Biran Rai and Others vs Emperor

Sultan Ahmed, J.—This is an application against an order passed by the Subordinate Judge of Shababad u/s 476, Criminal Procedure Code, directing the petitioners to appear before the Sub-Divisional Magistrate of Arrah for trial for an offence u/s 186, Indian Penal Code.

The facts of the case may be shortly stated as follows:

There was an execution proceeding in the Court of the Subordinate Judge, in the course of which an application was filed by the decree bolder u/s 195, Criminal Procedure Code, for the prosecution of the petitioners u/s 186, Indian Penal Code.

The learned Subordinate Judge granted the application of the decree-holder and sanctioned their prosecution u/s 195, Criminal Procedure Code.

The petitioners thereupon applied to the learned District Judge against the order of the Subordinate Judge granting sanction. The learned District Judge on the 22nd December 1919 passed an order, portions of which relevant to the point that I have to consider may be quoted.

He says: "I think that a prima facie case has been made out. I could not reasonably revoke the sanction which the learned Subordinate Judge has given. The application is rejected " Then later on he says--"It may be pointed out that a prosecution u/s 186, Indian Penal Code, ought to be conducted by the Crown and not by any private party, It is manifest that if at any stage in the proceeding this case is to be withdrawn or abandoned, it should be withdrawn or abandoned by the Crown and not by the decree-holder. I think, therefore, that before criminal proceedings are actually instituted in this case, the Subordinate Judge should be moved to take action in the regular way u/s 476, Criminal Procedure Code."

In pursuance of this order the decree-holder filed an application before the Subordinate Judge for a direction for the prosecution of the petitioners u/s 476, Criminal Procedure Code.

The learned Subordinate Judge thereupon on the 2nd March 1920 drew up a proceeding directing the prosecution of the petitioners u/s 186, Indian Penal Code, and in that proceeding he says--"And whereas under the direction of the District Judge this Court has been moved to take action u/s 476, Criminal Procedure Code, and being satisfied that there is a prima facie case against the said persons, I hereby u/s 476 direct that the said persons accused in the case do appear before the Sub-Divisional Magistrate of Arrah for trial and the connected papers be sent to him for necessary action."

It is against this order that this Court has been moved, and the learned Vakil, appearing for the petitioners, has contended that there was no judicial proceeding pending before the Subordinate Judge at the time when he passed the order u/s 476; and that, therefore, the order is without jurisdiction. In my opinion this contention has no force. It is not necessary that there should be in existence a judicial proceeding in the course of which an order u/s 476 should be passed; all that is required by law is that the order should be passed with respect to the offence which may have been committed before it, or brought to its notice in the course of a judicial proceeding; and that being so, in my opinion, this contention must fail. The offence u/s 186, Indian Penal Code, was brought to the notice of the Subordinate Judge in course of the Section 195 proceeding, which was a judicial proceeding. The necessity of a judicial proceeding pending, in the course of which an order u/s 476 is passed, arises in exceptional cases, where, for instance, an officer, who heard the judicial proceeding, in the course of which the offence was brought to his notice, is succeeded by another officer--see the case of Ram Nigah Singh v. Emperor 41 Ind. Cas. 1007 : 1 P.L.W. 772 : 18 Cr.L.J. 895 : (1918) Pat. 64 : 4 P.L.W. 141.

The second point urged by the learned Vakil, appearing for the petitioner, is that the Subordinate Judge did not pass the order u/s 476, Criminal Procedure Code, suo motu, but he was simply carrying out the direction of the District Judge, when he directed the prosecution of the petitioners on the 2nd March 1920.

There can be no doubt that the idea of the prosecution of the petitioners was present in the mind of the learned Subordinate Judge at the time when he passed his order, because he had already passed an order u/s 195 granting sanction for the prosecution of the petitioners at an earlier stage at the instance of the decree-holder. Apart from that, the proceeding itself shows that he was himself satisfied that an offence had been committed.

In my opinion, the learned District Judge should have himself passed an order u/s 476; but I am inclined to follow the decision of Jwala Prasad, J., in the case of Awadh Behari Lal v. Emperor 50 Ind. Cas. 162 : 20 Cr.L.J. 274 where an order like the one I am considering was upheld.

The third ground urged is that the order u/s 476 was passed by the Subordinate Judge after the lapse of the sanction u/s 195, Criminal Procedure Code, granted by him and as such the order was wrong and liable to be set aside; and reliance is placed for this contention on the decision of my brother Dap, J., in the case of Lalji Tewari v. Emperor 54 Ind. Cas. 894 : 5 P.L.J. 58 : 1 P.L.T. 147 : (1920) Pat. 125 : 21 Cr.L.J. 190. With due respect to him I regret that I find myself wholly unable to agree, either with his reasonings or his decision on this point in that case. The learned Judge, and I say so again with the greatest respect to him, has ignored the cardinal difference between a sanction u/s 195, Criminal Procedure Code, and a direction for prosecution u/s 476, Criminal Procedure Code. He has introduced into Section 476, Criminal Procedure Code, the provisions of Section 195, Clause (7), Criminal Procedure Code, for which there is no authority whatsoever. As was laid down by Sharfuddin, J., in Rajkumar Singh v. Emperor 87 Ind. Cas. 487 : 1 P.L.J. 298 : 18 Cr.L.J. 135 : 8 P.L.W. 33 Section 475 is a self contained section and the reference made to Section 195, Criminal Procedure Code, in Section 475 is only for the purpose of avoiding the enumeration of the sections mentioned in Section 195, Criminal Procedure Code. Even if this view be held to be too narrow and the words "any offence referred to in Section 195" in Section 476" be held to read ''subject to the restrictions contained in Clause 1, Sub-clauses (a), (b) and (c) of Section 195", yet they cannot, by any stretch of reasoning, be held to read "subject to the restrictions laid down in Clause (6) of Section 195."

I am confirmed in the view that I take of this matter by a reference to Section 195, Clause (6), itself. That clause in the first part points out the appellate authority to grant or revoke sanction. There is no authority for the suggestion, if made, that this part applies to an order u/s 476, Criminal Procedure Code, as it is well established that the latter order is only revisable by the High Court. If this part of Clause (6) does not apply to Section 476, I fail to see why the second part which fixes the period during which a sanction u/s 195 is to remain in force can be held to control an order u/s 476. The cases reported as Nawal Singh v. Emperor 14 Ind. Cas. 766 : 31 A. 393 : 9 A.L.J. 481 : 13 Cr.L.J. 302, Emperor v. Talak Pandey 29 Ind. Cas. 97 : 37 A. 841 : 13 A.L.J. 466 : 16 Cr. L.J. 465, In Re: Lakshmidas Lalji 32 B. 184 : 10 Bom.L.R. 28 : 7 Cr.L.J. 35 : 3 M.L.T. 116 and Waman Dinkar Kelkar v. Emperor 51 Ind. Cas. 257 : 43 B 300 : 20 Bom. L.R. 998 : 20 Cr.L.J. 433 also support the view that no time limit can be fixed when an order u/s 476, Criminal Procedure Code, should be passed.

The last ground taken is the undue delay which has occurred in passing the order u/s 476. The offence was alleged to have been committed in February 1919. The order u/s 195, Criminal Procedure Code, was passed by the Subordinate judge on the 5th July 1919; the order of the District Judge in appeal u/s 195, Clause (6), was passed on the 22nd December, The Subordinate Judge passed the order u/s 476 on the 2nd March 1920. There can be no doubt that this delay is unduly long. Whatever may be said with respect to the time taken up to the 22nd December 1919 when the District Judge disposed of the appeal, there is no explanation whatsoever for passing the order u/s 476 about two and half a months after the District Judge''s order. The learned Assistant Government Advocate has, however, referred to the decision of my learned brother Jwala Prasad, J., in Awadh Behari Lal v. Emperor 50 Ind. Cas. 162 : 20 Cr.L.J. 274 where it has been held that mere delay is not a ground for interference by the High Court.

On a fair reading of that judgment I think my learned brother made the observation referred to with reference to the facts of the cage before him, I cannot induce myself to believe that he laid down any general proposition of law and by doing that he meant to differ from the observations of the learned Judges composing the Fall Benches of the Calcutta and Madras High Courts in the oases of Shaikh Bahadur v. Erodatullah Mallick 6 Ind. Cas. 801 : 37 C. 642 : 14 C.W.N. 799 : 12 C.L.J. 45 : 11 Cr.L.J. 407 and Rahimadulla Sahib v. Emperor 31 M. 140 : 17 M.L.J. 684 : 3 M.L.T. 78 : 7 Cr.L.J. 54 respectively, in which it was held that action u/s 476 should be as far as possible prompt and expeditious.

In my opinion whether in a particular case there has been undue delay in making an order u/s 476, is a question which must be decided on the facts of each case, and where undue delay has been established, the High Court is entitled to set aside the order and arrest further proceedings.

On the facts of the case before me I have some to the unhesitating conclusion that the petitioners have been prejudiced by the delay and will be further prejudiced in their defence if there be a trial of an offence alleged to have been committed by them over 14 months ago, when the responsibility of the delay in passing the order u/s 476 of at least two months and a half cannot be fastened on their shoulders. The result, therefore, is that I set aside the order of the Subordinate Judge directing the prosecution of the petitioners u/s 476, Criminal Procedure Code, for an offence u/s 186, Indian Penal Code.

This order will also govern Civil Criminal Revision No. 3 of 1920.