Hence, when a matter is disposed of by reason of default, there should be no objection to a re-entertainment of a second application for the same relief. In any event, the order of my learned brother Krishna Rao, J., expressly permitted the petitioner to tile this Criminal Revision Petition and that order could at least be equated in law to an action taken by this Court suo motu in exercise of the revisional jurisdiction. In any view of the matter, I have no difficulty in holding that this revision petition is maintainable. (6) The next question that remains to be considered is, whether the sanction for the prosecution in this case is valid, and if not, what orders have to be passed in consequence. In this case the petitioner was a member of the Panchayat Board, and at the relevant time he was acting as the President of the Panchayat Board. Whether in bis capacity as a member or in his capacity as a President, any act done by him which is sought to be made the subject matter of a criminal prosecution should be covered by a sanction issued by the Government under Section 106 of the Act which is as follows:

'When the President, Executive Officer or any member is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no court shall take cognizance of such offence, except with the previous sanction of the Government'.

Since the subject-matter of the present prosecution arises directly within the sphere of duty of the petitioner, acting as President of the Panchayat Board, there can be no doubt that a sanction under Section 106 is required before he could be prosecuted. Mr. K. Ramachandrarao, the learned counsel for the respondent, contended to at since the act of the petitioner i.e., the subject of the complaint, was done by him during the time he was temporary President, and since he had ceased to be a temporary President on the date of the complaint, no sanction is necessary to prosecute him.

In support of this stand, he relied on a decision of the Supreme Court reported in Venkataraman v. The State, : 1958CriLJ254 , wherein it was held that although the complaint was in respect of an act done by an accused when he was holding an office, if at the time cognizance is taken of the offence he had ceased to be a public servant, the protection given to a public servant under Section 6 of the Prevention of Corruption Act would not extend to him and such a person could be prosecuted without sanction. It was therein observed that:

'If a general power to take cognizance of an offence is vested jn a Court, any prohibition to the exercise of that power, by any provision of law, must be confined to the terms of the prohibition. In enacting a law prohibiting the taking of cognizance of an offence by a Court, unless certain conditions were complied with, the legislature does not purport to condone the offence. It is primarily concerned to see that prosecution for offences in cases covered by the prohibition shall not commence without complying with the conditions contained therein, such as a previous sanction of a competent authority in the case of a public servant of the authority or the party interested in the prosecution or aggrieved by the offence'.

Lower down we find the following observation:

'Where therefore the accused have ceased to be a public servant at the time the court takes cognizance of the offences alleged to have been committed by them as public servants, the provisions of Section 6 do not apply and the prosecution against them is not vitiated by the lack of a previous sanction by a competent authority.'

In that case the scope and applicability of Section 6 of the Prevention of Corruption Act arose for consideration. This decision could hardly have any application to the present case having regard to the fact that the petitioner was a public servant at the time the alleged offences had been committed by him as well also at the time when the case was sought to be taken cognizance of. It is true in the former case he was a member of the Panchayat temporarily appointed as President to perform certain duties, and in the second instance he was merely a member of the Panchayat Board.

But the mere fact that he had shed the temporary cloak of Presidentship does not make any difference in this case, as there is as much protection to a member of the Panchayat Board as to a President under Section 106 of the Act. It is true that on principle the Supreme Court's decision quoted above would have been applicable to the present case had the petitioner ceased even to be a member of the Panchayat Board and thus ceased to be entitled to the protection under Section 106 at the time the cognizance was taken.

7. I am therefore clearly of opinion that any prosecution against the petitioner for what he did in the performance of his official functions requires sanction under Section 106 of the Act.

8. The next question to consider is whether the sanction should be given by the Government or whether it could be given by any person other than the Government to whom the Government had delegated the power under Section 127 of the Act. The relevant portion of Section 127 of the Act is as follows :

'(1) The Government may, by notification, authorize any authority, officer or person to exercise in any local area, in regard to any panchayat or any class of panchayats or all panchayats in that area, any of the powers vested in them by this Act except the power to make rules; and may in like manner withdraw such authority. x x x x x'

It is contended by Mr. K. Ramachandrarao, the learned counsel for the respondent, that this section authorises the Government to delegate by notification to any officer or authority any of its powersvested by virtue of the provisions of the Act except the power of making rules. From this he contendsthat the power to give sanction under Section 106 isone of the powers contemplated by Section 127 of the Act and consequently a delegation of the authorityexercisable by the Government under Section 106 byvirtue of Section 127 in favour of the Inspector-Generalof Local Administration is a valid delegation and the latter is empowered to issue the sanction for the present prosecution, and since a sanction has infact been issued by the said Inspector-General ofLocal Administration, there could be no objectionto the Court taking cognizance of the offences alleged in the complaint, in any event.

9. In arriving at a conclusion on the question in issue, it is necessary to examine the basis of anologous provisions occurring in enactments, which require the sanction of a competent authority as a condition precedent to courts of law taking cognizance of the offences alleged against the persons concerned in the discharge of their official duty.

Whether we consider Section 106 of the Act or Section 197 of the Code of Criminal Procedure or Section 6 of the Prevention of Corruption Act, the underlying principle is, that public servants should not be subjected to indiscriminate prosecutions for the acts committed by them in the discharge of their official functions.

For that reason the Legislature interposed between the complaint and the cognizance, that is taking cognizance of the complaint, the appropriate authority's exercise of judgment in deciding whether it is necessary and expedient in the interests of justice, and in the interests of public administration, that the prosecution should be allowed to commence. So that, in deciding whether sanction should be given or not in any particular case, the appropriate authority empowered to give the sanction, has got to apply its mind to all the facts of the case and arrive at a conclusion: firstly, whether there is a prima facie case to go on with against the public servant, and secondly, if so, whether in the particular facts of the case, it is expedient to prosecute the public servant concerned; and this decision has got to be reached on a full and fair consideration of the facts and circumstances of the case.

This being the procedure that had to be followed in the matter of giving sanction, it would be for consideration whether such a procedure which is more or less quasi-judicial in character, calculated expressly for the benefit of and so as to serve as a protection to the public servant concerned, could be delegated in the manner in which ordinary exercise of administrative powers could be delegated.

Apart from a consideration of Section 127 of the Act. I am clearly of opinion that a power of this description and which involves the performance of a serious duty by way of reaching a decision on the merits of the case, cannot be delegated to any authority other than the authorities specified as the authority which could give the sanction, unless the legislative provision which requires sanction being given, also provides for such delegation, and specified the authority to whom the delegation could be made. Otherwise the protection given under this Section would become illusory and in practice would be reduced to practically no protection at all. That could hardly have been the intention of the legislature in enacting such and similar provisions as are contained in Section 106. It has never been claimed or contended either under Section 197 of the Code of Criminal Procedure or under Section 6 of the Prevention of Corruption Act that any authority other than the authority specified in the section could give sanction under those sections.

10. The same conclusion could be reached on a consideration of Section 127 of the Act which is supposed to give the authority to delegate to the State Government. A perusal of Clause (1) of Section 127 shows that the authorisation could be made to any authority, to any officer or to any person, which means a person who is not an officer. It is not understood how any person who is not even an officer of Government could ever be competent to arrive at a responsible decision which is involved in the matter of granting or refusing to grant the sanction to prosecute as public officer.

It is for this reason that Mr. Srinivasamurthy contends that what Section 127 contemplates is the mere delegation of the powers exercisable by the Government under Sees. 28, 42, 48 and 49, which expressly deal with the powers of the Government the exercise whereof did not involve in particular the performance of any duty. In my opinion, the delegation contemplated under Section 127(1) having regard to the particular wording employed in the Section, purely relates to the powers exercisable as such in the above enumerated sections in regard to a panchayat or panchayats and which are of a purely administrative character, and involved no judicial or quasi-judicial decision to be taken. In either view of the matter therefore, I am clearly of opinion that it was not competent for the Government to delegate its powers and duties of giving sanction under Section 106 of the Act, to either the Inspector-General of Local Administration or to any other authority, officer or person by virtue of Section 127(1) of the Act.

11. In the view I have taken therefore, the delegation of the power to give sanction under Section 106 of the Act is illegal and beyond the powers of the Government, and the sanction is therefore invalid. The Government and the Government alone could give the sanction under Section 106 of the Act.

12. In this view it is unnecessary to go into the question whether the sanction given by the Inspector-General of Local Administration is in conformity with law and other allied contentions raised by Mr. Srinivasamurty in that connection. But since the form of the sanction itself has been placed before me, it would be necessary to decide whether a sanction of that character, even on an assumption that the authority issuing the sanction is competent to give the same, could be regarded as valid. The relevant portion of the sanction in this case reads as follows:

'....... The Inspector-General of Local Administration under Section 106 of the said Act hereby accords permission to Sri M. Narasimhaswami of Yeleswaram to prosecute Sri G. Satyanarayana, Ex-Temporary President and now member of the Yeleswaram Panchayat of East Godavari District''.

13. It may be seen from this, that a carte blanche is given to Sri Narasimhaswami to prosecute the petitioner. The sanction does not contain to what offence the sanction related, and under what section of the Penal Code and in which court the prosecution has to be launched, The absence of these material factors clearly vitiates the sanction, because such a sanction involves a further delegation or what is more appropriate the abandonment of the jurisdiction of the sanctioning authority in favour of the complainant, who would by reason of the vagueness of the sanction be entitled to choose any sections of I.P.C. he liked, and any offences, and file it in any court suiting his convenience.

Such certainly could not have been in the contemplation of the legislature when they seriously enacted Section 106 of the Act. It has been repeatedly laid down by various High Courts as well as by the Supreme Court that a sanction should itself on the face of it show that the sanctioning authority had considered all the materials of the case and had arrived at a tentative decision to give the permission to prosecute, on a careful consideration of those materials. In fact the sanctioning authority should arrive at a tentative conclusion in his own mind as already indicated that a certain offence is prima facie established on the materials placed before him, and it is in respect of that offence and that offence alone, that the sanction could issue.

14. I am therefore clearly of opinion that even on an assumption that the Inspector-General of Local Administration is competent to give the sanction, the sanction in this case is so vague that it could not be regarded as a valid sanction at all in the eye of law.

15. In the result, this criminal revision petition is allowed. The proceedings taken in pursuance of the complaint filed by the respondent of which no valid cognizance could have been taken by the court below, are quashed.


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