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Pochai Meteh Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1913)ILR40Cal239
AppellantPochai Meteh
RespondentEmperor
Cases ReferredMehdi Hasan v. Tota Ram
Excerpt:
sanction for prosecution - appeal, right of--grant or refusal- of sanction by a, lower authority--application to superior authority whether a matter of appeal or revision--limitation of the period of such application--criminal procedure code (act v of 1898), section 195 (6)--limitation act (ix of 1908), schedule i, article 154. - .....section 195 of the code of criminal procedure or, in other words, whether that section grants a right of appeal as laid down in section 404 of the code.2. now section 404 of the code states very precisely that no appeal shall lie from any judgment or order of the criminal court, except as provided for by this code or by any other law for the time being in force.3. in order, therefore, to give a right of appeal, section 195 must contain, in our opinion, within itself a distinct declaration that there is a right of appeal, and we can find no such declaration either expressly or by implication. it is true that a full bench of the allahabad court in the case of hardeo singh v. hanuman (1903) i.l.r. 26 all. 244. held, in answer to an academic question, that the expression in section 139.....
Judgment:

Holmwood, J.

1. The question which arises upon this Rule is whether the provisions of Article 154 of the Limitation Act are applicable to proceedings under Section 195 of the Code of Criminal Procedure or, in other words, whether that Section grants a right of appeal as laid down in Section 404 of the Code.

2. Now Section 404 of the Code states very precisely that no appeal shall lie from any judgment or order of the Criminal Court, except as provided for by this Code or by any other law for the time being in force.

3. In order, therefore, to give a right of appeal, Section 195 must contain, in our opinion, within itself a distinct declaration that there is a right of appeal, and we can find no such declaration either expressly or by implication. It is true that a Full Bench of the Allahabad Court in the case of Hardeo Singh v. Hanuman (1903) I.L.R. 26 All. 244. held, in answer to an academic question, that the expression in Section 139 giving certain powers to a Court of appeal raised an inference that the Legislature in referring to a 'Court of appeal' in connection with Section 195 Sub-Section (6), regarded the application to be made under that sub-Section as an application made to a Court of appeal, and, therefore, in the nature of an appeal. But the Full Bench went on to say: 'It does not appear, however, to us at all material by what name the application is called in pursuance of which the Appellate Court sets aside an order for sanction, and gives sanction under the provisions of Section 195.'

4. The Allahabad Court had not before it this question of limitation, and this question is the only question upon which the designation of the proceeding under Section 195 could be of any importance whatever, and it is, therefore, solely in connection with this point of limitation that we are concerned with it.

5. There is another ruling, to which we have been referred, in Muthuswami Mudali v. Veeni Chetli (1907) I.L.R. 30 Mad. 382. in Madras. This is also a ruling of a Pall Bench of that Court in which the question was decided whether on revocation of a sanction by a lower Appellate Court the party aggrieved could proceed to the High Court in the same way as it could if there had been a refusal of sanction: and the Full Bench held that the revocation of sanction was precisely the same thing as a refusal of sanction, and that the same right of proceeding to the authorized Appellate Court, as laid down in Section 195, was given to the party aggrieved. In coming to this decision the Full Bench has somewhat loosely made use of the expression 'right of appeal,' and this has been used throughout the judgment; lb at it does not touch the point before us, and for the purposes of that decision it did not in the least matter whether the Full Bench made use of the words 'right of appeal' or right of petitioning for sanction or revocation of sanction.

6. The only case reported which deals with the matter directly is the case of Hari Mandal v. Keshab Chandra Manna (1912) 16 C. W. N. 903. to which one member of the present Bench was a party. It is there laid down that, inasmuch as an application under Sub-section (6) of Section 195 of the Criminal Procedure Code is not an appeal, within the meaning of Sub-section (2) of Section 22 of the Bengal Civil Courts Act, the Court to which an application to revoke a sanction or grant a sanction is made cannot transfer the case to a Subordinate Judge. This case perhaps does not cover the whole ground, but it certainly s authority for the view that an application under Section 195 is not an appeal within the meaning of Section 401. It had already been decided in a sense by another Bench of this Court in Ham Charan Talukdar v. Taripulla (2) and I may mention that the Criminal Bench of this Court, over which I have had the honour to preside for the greater part of the last two years, has decided, on more than one occasion, that an application under Section 195 is not an appeal, although that was not decided with regard to this question of limitation. But as this is a question of limitation, it has merely to be stated that there is a doubt as to whether this is an appeal or not to give the applicant the benefit of the longer period. That is a rule which has been laid down by Lord Esher in the case of In re North. Ex parte Hasluck [1895] 2 Q. B. 264, 270., and it is a rule which has always been followed in this Court and is cited in Gopal Lal Sahai v. Bahorni (1911) 15 C. L. J. 120.

7. Speaking for myself, I think that the considerations set out by Knox J. in the case of Mehdi Hasan v. Tota Ram (1892) I.L.R. 15 All. 61. are of extreme force and lay down the correct view of the Law, but it is only necessary to hold, although we do not so hold, that the-re is any doubt on the subject, to give the applicant the benefit of the law of limitation. While, therefore, we have no doubt in our own minds that there is no appeal under Section 195 and that it is a matter of revision, we have no hesitation in making the Rule absolute, and directing that the learned Judge in the Court below should deal with the matter as if there was no limitation at the time of hearing the application.

8. The stay of the charge under Section 342 is no longer necessary, and may be discharged, but stay of the trial under Section 211 will, of course, abide the result of these proceedings. The Rule is made absolute, and the case remanded to the lower Court.

Carnduff J.

9. I agree. Sub-section (6) of Section 195 of the Code of Criminal Procedure, 1898, provides that any sanction given or refused under that Section may be revoked or granted by the higher authority indicated. I think that this language is such as to confer, not a right of appeal on the person aggrieved by the grant or refusal to the higher authority, but a discretionary power of interference on the higher authority. What is given is not a right of appeal from below, but power to intervene, if thought advisable, from above.


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