Posted On by &filed under High Court, Madras High Court.

Madras High Court
Acting Sessions Judge vs Kalagara Bapiah on 3 March, 1903
Equivalent citations: 7 Ind Cas 752
Author: B Iyengar
Bench: B Iyengar


Bhashyam Iyengar, J.

1. The Acting Sessions Judge of Godavari makes this reference under Section 215 of the Criminal Procedure Code for quashing a commitment made to his Court by the Sub-Divisional Magistrate of Ellore under an order made by the High Court under Section 526, Clause (1)(iv), Criminal Procedure Code–the points of law urged by him for quashing the commitment being that the Local Government accorded the sanction under Section 197 of the Criminal Procedure Code for the prosecution of the accused without giving him previous notice and that the sanction accorded does not specify with sufficient clearness the offence for which he is to be prosecuted.

2. In my opinion, Section 215 of the Criminal Procedure Code, under which this reference has been made, is inapplicable to the case inasmuch as the commitment in question is not one made under any one of the four sections therein specified, but is one made under the direction of the High Court under Section 523(1)(iv). The case was pending before the Sub-Divisional Magistrate of Ellore who was trying the case (under Chap. XXI, Criminal Procedure Code) on a charge which had been framed against the accused. When the case was pending before the Joint Magistrate of Rajahmundry, before it was transferred by the District Magistrate to Ellore, and on an application made by the accused to the High Court under Section 526 of the Criminal Procedure Code for a transfer of the case, the High Court transferred its trial to the Sessions Court of Rajahmundry and directed the Sub-Divisional Magistrate to commit the- accused for trial to that Court. It will be observed that under Sections 430 and 526 of the Criminal Procedure Code, a commitment may be made without a charge against the accused (Vide Section 226 of the Criminal Procedure Code) and neither of these sections is specified in Section 215. The order of a Sessions Judge or District Magistrate passed under Section 436 directing commitment can be quashed by the High Court in the exercise of its revisional powers, though not under Section 215 ; but an order passed by the High Court itself under Section 526 cannot be so revised. The case which has been thus committed to the Sessions Judge for trial should be disposed of by him according to law and it will, of course, be competent to him to discharge the accused, if, in his opinion, the points of law urged by him be well-founded.

3. Even if it were competent to the High Court to quash the Commitment under Section 215 of the Criminal Procedure Code or under any other power, I see no sufficient reason to do so as, in my opinion, neither of the grounds urged by the Sessions Judge is well-founded.

4. The sanction accorded by Government under Section 197 cannot be held to be null and void for the reason that no notice was given to the accused to show cause why such sanction should not be given. It is a matter left entirely to the discretion of Government whether such opportunity should be given to the person concerned before sanctioning his prosecution and the Criminal Court before which he is prosecuted is not an appellate-authority over Government in the matter of the sanction.

5. There is a marked distinction between the classes of offences dealt with in Section 195 Clause I (a), (b) and (c) audit is so in connection with offences committed in, or in relation to, any proceeding in such Court and the Court, therefore, acts in its judicial capacity in granting the sanction upon legal evidence. But the Government in according or withholding sanction under Section 197–for the prosecution of a public servant in respect of an offence alleged to have been committed by him as such public servant–acts purely in its executive capacity and the sanction need not be based upon legal evidence. The Government is certainly not acting in a judicial capacity nor exercising a judicial function in authorizing or sanctioning a prosecution under Sections 196 and 197 of the Criminal Procedure Code, and there is nothing in the signification of the word sanction” to import,” as the Sessions Judge supposes, a judicial element into the act of the executive,” and the ruling of the Pull Bench in Queen-Empress v. Sheikh Beari 10 M. 2.12., referred to by the Sessions Judge has no application whatever to the present case.

6. Nor can it be reasonably held that the sanction accorded by the Government to the prosecution of the accused for an offence under Section 168 of the Indian Penal Code, is not a sanction for prosecuting the accused on the charge specified in the complaint. The offence with which he is charged in the complaint is during the term of his office as Municipal Councillor he was a partner in the year 1898 in all the contracts of Mr. Andrews who had no capital of his own but was trading with the funds supplied to him by the defendant (and) that the said Andrew had taken up in July 1898 the contract for the supply of gravel and metal to the Ellore Municipality.” The proceedings of the Government of Madras sanctioning the prosecution of the accused for having, as a member of the Municipal Council of Ellore, committed an offence punishable under Section 168 of the Indian Penal Code, recite that a letter from the Collector of Godavari District dated 9th January 1902 submitting report in the matter of the proposed removal etc. of certain Councillors of the Ellore Municipality” was read and thereupon an order is passed declining to remove from office two of the Municipal Councillors named in the order but sanctioning the prosecution of the present accused. It is, therefore, clear that the report of the Collector related to the proposed removal of two of the Councillors and to the prosecution of the accused for having, while a Municipal Commissioner, had an interest in contracts with the Municipal Council and that Government, after consideration of the facts set forth in the Collector’s report, accorded its sanction for the prosecution of the accused and did not delegate its authority to the Collector as was done by the Board of Revenue in the case of Queen-Empress v. Samavier 16 M. 468., in which it was held that no sanction for prosecution had in law been given by the Board of Revenue inasmuch as it simply authorised the Collector to prosecute the accused in that case on such of the charges set forth in the Deputy Collector’s report as he thinks likely to stand investigation by a Criminal Court.” The Criminal Procedure Code does not prescribe any particular form for the sanction required by Section 197 though in the case of a sanction accorded under Section 195 Sub-section (4) thereof prescribes that the sanction shall as far as practicable specify the place in which and the occasion on which the offence was committed.”

7. The complaint lodged against the accused in the present case is definite and specific and the complainant produced the above proceedings of the Government as according sanction for the prosecution instituted by him and it is simply a captious objection on the part of the accused–raised apparently for the first time before the Sessions Court–to say “that the sanction accorded by Government does not disclose the particular contracts in respect of which his prosecution has been sanctioned. The sanction of Government to prosecute as a Municipal Councillor of Ellore under Section 168 of the Indian Penal Code can only be in respect of his alleged interest in some Municipal contracts and it is not pretended or suggested that the sanction might relate to some contract or contracts other than that referred to in the complaint. If the letter of the Collector read in the proceedings of the Government and thus incorporated therewith had been produced before the Magistrate or even now produced before the Sessions Court by the Public Prosecutor, there would be no room for such quibble and captious objection on the part of the accused.

8. For the above reasons, the commitment made to the Sessions Court will stand and the Sessions Judge will proceed to try and dispose of the case according to law.

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