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In Re: P. Varadarajulu Naidu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in51Ind.Cas.343; (1919)36MLJ64
AppellantIn Re: P. Varadarajulu Naidu
Cases ReferredChidambaram Pillai v. Emperor I.L.R.
Excerpt:
- - was a perfectly valid authority. now, though the complaint must undoubtedly contain the article complained of to give information to the accused of the charge against him, there is nothing in the code to show that the written order to make the complaint if written order is required, must specify the exact article in respect of which the complaint is to be made. these two cases seem to me clearly to indicate that this section must not be construed with the strictness of an enabling section, but as being a disenabling section must be read simply as requiring the specific authority of government for institution of the proceedings and nothing more......a point which does not arise here and the latter a question under section 197, criminal procedure code, the language of which is entirely different from section 196. i would therefore dismiss this petition.napier, j.2. i agree. i only wish to add a few words on what i conceive to be the scope of section 196 of the criminal procedure code. mr. k. srinivasa aiyangar invited our attention to the language used by the learned judges in barindra kumar ghose v. emperor i.l.r. (1907) c. 467 it appears to me, that they treated section 196 as an enabling section. with the greatest deference i entirely differ. section 196 is not an enabling section. it is a disenabling section. the enabling section is section 190. section 190 provides that a magistrate may take cognizance of any offence (a) upon.....
Judgment:
ORDER

Phillips, J.

1. The only point argued before us among the many objections taken in the revision petition, is that the complaint was filed without the authority of Government. A telegram was sent by Government to the District Magistrate (Ex. A) and it expressly authorised the Public Prosecutor to file a complaint against Varadarajulu Naidu under Section 124-A, Indian Penal Code. It further authorises him to act immediately if the District Magistrate thinks it advisable after consulting him, and this consultation does not refer as suggested by Mr. Srinivasa Aiyangar to the actual filing of the complaint. The last sentence of the telegram enjoins the District Magistrate to submit the complaint prepared ' for issue of supplemental sanction.' It is contended that these words modify the previous portion of the order and render the authority invalid. I, however, agree with the Sub-Divisional Magistrate that this last sentence must be read apart from the rest of the order, and does not intend to refer back to the first portion of the telegram or to limit the authority given. The words 'issue of' strengthen me in this view for if Government intended that no action should be taken until the complaint had been sanctioned those unnecessary words would not have been inserted in the telegram. Chidambaram Pillai v. Emperor I.L.R. (1908) M. 3 : 19 M.L.J. 81 is authority for the proposition that the actual words of the complaint need not be authorised by Government. I have therefore no doubt but that the authority given by Government in Ex. A. was a perfectly valid authority. In view of the above, it is unnecessary to deal with the two cases cited, i.e., Barindra Kumar Ghose v. Emperor I.L.R. (1907) C. 467 and Queen Empress v. Samavier I.L.R. (1892) . M. 468 the former which decided a point which does not arise here and the latter a question under Section 197, Criminal Procedure Code, the language of which is entirely different from Section 196. I would therefore dismiss this petition.

Napier, J.

2. I agree. I only wish to add a few words on what I conceive to be the scope of Section 196 of the Criminal Procedure Code. Mr. K. Srinivasa Aiyangar invited our attention to the language used by the learned Judges in Barindra Kumar Ghose v. Emperor I.L.R. (1907) C. 467 It appears to me, that they treated Section 196 as an enabling section. With the greatest deference I entirely differ. Section 196 is not an enabling section. It is a disenabling section. The enabling section is Section 190. Section 190 provides that a Magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police-report of such facts; and (c) upon information received otherwise or from his own knowledge. Then there are Sections 195, 196 and 197 which limit the power of a Magistrate to take cognizance in this general manner. What the code does is to provide that any person who has knowledge of an offence being committed can set the Criminal Court in motion; but that with regard to matters dealt with in Section 196, the Criminal Court shall not be set in motion without a complaint. This provision eliminates Clauses 2 and 3 of Section 190 and further provides that the complaint shall be either by order of, or under authority from, the Governor-General in Council or the Local Government. Therefore in my opinion, the question whether this section should be read in the interest of the accused or to what extent discretion is allowed or to what extent Government is to be guided by questions of policy, have with deference to the learned Judges no bearing on the question at all. All that it requires is that whereas ordinarily anybody can give information of an offence and the proceedings then go on in the name of the Crown against the accused person, in this particular case only the Government can set the Court in motion. And it is, I think, in view of the generality of the language used in this section that this Court and the High Court of Bombay have given a wide interpretation to the section. This court, in Chidambaram Pillai v. Emperor I.L.R. (1908) M. 3 : 19 M.L.J. 81 expressly approved of the language used in Queen Empress v. Bal Gangadar Tilak I.L.R. (1897) B. 150 and that language seems to me to indicate the true manner in which the construction of this section should be approached. It is as follows : ' Now as to the question of jurisdiction, we are all of opinion without doubt that this prosecution was instituted under the authority of Government, and that to use the words of the present Code (X of 1882) this complaint was made ' by order of or under the authority of Government.' There is no special mode laid down in the code whereby the order of sanction of Government is to be conveyed to the officer who puts the law in motion. In this case the prosecution was conducted by the Government Solicitor, it was instituted by the Oriental Translator to Government, and he produced the written order of Government to institute the complaint. Now, though the complaint must undoubtedly contain the article complained of to give information to the accused of the charge against him, there is nothing in the Code to show that the written order to make the complaint if written order is required, must specify the exact article in respect of which the complaint is to be made. That appears to have been the view taken in Chidambaram Pillai v. Emperor I.L.R. (1908) M. 3 : 19 M.L.J. 81 because in that case we find the language of the order is, 'The Madras Government authorises the institution of Criminal proceedings against Chidambaram Pillai, Subramania Siva and Padmanabha Aiyangar under Sections 124 A, 153 A and 505, Indian Penal Code, in respect of speeches delivered by them at Tuticorin and Tinnevelly, in the months of February and March 1908.' So, the only thing definite in the order is the persons, the sections, and the dates within which the speeches were made. These two cases seem to me clearly to indicate that this section must not be construed with the strictness of an enabling section, but as being a disenabling section must be read simply as requiring the specific authority of Government for institution of the proceedings and nothing more.


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