Criminal Procedure Code (CCPC) Code of Criminal Procedure (v. 1898), Article 345 (Article 21 of Indian Penal Code 420) was established on the police report, allowing the court to cover the head of the guardianship permit. Given, which is not exercised at the discretion of the court. It is true that according to section 345 (2) of the Code of Criminal Procedure under Section 420, the Indictments shall be made by the person deceiving the court with the permission of the court. Can be made, but it is an established principle: The law is that the courts should exercise their discretion with justice and recognize that it is the legislature's Nor can it be intended that the deceiver can commit such a crime on the head of the guardian when he himself is the complainant, and he is going to trial, but once the guardian has committed a criminal offense against the accused. If, even on the report of the person being cheated, it should be for the solemn pledges to either be prosecuted or withdrawn.
P. L. D. 1949 Baluchistan, 17
Before Saker J. C.
GHULAM RASUL‑Accused‑Petitioner
Versus
CROWN‑Complainant‑Respondent
Criminal Reference No. 14 of 1949 decided on 29th August 1949,under section 438 of the Criminal Procedure Code by the Sessions Judge in
Baluchistan, Quetta.
(a) Criminal Procedure Code (V of 1898), S. 190‑Magistrate takes cognizance of an offence when he applies his mind to the suspected commission of the offence.
(b) Prevention of Corruption Act (11 of 1947), S. 6‑Absence of sanction an irregularity not curable under section 537 Criminal Procedure Code.
(c) Criminal Procedure Code (V of 1898), S. 345 (21‑Case under section 420 Indian Penal Code instituted on police‑report‑Court granting permission to compound over the head of the Crown‑Permis sion, held not judicial exercise of discretion.
It is true that according to section 345 (2) of the Criminal Procedure Code an offence under section 420, Indian Penal Code can be compounded by the person cheated with the Court's permission, but it is a well established principle of law that Courts should exercise their discretion judiciously and it must be recognised that it could never be the intention of the legislature that the person cheated could compound an offence of this kind over the head of the Crown. He may do so when he himself is the complainant and is prosecuting the case, but when once the Crown has undertaken criminal proceedings against an accused person, even on the report of the person cheated, it must be for the Crown alone either to prosecute or to withdraw. [p. 19‑20]:
A. I. R. 1945 Nag. 104 referred to.
(d) Criminal Procedure Code (V of 1898), S. 439‑Order of acquittal by Magistrate passed after permitting compromise of case instituted on police‑report under section 420 Indian Penal Code ---Acquittal can be set aside in revision and retrial ordered even in absence of appeal by Local Government.
The revisional jurisdiction of this Court under section 439, Criminal Procedure Code is very wide and unfettered and permits this Court to test the correctness, legality, or even the propriety of any finding, sentence or order, I am acting in this case on my own initiative and it is clear that I am legally permitted to do so under the provisions of section 439, Criminal Procedure Code which allows this Court to sat aside an acquittal and order a re‑trial even in the absence of an appeal by the Provincial Government against an order of acquittal. [p. 20].
A. I. R. 1944 All. 137 relied on.
Order
Saker, J. C.‑---The facts of the case out of which reference under section 438, Criminal Procedure Code by the Sessions Judge in Baluchistan arises are simple and incontrovertible. In October last year, applications were invited by the Divisional Superintendent, North‑Western Railway Quetta for a number of vending contracts that were lying vacant at certain Railway Stations of the Quetta Division and a notice to that effect was inserted in the newspapers. In response to the advertisement a number of persons applied for these contracts including Muhammad Rasul and Abdur Rashid, the persons alleged to have been cheated in this case. Ghulam Rasul, a clerk of Divisional Superintendent's office, received the applications of these persons and is alleged to have recovered from them the following sums as security deposits, promising to help them in securing the contracts :‑
Rs.
Muhammad Rasul ... 500
Abdur Rashid 200 plus
500
Rs.
Total ... 700
He is said to have passed receipts for these amounts, but the money was never credited to the Government. The receipts delivered to Muhammad Rasul and Abdur Rashid bore to the accused's signature.
The matter was reported by the Divisional Superintendent to the Police and the latter, after necessary investigation, challaned the accused before the City Magistrate, Quetta on 11th December, 1948 to answer a charge under section 420 of the Indian Panel Code. It is clear that these criminal proceedings were instituted against the accused by the Crown, while the persons cheated were only witnesses. The cases were registered on the same date and the accused and the prosecution witnesses were summoned for 20th December, 1948. On this date a petition was presented by the accused and the persons cheated seeking the Court's permission to compromise the cases. The Public Prosecutor, who opposed the compromise, also put in an application stating that the accused had also committed an offence under section 5 (1) (d) of the Prevention of Cor ruption. Act. 1947 and asking the Court to add that charge. Permission, to compound the case was granted, and, on a ‑ compromise being filed, the Court passed an order on 21st December, 1948 accepting the compro mise ‑and acquitting the accused under section 345 (6) or the Criminal Procedure Code of the charge under section 420, Indian Penal Code. The proceedings were not, however, terminated as the case was fix d for 5th January, 1949 for proceedings against the accused under section 5 of the prevention of Corruption Act. On this date the attention of the Trial Magistrate was drawn to the fact that previous sanction of the authorities concerned had not been obtained by the Public Prosecutor for prosecution of the accused under section 5 of the Prevention of Corruption Act as required by section 6 of that Act. The Court on this date ordered the proceedings to be held in abeyance until the re quisite sanction was obtained. This sanction was obtained on 18th January and was filed in Court on 7tb February 1949.
A revision petition was filed before the Sessions Judge in Baluchistan by the accused challenging the propriety of the Trial Magistrate's order in proceeding with the new charge in the absence of previous sanction at the, time when the charge was brought against the accused. The Sessions Judge has now reported the matter to this Court, stating fully the reasons which have led him to make this reference and recommend ing that the orders of the Trial Court, dated 21st December, 1948 and 5th January, 1949 be set aside and the proceedings against the petitioner be terminated.
The petitioner's main argument before me is, as it was before the Sessions judge, that the orders of the Trial Magistrate dated 21st December 1948 and 5th January 1949 were bad in law, inasmuch as he had taken cognizance of the charge under section 5 of the Prevention of Corruption Act on an application of the Public Prosecutor although no previous sanction to prosecute the accused on that charge had been obtained as required by, section 6 of the same Act. The learned counsel for the petitioner, while laying considerable stress on this point, maintains that the Trial Magistrate, by entertaining the Public Prosecutor's application and adjourning the case on 5th January 1949 until such time s the requisite sanction had been obtained, had taken cognizance of the off nee. He also argues that the alleged offence under section 5 of the. Prevention of Corrup tion Act had never been investigated as contemplated by subsection 4 of section 5 of the Prevention of Corruption Act.
The Public Prosecutor concedes that the Court had taken cognizance of the charge under section 5 of the Prevention of Corruption. Act as is clear from its order of 5th January 1949.
The taking of cognizance is, as pointed out by the learned co6nsef for the petitioner, nowhere defined in the Criminal Procedure Code ; but from a number of rulings produced by the petitioner's counsel it has been described as being the occasion when the Magistrate applies his mind to the suspected commission of the offence I fully agree with this view and have no doubt that the Trial Magistrate did take cognizance of the off ,t1ce and adjourned the proceedings on 5th January 1949 in order to give time to the prosecution to obtain and produce the necessary sanction. The fact that the Magistrate ordered adjournment is, in my opinion, clear proof that he had taken cognizance of the case before the necessary sanction had been obtained as an order of adjournment is a distinct judicial action which cannot be taken by any judicial officer unless he has first taken cognizance of an offence.
It is moreover clear that the provisions of section 6 of the Prevention bf Corruption Act lay down a positive prohibition against the institution of criminal proceedings against persons mentioned in that section without the previous sanction of the authorities named, therein. I am unable to accept the argument of the Public Prosecutor that the absence of sanction can, at the utmost, be regarded only as an irregularity which is curable under section 537 of the Criminal Procedure Code. This view is definitely erroneous inasmuch as the sanction in question is unquestionably a pre requisite to the competency of a Court to entertain and deal with the proceedings instituted under section 5 of the Prevention of Corruption Act. The absence of this sanction is therefore an illegality which is not curable under section 537 of the Criminal Procedure Code.
I am accordingly of the opinion that the Sessions judge has taken a correct view of the law. I therefore accept this reference and direct that the proceedings, in so far as the charge under section 5 of the Prevention of Corruption Act is concerned, shall be regarded as terminated.
There is, however, one more aspect of the proceedings which I have noticed in the course. of my examination of the records and of which I propose to take judicial notice. In my opinion, the propriety of a com promise between the accused and the persons cheated being accepted by the Trial Court in a case of this nature appears to be very doubtful It appears from the Court's order of 21st December 1948 that the Public Prosecutor had opposed this compromise. It is true that according to section 345 (2) of the Criminal Procedure Code an offence under Section 4 0, Indian Penal Code can be compounded by the person cheated with the Court's permission, but it is a well established principal of law that Courts should exercise their discretion judiciously and it must be recognised that it could never be the intention 'of the legislature that the person‑cheated could compound an offence of this kind over the head of the Crown. He. may do so when he himself is the complainant and is prosecuting the case, but when once the Crown has undertaken criminal proceedings against an accused person, even on the report of the person cheated, it must be for the Crown alone either to prosecute or to withdraw.
The accused was a public servant and is alleged to have abused his official position. As such, the matter is clearly of great public concerned and importance and requires a thorough inquiry and trial. In this view I am supported by A. I. R. 1945 Nagpur 104.
I have beard the petitioner's counsel and the Public Prosecutor on this point. Counsel for the petitioner, referring me to the provisions of sub sections (4) and (5) of section 439, Criminal Procedure Code, argues that the revisional jurisdiction of this Court cannot be invoked in this case. I cannot accept this argument because, in the first place, I do not propose to convert a finding of acquittal into one of conviction, and secondly because the case before me is not a revision petition, by a party who could have preferred an appeal but has failed to do so. The revisional jurisdiction of; this Court under section 439, Criminal Procedure Code is very wide and; unfettered and permits this Court to test the correctness, legality, or even the propriety of any finding, sentence or order. I am acting in this case on my own initiative and it is clear that I am legally permitted to do so under the provisions of section 439, Criminal Procedure Code which allows this Court to set aide an acquittal and order a retrial even in the absence of an appeal by the Provincial Government against an order of acquittal. Similarly, in a case of conviction, this Court can, in the exercise of its revisional jurisdiction under section 439, Criminal Procedure Code, set aside the conviction and order acquittal of the accused even though no appeal was preferred by him against his conviction. The argument put forward by the learned counsel for the petitioner that an order of acquittal cannot be assailed in the absence of an appeal under section 417, Criminal Procedure Code is, in my view, an incorrect interpretation of the law. I am fully supported in this view by a Full Bench ruling of the Allahahad High Court contained in A. I. R. Allahabad, 1944, P. 137. I agree with the Public Prosecutor that this is no ordinary case of cheating ; it is a matter of great public concern and the interests of public justice demand a thorough inquiry into it in that grave allegations have been made against a public servant in the discharge of his duties
The Trial Magistrate having failed to exercise his discretion judiciously in permitting composition of the case, I direct that the order of 21st December 1948 of the Trial Court is set aside and that the case is returned for re‑trial under section 420 of the Indian Penal Code.
A. H. Retrial ordered.
Related judgments — Judicial Commissioner Court Balochistan, 1949
