In Re: R. Charman Nadar

Ramakrishnan, J.—The learned Assistant Judge of Tuticorin has made this reference to this Court under Sections 215, 438 and 439 of the Code of Criminal Procedure for quashing the committal of the accused in P.R.C. No. 8 of 1963, for an offence u/s 211 Indian Penal Code. Notice of this reference was given to the interested parties but there was no appearance on their behalf in this Court. I heard the learned Public Prosecutor, who, however, does not support the reference.

One Mariamma, wife of Sannasi of Ettayapuram, died on 4th July 1962, under suspicious circumstances. Charman Nadar, a prominent man of the locality, made a complaint to the Police on 4th July 1962, charging Sannasi and others with the offence of murder. The Police investigated the complaint and found it to be false. Then the Police filed a complaint against Charman Nadar Wore the Sub-Divisional Magistrate, on 1st November 1962, for an offence u/s 211, Indian Penal Code. This was transferred to the Sub-Magistrate of Koilpatti who took it on his file as P.R.C. No. 37 of 1962 oh 1st December 1962. Charman Nadar, the accused, was provided with a copy of this complaint on 14th December 1962. On 18th December 1962 Charman Nadar preferred a protest petition before the Sub-Magistrate, Koilpatti, which was taken up by him on his file and numbered as P.R.C. No. 39 of 1962. He dismissed P.R.C. No. 39 of 1962 u/s 203, Code of Criminal Procedure, on 31st December 1962. On the same day he passed orders in P.R.C. No. 37 of 1962, discharging the accused therein. This, latter order of discharge was revised by the learned District Magistrate, who set aside the order of discharge and remanded the case to the file of the Sub-Magistrate, Tuticorin, for further enquiry. This Sub-Magistrate continued the enquiry and committed the accused to take his trial in the Court of Session for offence u/s 211, Indian Penal Code. This case came up before the Assistant Sessions Judge, Tuticorin for trial. It was in the course of that trial that the learned Assistant Sessions Judge has made the present reference for quashing the committal.

The learned Assistant Sessions Judge, in course of his order, has referred to several decisions both of this Court as well as other High Courts and he has also relied upon the dictum laid down by Jackson J., in Murugan and Others Vs. Gutha Rami Naidu, u/s 215, Code of Criminal Procedure, this Court can quash a committal made by the Magistrate only on a point of law. The point of law mentioned by the learned Assistant Sessions Judge is that the complaint in the present case is hit by Section 195(1)(6), of the Code of Criminal Procedure, as it was filed without the sanction of the Court before which Charman Nadar had filed the protest petition, in which the merits of the complaint filed by him were being enquired into, for determining whether actually a case of murder had been made out or not. According to the accused Charman Nadar, the present complaint for an offence u/s 211, Indian Penal Code, required the sanction of the Court before which P.R.C No. 39 of 1962 was pending and in the absence of such a sanction, the present prosecution is invalid in law.

Taking up first, Murugan and Others Vs. Gutha Rami Naidu, the point to note is that in that case the Police had made a report that a complaint made about an offence of theft was false and the Magistrate was asked to strike off the case from his file. The complainant being apprised of the fact, he filed a complaint before the Sub-Magistrate. The Magistrate allowed the prayer of the Police to strike off the case from his file but passed no further orders on the complaint filed by the complainant. It was during the pendency of this complaint before the Magistrate that the complainant was charged with having falsely accused certain persons with the offence of theft before the Village Headman, an offence punishable u/s 211, Indian Penal Code. The learned Judge, Jackson J., observed that it would be a most extraordinary result if while the Magistrate was still engaged in trying a complaint and possibly inclined to believe the complainant, the complainant could himself be put into the dock in another proceeding on the allegation that he had preferred a false charge to the Police. The sequence of dates thus referred to is important in the context of the sanction u/s 195(1)(6), Code of Criminal Procedure. In Re Parameswaran Nambudri ILR (1915) Mad. 677 decided by a Bench of this Court, Ayltng J., observed at page 679:

It is of course necessary that the " proceeding in any Court " referred to in the clause should be actually instituted before the Criminal Court is asked to take cognizance of the offence. If it is not, there is nothing in Section 195 to prevent the Court from taking cognizance of the case and once the Court has lawfully taken cognizance of the case, its jurisdiction is not affected by the subsequent coming into existence of a circumstance which would have barred its jurisdiction, if it had existed at the time of institution.

Similarly, in Sukumar Banerji Vs. Rajeswari Debi, the Police reported a case to be a false one and prayed for prosecution of the accused u/s 211, Indian Penal Code. After that complaint of the Police was filed and when the accused was called upon to show cause against prosecution, the accused filed a narazi petition or revision petition in which the merits of the case were enquired into. In such a context, the Court observed that there could be no doubt that the effect of the decision in Brown v. Ananda Lal Mullick ILR (1916) Cal 650 was that if the complainant after the Police had submitted a final report, had filed a complaint before the Magistrate, sanction of that Magistrate would be necessary before he could be put upon his trial. The Patna High Court in Paramanand Brahmachari v. Emperor (1929) 30 Cri. L.J. 554 observed (at page 555).

It is impossible to hold that when a Magistrate has taken cognizance of a complaint anything that can subsequently happen will suffice or anything in Section 195(1)(b) can operate to deprive him of jurisdiction to proceed thereon in accordance with law.

The above decisions make it clear that where the Magistrate had already taken cognisance of the complaint u/s 211, Indian Penal Code and after that stage if the accused moves the Court in a Revision Petition for enquiring into the truth of his complaint, there will be no question of the former complaint being hit by Section 195(1)(6), Code of Criminal Procedure and no sanction of the Court which has taken cognizance of the Revision Petition will be necessary to validate the further proceedings under the earlier complaint. I, therefore, consider that there is no case made out for quashing the committal in this case. The learned Assistant Sessions Judge, will proceed with the trial of the case and dispose of it according to law.