Girja Suri vs Emperor

Varma, J.—This is an application on behalf of one Girija Suri who has been convicted by a first class Magistrate of Monghyr u/s 19(f), Arms Act, and sentenced to eighteen months'' rigorous imprisonment. The charge against the petitioner was that:

You on or about 10th June 1944, at Asarganj, Police Station Tarapur, were found in possession of two revolvers, two cartridges and one empty revolver case without licence or lawful authority.

On that day, i.e., 10th June, P.W. 1, an Inspector of Police, received information from a spy that the petitioner and others assembled in the house of one Sukh Nandan Chaudhuri at Asarganj and that they had arms and ammunitions in their possession. A raid was arranged by the police, and the party included the Additional Superintendent of Police, a Sergeant Major, a Sub-Inspector of Police and others. The police-truck left Monghyr at 5 P.M. and reached Asarganj at about 7-30 P.M. They surrounded the house which they wanted to riad and made two arrests. After the arrests they saw the present petitioner escaping out of the back door of Sukhnandan''s house, and they rushed at him. The petitioner took out a loaded pistol (Ex. 1) but was overpowered by constable Laldeo who threw him down. This pistol was handed over to Raghunandan Singh, Sub-Inspector. When a search was made of his person another revolver (Ex. II) was found wrapped in a shirt (EX. III). An empty revolver-case was also found in the pocket of the shirt. Some cartridges, corks besides some reddish powder and a knife were also found. All the materials were entered in the search list (EX. 1). A Fard-Beyan (Ex, 2) was drawn up on the basis of which the preliminary investigation started. Ultimately a charge sheet was submitted on 8th July 1944. The trial Court accepted the evidence adduced on behalf of the prosecution and was of the opinion that it was not possible in the face of the prosecution evidence to accept the evidence adduced on behalf of the defence. The learned Magistrate accordingly convicted the petitioner as already stated, and an appeal from the decision has been summarily dismissed by the learned Sessions Judge.

It may be mentioned that the police party had not obtained any warrant for the search, nor were there any witnesses to the search. This matter is of importance in view of the defence taken up by the petitioner that the whole of this story that he was in possession of the materials was false. It was also noticed by the trial Court that the petitioner was produced before a Magistrate fifteen days after his arrest and no explanation for this delay in producing the accused was offered by the Police.

The learned Magistrate suggests in his judgment that perhaps the Police were exercising their powers under the Defence of India Rules; but he has himself observed that there was nothing on the record to show that the petitioner was detained by the Police in exercise of any of those powers. Apart from the irregularities already stated, it has been pointed out by the learned Counsel for the petitioner that the procedure followed in this case makes the trial null and void.

In order to appreciate this point, it is necessary to set out some more facts as they appear from the order sheet of the trial Court. On 25th June 1944, six persons including the present petitioner were received by the Magistrate and he ordered them to be remanded to hajat till 9th July 1944. On the same date there was a prayer by the Police to segregate the petitioner in the Bhagalpur Central Jail for certain reasons stated by them, and the Magistrate directed that the petitioner be kept in the Court hajat till sufficient guard was available to escort him to Bhagalpur. On 29th June, the accused persons were enlarged on bail of Rs. 400 each. On 9th July, the date that was fixed on the first day, the order sheet says "No report received from the Sub-Inspector. Takid for 23-7-44. Accused as before." On the 10th July 1944, the order is:

Charge sheet u/s 19(f), Arms Aot,received against Girja Sao. To my file for disposal. Accused is in Bhagalpur Jail. B.C. to issue production warrant against him for date fixed.

Then on 12th July 1944 the order is "Summon prosecution witnesses on receipt of District Magistrate''s sanction. Issue production warrant to Bhagalpur Jail for 1-8." On 1st August, another Magistrate noted in the order sheet as follows:

The trying Magistrate is out on tour. District Magistrate''s sanction not received. Ask Court Sub-Inspector to obtain the same before the prosecution case starts. Put up on 16-8-44.

On 16-8-44 the order is: "District Magistrate''s sanction received. Summon prosecution witnesses for 1-9-44. Accused as before." The subsequent orders are the usual orders till judgment was delivered in the case. On these facts it is urged that, apart from the irregularities as to the search, the provisions of Section 29, Arms Act, have not been complied with. That Section provides as follows:

Where an offence punishable u/s 19, Clause (f) has been committed within three months from the date on which this Act comes into foroe in any province, district or place to which Section 32, Clause (2) of Act 31 [XXXI] of 1860, applies at such date, or where such an offence has Been committed in any part of British India not being such a district, province or place, no proceedings shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the District or, in a presidency-town, of the Commissioner of Police.

According to Section 29 of the Act, therefore, no proceeding shall be instituted without the previous sanction of the District Magistrate. The question is whether the proceedings were instituted in this case without such previous sanction. It will be noticed that in the present case the proceedings started against the petitioner on 25th June 1944, when he was produced before the Magistrate, the proceedings went on till 1st August 1944, when the Court Sub-Inspector was directed to obtain the sanction of the District Magistrate, and that sanction was received by the trial Court not until 16th August 1944.

The case in AIR 1945 16 (Federal Court) , gives us ample guidance in disposing of the point raised by the learned Counsel. That was a case under the Drugs Control Order, 1943, and there the question arose whether on the facts of that case the prosecution had been initiated without the sanction of the proper authority and what would be the effects of the sanction having been obtained after the proceedings had already been started. The prosecution in that case was for contravention of the provisions of Clause 9(a) and 13(d), Drugs Control Order, 1943. But Clause 16 of the Order lays down:

No prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government.

The appellant in that case was produced before the Chief Presidency Magistrate on 2nd May 1944 and a chalan under Rules 81(4) and 121, Defence of India Rules, was filed on that date. Thereupon the Magistrate made an order transferring the case to another Magistrate. Later on, on the same day, the appellant was brought before the Magistrate who adjourned the case to 16th May 1944 for evidence and made an order directing that the appellant should furnish bail of Rs. 200 to appear on 16th May. On 16th May it was noted in the order sheet that sanction to prosecute had not been received. Nonetheless the Magistrate made further orders that the case be adjourned to 24th May for evidence, that the prosecution witnesses be summoned for that day, and for bail as before. Against the entry in the order-sheet on 24th May 1944, a note appeared in the margin saying "sanction filed" and the record proceeded that three prosecution witnesses had been examined. Then there was a further adjournment order and thereafter the case proceeded in the usual course up to the stage of judgment.

In such circumstances of the case, their Lordships of the Federal Court observed that,

It would appear that when the absence of sanction was noted, it was considered to be a matter of little importance, which it could be assumed would be put right in due course, and which should not interrupt the ordinary course of a prosecution. In our view, the absence of sanction prior to the institution of the prosecution cannot be regarded as a mere technical defect. The Clause in question was obviously enacted for the purpose of protecting the citizen, and in order to give the Provincial Government in every case a proper opportunity of considering whether a prosecution should in the circumstances of each particular case be instituted at all. Such a clause, even when it may appear that a technical offence has been committed, enables the Provincial Government, if in a particular case it so thinks fit, to forbid any prosecution. The sanction is not intended to be and should not be an automatic formality and should not be so regarded either by police or officials. There may well be technical offences committed against the provisions of such an order as that in question, in which the Provincial Government might have excellent reason for considering a prosecution undesirable or inexpedient. But this decision must be made before a prosecution is started. A sanction after a prosecution has been started is a very different thing. The fact that a citizen is brought into Court and charged with an offence may very seriously affect his reputation and a subsequent refusal of sanction to a prosecution cannot possibly undo the harm which may have been done by the initiation of the first stages of a prosecution. Moreover, in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction a prosecution which has in fact already been started.

Referring to Clause 16 of the Order, their Lordships observed:

In our judgment the words of Clause 16 of this Order are plain and imperative, and it is essential that the provisions should be observed with complete strictness and where prosecutions have been initiated without the requisite sanction, that they should be regarded as completely null and void, and if sanction is subsequently given, that new proceedings should be commenced ab initio. Only so can the protection intended for the citizen be assured. In our judgment the prosecution in this case was dearly instituted without the previous sanction required by Clause 16, and it is not possible to sever the proceedings prior to 24th May from those occurring on and after this date. Consequently, as when the sanction was obtained, no new start was made, the whole proceedings in this case are null and void.

In this view of the case, their Lordships allowed the appeal and directed that the whole proceedings against the appellant be quashed for want of jurisdiction. In the case before us, I have already set out the provisions of Section 29, Arms Act, under which previous sanction of the District Magistrate was required to proceed against the petitioner u/s 19(f) of the Act. The proceedings were clearly instituted against the petitioner without the requisite previous sanction which was imperative. The proceedings started on 25th June 1944, and the sanction was received on 16th August 1944, and it is not possible to sever the proceedings prior to the date of the receipt of the sanction. The whole proceedings, therefore, in this case are null and void.

I would, therefore, make the rule absolute, set aside the conviction and sentence, and direct that the petitioner be discharged from the bail bond.

Pande, J.

I agree.