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Raj Chunder Mozumdar Vs. Gour Chunder Mozumdar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal176
AppellantRaj Chunder Mozumdar
RespondentGour Chunder Mozumdar
Cases ReferredJoydeo Singh v. Harihar Pershad Singh I.L.R.
Excerpt:
sanction to prosecute - prosecution commenced more than six months after granting of sanction, the period intervening being close holidays--penal code, sections 193, 471--criminal procedure code (1882), sections 195 and 537. - .....the 7th of march 1894. the objection was at once taken that under section 195, criminal procedure code, the sanction of the 5th of september 1893, was no longer in force. but this objection was overruled on the ground that the last few days were close holidays. the enquiry accordingly proceeded, and on the 19th of july last the petitioner was committed to take his trial before the court of session on charges of perjury and forgery. it is contended on behalf of the petitioner that six months having elapsed from the date of the sanction, the magistrate was debarred by section 195 from taking cognisance of the offence, and that therefore his proceedings were without jurisdiction. section 195, after declaring that no court shall take cognisance of offences like those with which the.....
Judgment:

W. Comer Petheram, C.J. and Beverley, J.

1. This is a rule to quash a commitment to the Sessions Court on the ground that the prosecution was commenced after the expiration of the period during which the necessary sanction for the prosecution under Section 195, Criminal Procedure Code, was in force. It appears that in consequence of certain proceedings in the Civil Court, the Munsif of Lakhipur, in the district of Noakhali, on the 5th of September 1893, sanctioned the prosecution of the petitioner on charges under Sections 193 and 471 of the Penal Code. The petition for the criminal prosecution was not, however, presented till the 7th of March 1894. The objection was at once taken that under Section 195, Criminal Procedure Code, the sanction of the 5th of September 1893, was no longer in force. But this objection was overruled on the ground that the last few days were close holidays. The enquiry accordingly proceeded, and on the 19th of July last the petitioner was committed to take his trial before the Court of Session on charges of perjury and forgery. It is contended on behalf of the petitioner that six months having elapsed from the date of the sanction, the Magistrate was debarred by Section 195 from taking cognisance of the offence, and that therefore his proceedings were without jurisdiction. Section 195, after declaring that no Court shall take cognisance of offences like those with which the petitioner is charged, except with the previous sanction or on the complaint of the Court in which the offence was committed, or of some other Court to which such Court is subordinate, goes on to say that 'no such sanction shall remain in force for more than six months from the date on which it was given.' This provision was introduced into the present Code in order that the charge may not be held in terrorem over the person sought to be charged indefinitely. It is true that March 4th, 1894, was a Sunday, and March 5th and 6th were Civil Court holidays, and the Deputy Magistrate in his explanation says that the Criminal Courts were also closed on those dates. But we are not aware of any provision of law under which the period during which the sanction may remain in force can be extended in consequence of that fact. Section 7 of Act I of 1887 will not apply, as the Code of 1882 was passed before, and not after, the passing of that Act (see Section 2).

2. In the case of Joydeo Singh v. Harihar Pershad Singh I.L.R. 11 Cal. 577 the period of six months had been allowed to expire without any prosecution being instituted, and a fresh sanction was applied for and obtained. But this Court held that, even assuming that a fresh sanction could be granted, a point which the learned Judges did not decide, it should not have been granted unless some explanation was given for the omission to commence the proceeding within six months, and the order for sanction was set aside. In the present case we think that the proceeding, not having been instituted within six months from the date of the sanction, the Magistrate had no power to take cognisance of the offence, and his proceedings therefore are void. Mr. Leith has drawn our attention to the provisions of Section 537 of the Code, but that section is expressly made subject to the provisions before contained, and we cannot therefore suppose that it was intended to override the provisions of Section 195. Nor can it refer to a case in which the want of sanction was directly brought to the notice of the Magistrate at the commencement of the proceedings before him. Nor can we say that there has not been a failure of justice in the prosecution of the petitioner after the period, for which the sanction was in force, had expired. We accordingly make the rule absolute and quash the commitment of the petitioner. The petitioner will be discharged.


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