1. In this matter, on the application of the Superintendent and Remembrancer of Legal Affairs, Bengal, the Court on 20th December 1943, issued a rule upon the District Magistrate of Murshidabad and Mr. S. U. Choudhury, Sub-Divisional Magistrate, to show cause why the orders made by Mr. Choudhury in this matter should not be set aside or why such other or further order should not be made as to the Court might seem fit and proper. The Court further ordered that in the meantime notwithstanding anything in the orders abovementioned, police investigations should proceed forthwith and continue. The matter arises in this way. One Moulvi A. Hamid is a supply officer in Berhampore. Amongst the supplies with which he has to deal is sugar which as to sale, distribution and price is controlled by Government. On 29th November 1943 one Brindaban Saha, a grocer of Berhampore, made a statement which I will read:
My name is Brindaban Saha, son of late Ashutosh Saha of Berhampore Strand Road, Berhampore. I have a grooery shop and godowns. I took license last year in the month of March to deal in sugar. I am a wholesale and retail dealer. I sell sugar on permits issued by the Supply Officer. I have to submit returns for sugar every 15 days. In the return I show the total quantity of sugar sold and also the total quantity in hand. The controlled shop-keepers and the public take sugar on permits. The Supply Officer, Hamid Sahib, occasionally cheeks the permits and the sale register of sugar. He takes away the permits for the period he has already checked. In October last, on the 10th or 11th which date I cannot exactly remember, Hamid Sahib sent three permits through his orderly Latif for seven bags of sugar. They were issued in favour of (1) Sital Prosad Saha for one bag and a half; (2) Nirmal Datta for one bag and a half; and (3) Mohammad Omar for four bags. Making over the permits to me, Latif told me that the permit holders would take delivery of the sugar. I waited for 2/4 days, but finding that nobody was coming to take the sugar I enquired of Hamid Sahib what should be done with this sugar, whereupon he replied that this might be made over to Nripen Sen of Gorabazar. Nripen Sen was present in the Supply Office. Hamid Sahib made the arrangement that he would take the sugar. Nripen Sen agreed to take delivery within a day or two. I waited further for a similar period. As he did not turn up, I sent my employee Harendra Kumar Saha to Hamid Sahib to enquire what was to be done with this sugar.
Hamid Sahib told Harendra to show the sale of the sugar in the name of the permit holders: he would make the arrangements for its disposal after checking the accounts. Accordingly, I showed the sale in the accounts of 2nd Kartic (October 19) and entered it in the return from 16th October to 30th October. On 11th November Hamid Sahib checked the accounts register and put his signature. He took away all the permits of the period from 16-10-'43 to 30-10-'43 which he had checked. I again reminded Hamid Sahib for the disposal of seven bags of sugar and expressed my inability to keep them as surplus and unaccounted for. At this, Hamid Sahib asked me to give money by selling the sugar in black market. I did not agree to this.
I repeatedly requested him for its disposal but up till now he has made no arrangement. He has been passing the time saying that he would do it later on. On 20th November last, the Police Inspector took away the accounts registers of sugar from my shop. I was afraid of this and requested Hamid Sahib to dispose of the sugar. I was no longer prepared to keep this sugar in concealment. I resolved to disclose it to the Police and thus did so to the Daroga Babu of Berhampore P. S. I shall produce these 7 bags of sugar from my shop. These bags of sugar were damaged by the rats while lying in the godown. The bags were replaced by the new ones. The weight of these bags which was shown in the stock and sale register was not exactly weighed as they were not sold at all. I know these shop-keepers to whom the sale of the sugar was shown. They never came to me to take the delivery of the sugar. Their addresses are given below:
(1) Nirmal Datta of Saidabad: (2) Sital Prosad Saha of Gorabazar: (3) Mohammad Omar of Khagra. Finding in your possession my stock and sale registers which were taken by the Police Inspector before hand I show the page in which the sale of 7 bags of sugar was entered. The sale of this sugar was shown on the 2nd Kartick. The 2nd Kartick corresponds to 19th October. I told all these facts sincerely. This is my statement.
2. That statement was entered as a first information report of a cognizable crime reported under Section 154, Criminal P. C, at the Police Station, Berhampore, in the district of Murshidabad on 29th November 1943. The Superintendent of Police directed that the information should be treated as a first information report of a cognisable offence under Section 409, Penal Code, that is to say, criminal breach of trust by a public servant together with Section 511, Penal Code, a section which deals with the attempt to commit an offence. That was done on 30th November 1943. The officer in charge of the police station then sent the usual report of the suspected commission of a cognisable crime to the Sub-Divisional Magistrate, Mr. S. U. Choudhury, and Mr. S. U. Choudhury on 1st December 1943 made this order which I read from the order sheet before us:
Seen the first information report. The case is against the Sub-Divisional Supply Officer Moulvi A. Hamid, a Sub-Deputy Collector, under Section 409/511, Penal Code. I think I cannot take cognizance of the offence under Section 197, Criminal P. C, without the sanction of the Local Government. Police may move the District Magistrate to obtain sanction of the Local Government. Send copy of the first infomnation report and this order sheet to the District Magistrate and the Superintendent of Police.
3. He made that order some time on 1st December 1943. If he had stopped there the matter would not have come before us in the form it does. But in the order sheet are written these words:
Later. It strikes me that when the Court cannot take cognizance of the offence alleged without the sanction of the Local Government the case is not cognizable and the police cannot draw up a first information report under Section 154, Criminal P. C. Further they cannot also investigate the case under Section 156, Criminal P. C, as the Court cannot take cognizance of the offence under Section 197, Criminal P. C, without the sanction of the local Government. I therefore order that the first information report should be cancelled and the investigation should be stopped till sanction of the local Government is obtained.
4. It is the second part of the order with which we are concerned. The Government through the Superintendent and Remembrancer of Legal Affairs moved this Court as I have related on 20th December 1943 and we made the order that I have set out. The District Magistrate is not the Magistrate who was there when the Sub-Divisional Magistrate made his order so that the District Magistrate merely forwards to us the explanation of the Sub-Divisional Magistrate. We have had before us that explanation which runs to six type-written pages. I am unable to follow the arguments that are set out there nor do I think that what purport to be the reasons he gave when he made his order operated on the mind of the Sub-Divisional Magistrate when the order was given. The Magistrate apparently served our rule upon Moulvi A. Hamid. He was not instructed to do so and had no authority to do so. We are not concerned with Moulvi A. Hamid at present.
5. The only question before the Court at this stage is whether the order of the Sub-Divisional Magistrate cancelling the first information report and stopping the investigation into the matter set out in the first information report till the sanction of the local Government is obtained shall stand. That is the only question. 'Whether the case alleged against Moulvi Hamid is proved will depend upon the evidence. We directed that the investigation must go on until this rule was heard. Having had the matter before us we can see no authority in the Code of Criminal Procedure for the Magistrate making the order that the first information report should be cancelled. We see no authority that the investigation should be stopped till sanction of the local Government is obtained. If an order like this were to stand, it would mean that there can be no police investigation on the conduct of a large number of Government officials for alleged offences against the law until the sanction of the local Government has been obtained and it would mean that the first information report based upon evidence that had been obtained as a result of an investigation would be annulled : in other words, it would be stopping the investigation of alleged offences in such cases. There is no authority in the Code of Criminal Procedure for doing that and it is manifestly against public interest. The result is that the rule is made absolute.
6. I agree.