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Sesha Aiyar Vs. the Public Prosecutor and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in81Ind.Cas.190
AppellantSesha Aiyar
RespondentThe Public Prosecutor and anr.
Cases ReferredNataraja Pillai v. Rangaswamy Pillai
Excerpt:
criminal procedure, code (act v of 1898), section 195, as amended by act xviii of 1923 - sanction, to prosecute granted before amendment--revocation--high court, power of. - - if a party had under the old law a right to get a sanction revoked it would have to be held that a party who had got a sanction which had been wrongly revoked or who had been refused a sanction which ought to have been given to him had equally well a right to get a sanction from the superior court.krishnan, j.1. this is an application to revoke a sanction given under section 195 of the criminal procedure code, act v of 1898, as it stood before the recent amendment; to prosecute the petitioner under sections 467 and 109, indian penal code. a preliminary objection is raised by the public prosecutor that this application does not he as under the code now in force there is no provision for any sanction to be produced for a court to take cognisance of any offence. the amending act xviii of 1923 which came into force in september 1923 has abolished the procedure of obtaining sanction and has substituted for it a complaint in writing by the court itself or by the court to which that court is subordinate. the question we have to decide is what the effect of this amendment is as to.....
Judgment:

Krishnan, J.

1. This is an application to revoke a sanction given under Section 195 of the Criminal Procedure Code, Act V of 1898, as it stood before the recent amendment; to prosecute the petitioner under Sections 467 and 109, Indian Penal Code. A preliminary objection is raised by the Public Prosecutor that this application does not he as under the Code now in force there is no provision for any sanction to be produced for a Court to take cognisance of any offence. The Amending Act XVIII of 1923 which came into force in September 1923 has abolished the procedure of obtaining sanction and has substituted for it a complaint in writing by the Court itself or by the Court to which that Court is subordinate. The question we have to decide is what the effect of this amendment is as to sanctions already granted before the amendment came into force. Under Section 195 of the Code, as it stood before the amendment, it is conceded that according to the rulings of this High Court the petitioner could bring to our notice the sanction that has been given against him and pray that it might be revoked. Is that power now gone or is it still subsisting. The question was considered at length in a judgment recently delivered by another Bench of this Court in Criminal M.P. No. 374 of 1923 [Nataraja Pillai v. Rangaswamy Pillai 77 Ind. Cas. 297 : 46 M.L.J. 274 : 19 L.W. 358 : 47 M. 384 : 25 Cri. L.J. 361] in which an order of the lower Court revoking sanction was sought to be set aside and sanction obtained from this Court. The learned Judges considered the nature of the application Tinder Section 195 to this Court and holding that it was neither an appeal nor a petition under the revisional jurisdiction, of this Court, following the previous rulings of this Court and that no private party had a vested right of appeal in the matter which could be preserved in spite of the amendment of the law, dismissed that application as incompetent. I respectfully agree with that view. It is, however, argued by Dr. Swaminadhan that that case is distinguishable from the present one, as there the application was to set aside the refusal of a sanction by the lower Court and for the issue of a sanction, whereas here, the application is for the revocation of a sanction already granted which was being used, against his client in his prosecution. I do not think this is a valid distinction. If a party had under the old law a right to get a sanction revoked it would have to be held that a party who had got a sanction which had been wrongly revoked or who had been refused a sanction which ought to have been given to him had equally well a right to get a sanction from the superior Court. If the one is a right the other was equally a right but in my view neither of them is a right. Under the old section power was given to the superior Court to grant or revoke a sanction refused or granted by a subordinate Court. What a party did by his application was simply to bring the matter to the notice of the superior Court. That Court could if it thought fit have even, acted suo motu. Under Section 6 of the General Clauses Act, it cannot, therefore, be said that any party had any vested right in the matter unaffected by the Repealing Act.

2. The production of a sanction for the cognisance of certain specified offences was purely a matter of procedure; it was a pre-requisite for certain prosecutions. Now that the law requiring sanction is repealed the procedure prescribed by the new Act must be adopted for such prosecutions launched after that Act has come into force. I hold for the reasons stated above, that the present application made under the provisions of Section 195, now repealed, does not he and I would dismiss it.

Waller, J.

3. I agree.


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