1. The petitioner has been placed on his trial upon a charge under Section 294A of the Indian Penal Code.
2. The Police reported the facts upon which the charge is based, and Mr. Burrows, as Additional District Magistrate, submitted a report to Government for the purpose of obtaining the sanction required by Section 196, Criminal Procedure Code, and the authority was conveyed in a letter issued from the Chief Secretary's Office, and signed by Mr. A. Cassells for Chief Secretary. A Police Officer then made a complaint to Mr. Burrows, and the petitioner was summoned. On the day fixed for hearing Mr. Burrows transferred the case to another Magistrate.
3. On these facts two objections are based. The first is that Mr. Burrows was not competent to take cognizance of the case at all, because he had taken a part in initiating the proceedings. The second is that the authority is defective because the letter is signed by Mr. Cassells, and not by the Chief Secretary himself.
4. I cannot see any merit in the first objection, save to the extent that Mr. Burrows would have been well advised to direct some other Magistrate to receive the complaint, instead of transferring the case for trial after issuing process.
5. The second objection is extremely technical, but I think that effect must be given to it.
6. Under Section 196, Criminal Procedure Code, the complaint must be made by order of or under authority from the Local Government. The Evidence Act lays down the conditions under which the Court may accept a mere letter as proof that the order has been issued or the authority conferred by the Local Government. Under Section 79 it must draw certain presumptions, and if Mr. Stephenson had himself signed the letter the order would have been proved. When it was argued in the case of Apurba Krishna Bose v. Emperor 35 C. 141 : 7 C.L.J. 49 : 7 Cr.L.J. 10 : 2 M.L.T. 500, that the head of the Local Government, then the Lieutenant-Governor, ought to have signed the order, it was said that he must, necessarily, and ordinarily does, communicate his orders through his accredited and gazetted officers, but in that case the sanction had been signed by the Chief Secretary. That decision, therefore,' has no bearing on the present case, for here the letter is signed by Mr. Cassells for the Chief Secretary. Mr. Cassells was at the time Deputy Secretary, according to the Civil List, but he did not claim for himself any official position he merely signed on behalf of the Chief Secretary. In these circumstances, I think it must be held that there is no legal proof that the Local Government has ordered or authorised the prosecution. No presumption arises as to Mr. Cassell's capacity to sign the letter, and he could not certify the order on behalf of Mr. Stephenson, whose own capacity was that of a delegate.
7. The result is that the Rule is made absolute and the proceedings quashed. The petitioner will be discharged from his bail.
8. I agree. The first objection is that on general principles the Additional District Magistrate should not have taken cognizance of the case, as he had himself taken part in the initiation of the proceedings. It is argued that if a Magistrate in the position of the Additional District Magistrate takes cognizance of a case, the provisions of Sections 202 and 203, Criminal Procedure Code, which empower a Magistrate to dismiss a complaint or enquire into its truth, become futile and meaningless. I do not think there is any substance in this argument. As has been observed by Carnduff, J., in the case of Lakhai Narayan Singh v. Emperor 6 Ind. Cas. 276 : 14 C.W.N. 589 : 37 C. 221 : 11 C.L.J. 415 : 41 Cr.L.J. 305, there is no bar prescribed by; the Code of Criminal Procedure to a Magistrate in such a position receiving a complaint whereas Section 556 may render him incompetent to try it. Moreover, Section 190(c), Criminal Procedure Code, gives express jurisdiction to a Magistrate to take cognizance of an offence even 'upon his own knowledge' in which event, it is clear, Sections 202 and 203, Criminal Procedure Code, are of as little avail as in the present case.
9. With reference to the second ground I agree in holding that the sanction required by Section 196, Criminal Procedure Code, has not been properly proved in this case. That section demands a sanction by the Local Government. The sanction in this case is contained in R letter which is headed 'From H.L. Stephetson, Esq., C.S.I., C.I.E., Chief Secretary to the Government of Bengal' and signed 'A. Cassells, for Chief Secretary to the Government of Bengal.' This order of the Government sanctioning the present prosecution has to be proved according to the provisions of Section 78 of the Evidence Act, which requires that an order of the Local Government may be proved by the record certified by the head of that department. The original letter is not on the record but there is a copy which is defective and does not appear to be a certified copy under Section 76 of the Evidence Act. Besides, the letter does not purport to have been signed or certified by the head of the department to attract the presumption arising under Section 79 of the Act. Had Mr. Cassells issued the letter in the official capacity he held, I doubt, if it would not have then been in order, as all orders of the Government are issued through its accredited officers. We do not know and no evidence has been given to prove what authority Mr. Cassels had to sign for Mr. Stephenson. I am not sure if the prosecution cannot prove that proper sanction has been accorded by Government de hors the letter under consideration, but no such material being before us, we have no alternative but to quash the proceedings based on a document which does not satisfy the requirements of law.