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Chaudhari Mahomed Izharul Huq Vs. the Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal349
AppellantChaudhari Mahomed Izharul Huq
RespondentThe Queen-empress
Cases ReferredEmpress v. Rachappa I.L.R.
Excerpt:
criminal procedure code (act x of 1882), sections 195, 476--sanction for prosecution--preliminary inquiry--false evidence--penal code (act xlv of 1860), section 193--jurisdiction of high court to quash orders under section 476 of the criminal procedure code. - .....at any rate it is plain that such an inquiry ought to precede the proceedings contemplated by the section. we think this is one of them on the face of it. upon the order of the deputy magistrate, which has been read and commented upon before us, the case is surrounded with difficulties. we do not think that the order was rightly made as having been made upon the impression produced by such evidence as was in this case heard by the deputy magistrate. we think that in the circumstances of this case he ought to have made an inquiry before exercising his powers under section 476, and as he has not done so, we must set aside his order and make the rule absolute.2. as i have stated, with reference to what i have said upon section 195, i simply expressed my own individual opinion. mr. justice.....
Judgment:

Pigot, J.

1. This case arises either under Section 195 or under Section 476 of the Criminal Procedure Code. If under Section 195, and for myself I do not think it possible that a general sanction issued forth of his own motion by the magistrate irrespective of any application for sanction to prosecute can be contemplated by that section, then we think it is a case in which sanction ought not to have been granted. If it is a case under Section 476, it is laid down by a decision In the matter of the petition of Khepu Nath Sikdar v. Grish Chunder Mukerji I.L.R. 16 Cal. 730 differing apparently from the case of Queen-Empress v. Rachappa I.L.R. 13 Bom. 109, that this Court has jurisdiction to interpose in the case of an order made by a Court under that section, If the Court has jurisdiction to interpose, and we are here dealing with a rule which has been granted in this Court, then it appears to us that the Court must have the power to determine whether the discretion given by that section has or has not been properly exercised. The discretion is given by the words 'such Court after making any preliminary inquiry that may be necessary, may send the case for inquiry or trial.' It is therefore for the Court acting in the matter in the exercise of its discretion to determine whether or not to make such preliminary inquiry. There may be cases in which at any rate it is plain that such an inquiry ought to precede the proceedings contemplated by the section. We think this is one of them on the face of it. Upon the order of the Deputy Magistrate, which has been read and commented upon before us, the case is surrounded with difficulties. We do not think that the order was rightly made as having been made upon the impression produced by such evidence as was in this case heard by the Deputy Magistrate. We think that in the circumstances of this case he ought to have made an inquiry before exercising his powers under Section 476, and as he has not done so, we must set aside his order and make the rule absolute.

2. As I have stated, with reference to what I have said upon Section 195, I simply expressed my own individual opinion. Mr. Justice Rampini is of opinion that a general sanction may be given under Section 195; but our judgment that if the sanction issued under Section 476, it must be revoked, and if under Section 195, it must be set aside, is common to us both.


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