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Kedarnath Das Vs. Mohesh Chunder Chuckerbutty and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal662
AppellantKedarnath Das
RespondentMohesh Chunder Chuckerbutty and anr.
Excerpt:
criminal procedure code (act x of 1882), section 195 - sanction to prosecute--notice to accused--revisional power, exercise of, by high court. - .....hill, jj.1. this is a rule issued on an application made by the petitioner for the revocation of a sanction granted by the presidency magistrate of the northern division of the town of calcutta under section 195, code of criminal procedure, to prosecute him under sections 182 and 211, penal code, in respect of certain proceedings taken by him in the court of that magistrate. we have nothing really amounting to any record of the proceedings in that case beyond the judgment of the magistrate to the effect that 'the charge of theft of doors and windows made by the petitioner was not proved at all against the accused.' it appears that after the dismissal of that case, an application was made for sanction to prosecute the petitioner kedarnath das, in the presence of his attorney, and that the.....
Judgment:

Prinsep and Hill, JJ.

1. This is a rule issued on an application made by the petitioner for the revocation of a sanction granted by the Presidency Magistrate of the Northern Division of the Town of Calcutta under Section 195, Code of Criminal Procedure, to prosecute him under Sections 182 and 211, Penal Code, in respect of certain proceedings taken by him in the Court of that Magistrate. We have nothing really amounting to any record of the proceedings in that case beyond the judgment of the Magistrate to the effect that 'the charge of theft of doors and windows made by the petitioner was not proved at all against the accused.' It appears that after the dismissal of that case, an application was made for sanction to prosecute the petitioner Kedarnath Das, in the presence of his attorney, and that the Magistrate declined to hear that application at once, and stated that it should be made at the hour fixed by him for the hearing of such applications. This order, we are told, was made, although the attorney for the petitioner Kedarnath Das expressed his willingness to have the application then heard in his presence, and intimated that he was prepared to oppose it. The application, it seems, was subsequently renewed in the absence of that attorney and granted.

2. Now, although it has been recently held by a Full Bench of this Court that service of notice before a sanction is given under Section 195 is not absolutely necessary, still, under the circumstances stated, we think that the Magistrate did not exercise a proper discretion in neglecting to give the other side through his attorney an opportunity of being heard, especially after he had intimated that he was prepared to oppose that application; and, further, we think that the Magistrate did not exercise a proper discretion because, so far as we can learn the facts of this case, he should not have readily granted the sanction asked for. Under Section 195, a discretion is granted to us to revoke any sanction which may have been granted by any authority, such as a Presidency Magistrate of Calcutta, subordinate to us, and therefore the law imposes upon us a responsibility in such matters to consider whether the application has been properly granted or not. It is therefore incumbent upon the subordinate Courts so to frame the proceedings before them as to satisfy this Court as a Court of Revision. In the present case we have absolutely nothing before us except the judgment of the Magistrate recording that the charge preferred by the petitioner Kedarnath was not proved. Now, the fact that that charge was not proved was in itself no sufficient ground for granting the accused in that case permission to prosecute the complainant with having intentionally and falsely charged him with such offence. Under such circumstances, we think that there were no sufficient grounds for granting the sanction to prosecute the petitioner and that that order should accordingly be revoked.


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