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Kurichetti Venkatasubbayya Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in49Ind.Cas.492
AppellantKurichetti Venkatasubbayya
RespondentEmperor
Cases ReferredAiyakannu Pillai v. Emperor
Excerpt:
criminal procedure code( act v of 1898), section 476 - successor of officer initiating proceedings, competency of, to direct prosecution-order reserved--issue, of fresh notice to party by successor--institution of proceedings de novo, legality of--long pendency of proceedings--right of party aggrieved to revocation of sanction. - .....of the note was altered, dismissed the suit. on the date of dismissal, 5th february 1917, the district munsif instituted proceedings under section 476 of the criminal procedure-code. he took evidence and reserved passing orders, but did not pass any orders though the enquiry was closed on 6th september 1917. he handed charge to his successor on 1st february 1918 and order was passed on the 2nd march 1918 directing petitioner's prosecution.2. various objections have been taken to the legality of the order. the first is that the successor of the munsif who passed orders had no jurisdiction to do so. there is nothing in the criminal procedure code limiting the power to direct prosecution under section 476 to the officer who disposes of the case. as pointed out in runga ayyar v. emperor.....
Judgment:
ORDER

Kumaraswami Sastri, J.

1. The plaintiff (petitioner) filed a suit on a promissory note. He got an ex parte decree which was set aside. He did not proceed with the suit and the District Munsif, on the plea of the defendant that the endorsement of payment was a forgery and that the amount of the note was altered, dismissed the suit. On the date of dismissal, 5th February 1917, the District Munsif instituted proceedings under Section 476 of the Criminal Procedure-Code. He took evidence and reserved passing orders, but did not pass any orders though the enquiry was closed on 6th September 1917. He handed charge to his successor on 1st February 1918 and order was passed on the 2nd March 1918 directing petitioner's prosecution.

2. Various objections have been taken to the legality of the order. The first is that the successor of the Munsif who passed orders had no jurisdiction to do so. There is nothing in the Criminal procedure Code limiting the power to direct prosecution under Section 476 to the officer who disposes of the case. As pointed out in Runga Ayyar v. Emperor 4 Cr.L.J. 175 where a similar objection was taken,, the power to act under Section 47d is given to the Court and not to the individual officer presiding over it. In Rati Jha v. Emperor 16 C.W.N. 623 : 16 C.L.J. 509 it was held that a sanction granted by the successor-in-office of the Judge or Magistrate before whom the offence was committed was valid. Reference, has been made by Mr. Chenchiah to Begu Singh v. Emperor 5 C.L.J. 508 where a Full Bench of the Calcutta High Court held that the powers conferred by Section 476 can only be exercised by the Judge who tries the case. This decision has been dissented from by the Bombay High Court in Lakshmidas Lalji, In re 10 Bom L.R. 23 and is opposed to the ruling of the Madras High Court in Runga Ayyar v. Emperor 4 Cri.L.J. 175, which I sitting as a single Judge am- bound to follow. It has been next contended that, as the Munsif who instituted proceedings under Section 47(5 closed the case without passing orders and as his successor re-opened proceedings by issuing fresh notices to the parties, the latter must be deemed to have instituted proceedings de novo in February 1918. Reliance has been placed on Aiyakannu Pillai v. Emperor 1 Ind. Cas. 597 to show that the proceedings taken by the succeeding District Munsif are invalid, All that was decided in that case was that the powers conferred by Section 476 can be exercised by the Court 'only in the course of the judicial proceeding or at its conclusion or so shortly thereafter as to make it really the continuation of the same proceeding in the course of which the offence is committed.' It is no authority for the proposition that if proceedings are commenced so as to satisfy the above requirements, sanction will be invalid if there is unreasonable delay in the passing of final orders. In the present case the delay by the District Munsif who initiated proceedings is Very great and, if I may say so, inexcusable but I do not see how the proceedings can be void for that reason. It is, of course, open to the petitioner to prove that he has been prejudiced by the delay and that sanction ought to be revoked on that ground, as it seems to me a scandal that proceedings under Section 476 should have been pending against petitioner from 5th February 1917 to the 2nd March 1918.

3. Mr. Chenchiah states that an important witness has been gained over by the defendant and it appears from the affidavit of the Pleader who appears for the petitioner in the lower Court that this is so. Having regard to the long delay I am of opinion that it is not in the interests of justice that proceedings under Section 476 should be taken.

4. I, therefore, set aside the order.


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