In Re: Ponnuswami Thevar and Another

The complainant came before the Sub-Divisional 1st Class Magistrate, Usilambatti, with a complaint, alleging that the 2nd accused, one member

of the Village Panchayat Court lately established in his village under Act II of 1920, approached the 1st accused to persuade him to give his vote

for the presidentship of the court in his favour and that he eventually paid Rs. 250 to the 1st accused, which the latter accepted. On these

allegations the complainant charged the 1st accused with committing an offence punishable u/s 161, I. P. C. and the 2nd accused with abetment

thereof. The Magistrate returned this complaint not with reference to the Indian Penal Code, but to Act XXXIX of 1920, observing that the

offence more properly fell u/s 171, E. I. P. C. as amended by that Act. than under the general section relating to bribery, 161, I. P, C and that,

when the allegations in a complaint fall under a particular section of law, it is not proper to take them under a general section under the same or any

other law. He then said that the prosecution for an offence u/s 171 E. required the sanction of the Local Government, and returned the complaint

for want of such sanction.

We are not concerned at present to decide whether the Magistrate''s action in returning the complaint and not dismissing it was in accordance

with law. The case has been submitted to us by the learned Sessions Judge on the ground that Section 171 E will not apply to this case. That point

has been argued at considerable length by the learned Public Prosecutor; but we need not, we think, decide it at present. For, in fact, whether the

accused is charged u/s 171 E or Section 161 I.P.C. the sanction of the Local Government or other authority for his prosecution is essential, in the

former case with reference to the amendment of Section 196, Criminal Procedure Code effected by Section 3 of Act XXXIX of 1920 and in the

latter with reference to Section 197 of the Criminal Procedure Code. See also Act II of 1920, Sections 19, and 21 1. P. C. as justifying the

description of a member of Village Panchayat as a Judge.

It is then material that in our opinion the Sub-Divisional Magistrate had no right to disregard the fact that the complaint was made by the

complainant u/s 161 I.P.C. That section has not, as far as we have been shown, been repealed by anything in Act XXXIX of 1920 and is still in

force. If the complainant can establish the accused''s responsibility under it, there is nothing in law to prevent his doing so; and we do not know

how the Magistrate can claim any discretion to insist in such circumstances on a complainant proceeding under one of two sections, either of which

may apply to the facts he alleges, rather than under the other. In the circumstances there is no ground for our interference in what has happened.

Whether this complaint proceeds u/s 161 or Section 171 E, I. P. C. he will require a sanction. It is for him to obtain such sanction as he may be

advised and to institute proceedings again with it.