Hari Charan Misra vs Emperor

James, J.—The petitioner was committed for trial by the Deputy Magistrate of Bhagalpur on a charge of criminal conspiracy punishable under Sections 467 and 471, Penal Code. By the provisions of Section 196 A-(2), Criminal P.C., the sanction of the Local Government was necessary to the initiation of proceedings before the Court could take cognizance of offence; but this sanction has not been obtained. The trial proceeded to the stage at which the opinion of the assessors was taken, when it was brought to the notice'' of the Assistant Sessions Judge that he bad no power to deal with the case. He then held that the trial which had taken place was ab initio void, and he passed no sentence of conviction or acquittal.

He directed that the District Magistrate should be informed on the facts, and that the accused persons should remain in the position in which they were before the inquiry began.

The case had been originally instituted on the complaint of the local Superintendent of Post Offices. After the order had been recorded by the Assistant Sessions Judge, sanction from the Local Government was obtained to the prosecution under Sections 467 and 471 read with Section 120-B, Penal Code. A fresh complaint was made and the Magistrate proceeded to hold a new inquiry under Ch. 18, Criminal P.C. We are asked to stay further proceedings in this inquiry on the ground that the Assistant Sessions Judge acted illegally in failing to deliver final judgment, and that the trial before him must be treated as still pending.

The learned advocate for the petitioner argues that the Assistant Sessions Judge, when he had once entered on the trial, had no alternative but to proceed to judgment. He cites the decision in the case of Nathu Rewa v. Emperor AIR 1915 Bom 149 wherein a Sessions Judge finding at the end of the trial that there had been a misjoinder of charges cancelled the trial, and decided to hold a fresh trial against the accused. The Bombay High Court held that when the Sessions Judge had reached the stage at which the assessors opinion had been recorded, he had no option but to deliver judgment in accordance with the provisions of the Criminal Procedure Code.

The learned advocate cites also the case'' of In re Kambala Narayana AIR 1919 Mad 19 but in that case it was merely pointed out that where a Sessions Judge was trying one offence with the aid of a jury, and another offence with the aid of assessors, the fact that he found it necessary to make a reference u/s 307, Criminal P.C., against the verdict of the jury did not absolve him from his duty to give judgment on the charge that he had tried with the aid of assessors. But the learned Assistant Sessions Judge in dealing with the present case remarked that this was a case in which the proceedings were ab initio illegal. In the case of V.M. Abdul Rahman v. Emperor AIR 1925 Rang 296 which, is quoted by the learned Assistant Sessions Judge, the District Magistrate had taken cognizance of an offence punishable u/s 120-B which required previous sanction of the Local Government u/s 196-A, Criminal P.C. Without obtaining that sanction, it was pointed out by Sir Sydney Robinson that the whole of the proceedings were ab initio without jurisdiction and illegal.

In that case, as in the present case, no Court has power to take cognizance of the offence of criminal conspiracy unless the Local Government had by an order in writing consented to the initiation of the proceedings, so that the whole proceedings were ab initio void, the commitment was void, and the trial was void and the Assistant Sessions Judge had actually no jurisdiction to pronounce a verdict either of acquittal or of conviction.

The learned advocate quotes the case of Ram Prasad Guru Vs. Emperor, wherein this Court dealing with an offence committed outside British India for which the sanction of the Political Agent was necessary in order to give jurisdiction to the British Court, recorded an order acquitting on appeal the person who had been convicted. In that case, to which I was a party, the form of the order must, I think, be admitted to have been incorrect and it was apparently made by inadvertence.

The order should have been that the conviction was set aside and not that the accused was acquitted. It is not easy to say what useful purpose could be served by an order such as the learned advocate suggests should be made to the Assistant Sessions Judge. We cannot order him to record judgment in accordance with the ordinary procedure, for that would be to order him to acquit or convict. He cannot convict because he has no jurisdiction to entertain the charge for want of the sanction of the Local Government. He cannot acquit in such a manner that his acquittal will have the effect u/s 403, Criminal P.C., of staying further proceedings: Mohammad Yasin Vs. King-Emperor, , P. Banerjee, Sanitary Inspector, Howrah Municipality Vs. Bipin Behary Ghose and Another, . It does not appear that the order which he has recorded is in any way improper or illegal.

The learned Sessions Judge, when the application was made before him, for revision of the order of the Subdivisional Magistrate to issue process on the second complaint, treated the order of the Assistant Sessions Judge as made u/s 532, Criminal P.C. The learned advocate for the petitioner points out that Section 532 applies only to those cases, in which the Magistrate who made the complaint purported to exercise power duly conferred which had not been so conferred; and that neither of the two alternative courses prescribed by the section were open to the Assistant Sessions Judge in this case. The Sessions Court may accept the commitment, or in the alternative it may quash the commitment and direct fresh inquiry by a, competent Magistrate.

The Assistant Sessions Judge could not in this case accept the commitment, because the Magistrate had no jurisdiction to entertain the charge, and the Assistant Sessions Judge in the circumstances had no jurisdiction to try it. He could not adopt the alternative procedure of quashing the commitment and directing a fresh inquiry by a competent Magistrate, because so long as the sanction of Government for the prosecution was wanting, no Magistrate was competent to hold the inquiry. There has been some discussion in this Court on the question of whether it is now open to us to quash the original commitment of the Assistant Sessions Judge u/s 215, Criminal P.C.

It appears to us that there is no reasonable ground for holding that the High Court has no power to quash an illegal commitment at any stage of the case, as was held in Empress v. Shibo Behara (1881) 6 Cal 584 but no order quashing the commitment is necessary in the present case. The commitment was void ab initio; and although if proceedings under that illegal commitment had been actually pending at present against the petitioner, it might have been necessary, to quash them, there are now no proceedings pending which require to be quashed by any order of this Court, since the Assistant Sessions Judge himself discovered that the commitment was void ab initio; and that neither he nor any other Court had any power on those proceedings to record a judgment either of acquittal or conviction. There is nothing therefore which stands in the way of the proceeding under Ch. 18 of the Code now pending in the Court of the Subdivisional Magistrate, and this application must be dismissed.

Agarwala, J.

I agree.