Nagu Servai vs Emperor

Bardswell, J.—The Joint Magistrate of Devakottah made a complaint against two persons of an offence punishable u/s 188, I.P.C., for

having disobeyed orders passed in proceedings u/s 145, Criminal P.C. The present petitioner, who is one of the two persons complained against,

applied to the District Magistrate of Ramnad to have the complaint withdrawn but the District Magistrate without giving notice to the petitioner

dismissed his petition summarily. It is contended by Mr. Jayarama Ayyar on behalf of the petitioner that the application to the District Magistrate

for the withdrawal of the complaint was an appeal and that under the proviso Clause (1), Section 421, Criminal P.C. it should not have been

summarily dismissed without giving the petitioner or his pleader an opportunity of being heard. A number of decisions of this Court have been

quoted with reference to Clause 6 of Section 195, Criminal P.C., 1898. These decisions, however do not apply and are not of great importance as

the present Code has very much varied the law u/s 195 and the connected sections from what it was formerly. u/s 195 of the old Code, no Court

could take cognizance of certain offences committed against a public servant except with the previous sanction or on the complaint of the public

servant concerned or of some public servant to whom he was subordinate.

This was provided for by Sub-section (1)(a). By Sub-section (1)(b) and (c), no Court could take cognizance of certain other offences except

with the previous sanction or on the complaint of a Court, and by Sub-section (6) it was provided that any sanction given or refused u/s 195, might

be revoked or granted by any authority to which the authority giving or refusing it was subordinate. It was held in Palaniappa Chetty v. Annamalai

Chetty (1904) 27 Mad. 223, that under Sub-section (6), a party had the right to put in a petition by way of appeal and in Muthuswami Mudali v.

Veeni Chetty (1907) 30 Mad. 382, the right of appeal in such a case was also declared, though in another Full Bench case, Bapu v. Bapu AIR

1916 Mad. 110, it was held that the powers u/s 195, Sub-section (6) were not part of the appellate and revisional jurisdiction conferred by Chs.

31 and 32, Criminal P.C. but were by way of being a ''special power conferred by the sub-section. Under the present Code sanction to prosecute

can no longer be given u/s 195, but there can only be a complaint either by a public servant with reference to Section 195(1)(a), or by a Court in

the case of offences referred to in Section 195(1)(b) and (c), the complaint having to be in writing in every case. In the case of complaints given u/s

195(1)(b) and (c) it is now specifically provided by Section 476(b) that there can be an appeal. Under the old Code in Section 195(6) which no

longer exists, the word ""appeal"" was not at all used. Now a right which in definite language is a right of appeal is given in the case of a complaint

made by a Court and the appeal has to be to the Court to which the Court that makes the complaint is subordinate within the meaning of Section

195(3), that is, the Court to which appeals ordinarily lie. It has been held by a Full Bench of this Court in Janardana Rao v. Lakshmi Narasamma

AIR 1934 Mad. 52, that in dealing with appeals u/s 476-B, the power of dismissal is derived from Ch. 31, Criminal P.C. In that decision Section

423 was referred to, but it can equally be taken that there is a right of summary dismissal derived from Section 421.

Mr. Jayarama Ayyar has argued with reference to the old decisions as to Section 195(6) that even an application to a superior authority for the

withdrawal of a complaint made in accordance with Section 195(1)(a) is an appeal and that to it also must be applied the provisions of Sections

421 and 423 in Ch. 31. As I have said however the position is now very different from what it used to be. u/s 195(6) of the old Code the superior

authority might either grant a sanction or might refuse it, but now that sub-section no longer exists, and instead of it we have Sub-section (5) which

only allows the withdrawal of a complaint made by a public servant by another public servant to whom he is subordinate and does not allow a

complaint to be made by a superior authority when a lower authority has declined to make one. Not only then is the word ""appeal"" not used in

Sub-section (5), as it is used in Section 476-B, but also the powers given to a superior public servant have been very much restricted. I have been

referred to two authorities on this point. One of these is a decision of the Patna High Court in Kantir Missir Vs. Emperor, , in which it was held that

the withdrawal of a complaint u/s 195(5) was an administrative act and one which could not be interfered with by a judicial tribunal. In that

particular case however the complaint had been made by a police officer and his complaint could hardly be regarded as a judicial act.

In the case now under notice sanction was given for disobeying an order passed by a Court u/s 145 and ifc has been held in Arunachalam Pillai

v. Ponnuswami Pillai AIR 1919 Mad. 610, in the case of sanction to prosecute for disobeying an order passed u/s 144, Criminal P.C., that as the

order disobeyed was that of a Court, the sanction to prosecute for disobedience of it must proceed from a Court and was of the nature of a

judicial act. Similarly in the case under notice, I must take it that the filing of the complaint by the joint Magistrate was a judicial act and that any

application to the District Magistrate to have the complaint withdrawn was asking the District Magistrate to exercise his judicial discretion. The

view taken by the High Court in Rangoon in P.J. Money v. Emperor AIR 1928 Rang. 296 is that a petition for the withdrawal of a complaint made

u/s 195(1)(a) is not by way of appeal but is one by way of revision. With this view I would with all respect agree. I take it then that the application

by the petitioner to the District Magistrate was an application in revision. The dismissal of it was to the prejudice of the petitioner, one of the

persons complained against u/s 439(2); such an order should not have been passed to his prejudice without his being heard either personally or by

pleader. The order of the District Magistrate summarily dismissing the petition of the petitioner for withdrawal with, out giving notice was therefore

improper. It is set aside but the District Magistrate will restore the petition to file and dispose of it after giving notice of it to the petitioner.

A question has been raised as to whether the petition for withdrawal should have been made to the Sessions Judge or to the District Magistrate.

An appeal was presented to the Sessions Judge of Ramnad against the order of the joint Magistrate that a complaint should be filed. The Sessions

Judge dismissed the appeal holding that no appeal lay. In the light of what I have stated above I am of opinion that the order of the Sessions Judge

was correct and that the proper procedure was to petition to the District Magistrate to make use of his powers in revision, Criminal Revision Case

No. 245 of 1934, against the decision of the Sessions Judge, is therefore dismissed.