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Chhoti Vs. Khacheru - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in(1920)ILR42All649
AppellantChhoti
RespondentKhacheru
Excerpt:
criminal procedure code, section 195, clauses (6) and (7); sections 5, 12, 40 - sanction to prosecute--application under section 195(6) not an appeal--no revision intended after order passed under section 195(6)--jurisdiction to (grant sanction not ousted by transfer of magistrate from one sub-division to another in the same district. - - it was argued that the words 'any of the powers conferred on a court on appeal by section 195' clearly lead to the opposite conclusion......cognate application filed on the same day. on the 21st of november, 1919, the court of the first class magistrate, meerut, accorded sanction as applied for. it was brought to his notice that the sanction, so it was contended, should have been applied for from another magistrate. in connection with this, in his order granting sanction he writes: 'it was just yesterday, 20th of november, i was relieved of the charge of the sub division of sardhana and placed in charge of the subdivision of hapur.' the learned magistrate referred counsel to the ruling of dalip singh v. nawal (1917) i.l.r. 39 all, 297, which he appears to have found in what he describes as criminal law journal, vol. 18, page 303. chhoti then went to the sessions judge of meerut and applied under the provisions of section.....
Judgment:

George Knox, J.

1. Khacheru presented an application to the court of Mr. Nathu Ram, a Magistrate of the First Class of Meerut, asking for sanction to prosecute Musammat Chhoti for an offence under Section 211 of the Indian Penal Code, on the 28th of October, 1919. The exact section is not given in this application, but it appears in the cognate application filed on the same day. On the 21st of November, 1919, the court of the First Class Magistrate, Meerut, accorded sanction as applied for. It was brought to his notice that the sanction, so it was contended, should have been applied for from another Magistrate. In connection with this, in his order granting sanction he writes: 'It was just yesterday, 20th of November, I was relieved of the charge of the sub division of Sardhana and placed in charge of the subdivision of Hapur.' The learned Magistrate referred counsel to the ruling of Dalip Singh v. Nawal (1917) I.L.R. 39 All, 297, which he appears to have found in what he describes as Criminal Law Journal, vol. 18, page 303. Chhoti then went to the Sessions Judge of Meerut and applied under the provisions of Section 195 of the Code of Criminal Procedure that the order, dated the 21st of November, 1919, might be set aside because the sanction had not been properly granted. The petition is headed as an appeal. This is a mistake. I am aware that a learned Judge of this Court in Bhadesar Tiwari v. Kamta Prasad (1912) I.L.R. 85 All. 90 has laid down that proceedings of this kind should be registered as appeals. But, with all due respect, it must be remembered that an appeal can only lie from an order when provided by the Code of Criminal Procedure or by any other law for the time being in force. No suggestion had been made that ' any other law ' has provided an appeal in this class of cases. We are thrown back upon the Code. The chapter in the Code of Criminal Procedure which deals with appeals is Chapter XXXI, and nowhere within the bounds of that chapter has an appeal been provided from an order pasaed by a Criminal Court under Section 195.

2. It is true that in Section 195, Clause (6), a sanction given may be revoked by any authority to which the authority giving it is subordinate. Clause (7) lays down that for the purpose of this section every court should be deemed to be subordinate only to the court to which appeals from the former courts ordinarily lie. The word ' only' contained in this clause is an important limitation and cannot be overlooked. It would be obviously incorrect to say that Section 195, Clauses (6) or (7), creates an appeal from the Criminal Court giving sanction. I have dealt with this matter fully in Salig Ram v. Ramji Lal (1906) I.L.R. 28 All. 554. The other learned Judges who were members of the Full Bench in which this decision was given did not dissent and may be taken to have agreed with the view taken by me, and I have had no reason since to be doubtful that the view which I then took was other than the right view.. The Calcutta High Court in Ramadhin Bania v. Sewbalak Singh (1910) I.L.R. 87 Calc. 714 and again in Hari Mandal v. Keshab Chandra Mana (1912) I.L.R. 40 Calc.87, had held that an appli cation under Section 195, Clause (6), to the superior court is not an appeal. In this Court a learned Judge held that the right conferred by the sixth clause of Section 195 is not exactly a right of appeal but is strongly analogous to such right, Mam Raja Bat v. Sheo Dayal (1915) I.L.R. 37 All. 489. The learned Judge of Meerut had ground for dealing with the application as though it were an application in revision, but passed upon it only the order ' Rejected.' Now in more than one case this Court has pointed out that an order of this kind is not sufficient) and should not have been made and the learned Sessions Judge should bear this in mind and not content himself with writing merely the word 'Rejected.' The Magistrate, however, was thoroughly cognizant of the facts of the case and has gone very fully into them in his judgment.

3. Musammat Chhoti has come here in revision. The grounds set; out are (1) that the learned Magistrate who gave sanction had ceased to be the Sub-Divisional Magistrate of Sardhana on the date he granted sanction and the matter should have been dealt with by his successor; (2) that the learned Magistrate should not have granted sanction under the circumstances of this case; (3) the judgment of the learned Sessions Judge is not in accordance with law. All these grounds are in my opinion entitled to little or no weight. As regards the third I have pointed out above. As regards the second ground I hold, after careful consideration, that this Court has no authority to revoke or to grant sanction in this case. The court of the First Class Magistrate of Meerut is not, in the words of Section 195, subordinate to this Court. Appeals from courts of First Class Magistrates do not ordinarily lie to this Court. I was referred to the words used in Section 439 of the Code of Criminal Procedure. It was argued that the words ' any of the powers conferred on a court on appeal by Section 195' clearly lead to the opposite conclusion. There may be cases in which this Court would have such authority. As for instance, if sanction had been given by the Sessions Judge of Meerut and this Court held that the sanction was not for any reason expedient or regular, it could acting under Section 439 in exercise of the power granted by Section 195, revoke that sanction. But it does not follow that because it can exercise this power under one set of circumstances it can exercise that power when such exercise would be in defiance of the limitation prescribed by Clause (7) of Section 195.

4. The question raised in ground No. 1 remains to be considered. The plea is that the Magistrate having been relieved of the charge of Sardhana could not pass the order he did. In this plea a ' Sub-divisional ' Magistrate is spoken of as a court. Section 5 of the Code of Criminal Procedure shows that under that Code there are only five classes of Criminal Courts in British India. The ' Sub-divisional Magistrate ' is not entered as being one of those five classes of courts. The court in this case was the court of a Magistrate of the First Class of Meerut, and by Section 12 the local area of Sardhana was defined as the local area within which that First Class Magistrate might exercise all or any of the powers with which he was invested under the Code. But, except as otherwise provided by such' definition, the jurisdiction and power of the First Class Magistrate extended throughout the district of Meerut. See Section 12, Clause (2). The mere fact that Mr. Nathu Ram was relieved of the charge of the local area or Tahsil of Sardhana did not take away from him the jurisdiction and power of granting sanction under Section 195. I had occasion to deal with this point in Mithani v. King Emperor (1912)9 A.L.J. 448 and in that case I held that the contention that all cases pending on a file of a Magistrate who had been relieved of the charge of a sub-division did not necessarily pass automatically into the hands of his successor merely because the former had been transferred to another local area in the same district. I then pointed out that such procedure was obviously inconvenient and that Section 12 of the Code of Criminal Procedure did not lay down any such automatic rule. To hold otherwise would be to overlook the provisions of Section 40 of the Code of Criminal Procedure. The present case was not the case of an officer transferred from the district of Meerut to another district. Furthermore, to grant sanction was inherent in him as a court of a Magistrate of a First Class. It was not a power with which he had to be specially invested and by both Section 12 and Section 40 his powers continued although he was relieved of the sub-division of Sardhana and placed in charge of the sub-division of Hapur. The language of his order shows that the application for sanction was instituted in his court long before he was relieved of the charge of Sardhana; it was pending and had been pending for some time. I hold that he was under the circumstances fully empowered to pass the order he did. I was referred to the case of Empress of India v. Anand Sarup (1831) I.L.R. 3 All. 563, but in that case the Magistrate was under transfer from the original district in which he was to another and different district. The case of Shaik Fahrudin (1884) I.L.R. 9 Bom. 40, is also not in point and can be at once distinguished and is no authority in the present case.

5. Over and above all this, granting sanction is not the trial or punishment of the offence charged. To make such a proceeding drag through several courts is a mistake and in my opinion the Procedure Code has very properly confined this matter to two courts and two courts only, the court applied to and that court to which it is immediately subordinate.

6. I fully agree with what was laid down in Mata Prasad v. Baran Barhai (1914) I.L.R. 36 All. 469. It is true that, that was a case in which a Civil Court had granted sanction, but the underlying principle is the same and I am quite prepared to extend it to cases in which sanction was granted by a Criminal Court.

7. On every ground I dismiss the application. As the six months during which the sanction can remain in force expires to-day, under Section 195, Clause (6), I extend the time up to the 30th of June, 1920.


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