Sukhdeo Missir vs Monoolall Sahu

Atkinson, J.—The petitioner Sukhdeo Missir seeks in this application to have the order of the District Magistrate of Purnea, dated the 7th January 1919, set aside.

The order of the District Magistrate was an order u/s 195 of the Code of Criminal Procedure granting sanction for the prosecution of the petitioner with another u/s 211 read with Section 109 of the Indian Penal Code,

It appears that the petitioner and one Mahabir Sahu instituted a suit against one Manoo Lal Sahu for wrongful confinement and extortion of money. The suit was dismissed and Monoo Lal Sahu applied to the learned Sub Deputy Magistrate who tried the case for sanction to prosecute Mahabir Sahu and Sukhdeo Missir u/s 211, Indian Penal Code.

The learned Sub-Deputy Magistrate on the 23rd November 1918 declined to grant the sanction applied for. Accordingly Monoo Lal Sahu applied to the District Magistrate of Purnea for sanction to prosecute the petitioner and Mahabir Sahu; and the learned Magistrate, by the order to which I have referred, granted the sanction in the form requested by the petitioner before him.

The learned District Magistrate, however, passed the order of the 7th January 1919 without serving any notice upon the parties to be affected thereby requiring them to show cause why such sanction should not be granted.

Strictly speaking, in my opinion on the true interpretation of Section 195 of the Code of Criminal Procedure the service of a notice upon the person against whom a sanction to prosecute is applied for is not essential as a legal necessity to validate a sanction granted by the authorities specified in Section 195.

The trend of authority seems to be in favour of this view. The rulings in support of this conclusion are reported as Queen Em-prees v. Sheik Beari 10 M. 232 (F.B.) : 2 Weir 181 : 3 Ind. Dec. 914, In Re: Govindu 26 M. 592 : 2 Weir 297, Mangar Ram v. Behari 18 A. 358 : A.W.N. (1896) 113 : 8 Ind. Dec. 945, Inayat Ali v. Mohar Singh 28 A. 142 : A.W.N. (1905) 231 : 2 Cri.L.J. 598, In Re: Bal Gangadhar Tilak 4 Bom. L. R 750, Emperor v. Tabarak Zaman Khan 30 A. 52 : A.W.N. (1907) 288 : 4 A.L.J. 790 : 6 Cri.L.J. 396 and Krishnanund Das v. Han Bern 12 C. 58 (F.B.) : 6 Ind. Dec. 40.

No doubt although notice is not legally essential to validate a sanction granted u/s 195, nevertheless in common moral propriety it is desirable as a matter of practice and prudence and in common fairness that a person who is sought to be prosecuted should have notice of the fact that an application has been made for his prosecution under the provisions of Section 195, Criminal Procedure Code, and it is in accordance with the traditions of the administration of justice that such person should be permitted to show cause against the grant of sanction for his content plated prosecution.

The learned District Magistrate failed in this case to give the petitioner notice of the application for sanction made to him; but, in my opinion, that omission, although it may have been improper, was not an illegality which wholly vitiated his order, sanctioning the prosecution of the petitioner for an offence u/s 211, Indian Penal Code.

Monoo Lal Sahu instituted criminal proceedings against the petitioner and Mahabir Sahu on the 15th March 1919 u/s 211 read with Section 109 of the Indian Penal Code.

The petitioner was arrested owing to his non-appearance under a warrant and brought before the Court. The petitioner alleges that this was the first time that he became aware that sanction for his prosecution had teen granted. The petitioner was admitted to bail and from time to time thereafter he seemed to recognise that the Criminal Court was legally and properly seised of the prosecution against him, because he applied from time to time for adjournments; and it was not until the 14th of May that an application was filed by the petitioner asking for time, when for the first time he expressed his intention to apply to the High Court to quash the order sanctioning his prosecution dated the 7th January 1919. Eventually on the 27th May the petitioner applied to two Judges of this Court, who directed that notice should issue with a view to setting aside the order of the District Magistrate and staying proceedings in the criminal matter pending the disposal of this application.

In my opinion to grant this petition would serve no useful purpose. If indeed the sanction had been granted owing to some technical legal error, I would have yielded to the argument of Mr. Varma. However, inasmuch as only a moral impropriety in the manner and method of procedure has been committed, I do not feel justified now, having regard to the very great lapse of time that has taken place, in staying the criminal proceedings that have been instituted from continuing, by setting aside the order sanctioning the petitioner''s prosecution. In my opinion the petitioner acquiesced in the order that was made and between the 6th of April and the 14th of May he never suggested directly or indirectly that any infirmity attached to the order of the learned District Magistrate.

The petitioner seeks to justify his delay in applying to this Court from the 6th of April to the 27th May on the ground that he was seriously ill, Beyond this loose and general statement referred to in the petition and corroborated by the affidavit to the petition, there is no evidence to show what was the ailment the petitioner was suffering from, nor has any medical evidence been adduced to Show that the petitioner was in fact ill.

Giving due consideration to the various topics addressed to me by the learned Counsel appearing on behalf of the petitioner, I am satisfied that this is not a proper case in which I should set aside the order sanctioning the petitioner''s prosecution. Accordingly I refuse this application.