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Criminal Revision No. 31 of 1960, decided on 5th October 1960.

, S. 561‑A‑"Abuse of process of Court"‑Inordinate delay in prosecution of public servant for want of sanction‑On application under section 561‑A proceed ings quashed and accused discharged‑Fresh proceedings after obtaining sanction‑Not competent‑Criminal Procedure Code (V of 1898), S. 403.

The prosecution of the accused, a public servant, was kept pending for a long time on account of want of sanction. The accused, therefore, moved a petition under section 561‑A, Criminal Procedure Code, 1898 and the High Court quashed the proceedings and discharged the accused. Subsequently the necessary sanction was obtained and a fresh complaint on the same fact was filed against the accused. The accused raised the objection that as the previous proceedings had been quashed by the High Court, a fresh prosecution for the same offence was not competent. In reply it was argued that as the order quashing the previous proceedings amounted to one of discharge and not of acquittal fresh proceedings on same facts were competent:

Held, it is no doubt true that when the proceedings were quashed by the High Court the accused was discharged and not acquitted for the offence for which he was prosecuted, but the circumstances of the case showed that it was certainly not the intention of the Judge that fresh proceedings for the same offence should be allowed to be brought against him. Therefore, to allow fresh proceedings to be instituted would not only nullify the High Court's order quashing the proceeding but would constitute a glaring abuse of process of law.

M. Iqbal for the State.

Respondent present in person.

Date of hearing : 5th October 1960.

.‑The facts leading up to this revision petition by the State are that before the integration of the Province of West Pakistan the respondent was a clerk in the office of the Accountant‑General, Punjab. In July 1953 three cases in connec tion with the alleged passing of forged bills were brought against him and others and remained under investigation for more than two years. The challans were submitted by the investigating officer to the prosecution agency on the 9th of October 1955 and remained with that agency till the 26th of April 1956, when they were put up in the Court of the Additional District Magistrate, Lahore, with the report that although the sanction of Government to the prose cution of the respondent's co‑accused had been obtained, sanction for the prosecution of the respondent himself had not yet been received from the Central Government. The challans remained pending with the Additional District Magistrate till the 25th of July 1957, when they were directed to be placed before a Special Judge. The case, however, did not proceed before the latter in the absence of sanction for the prosecution of the respondent, who eventually filed three Miscellaneous Petitions, Nos. 1335 to 1337, of 1957, in this Court praying that the proceedings against him be quashed and he be discharged.

2. On the 9th of December 1957 Kaikaus, J. passed an order, the relevant portion of which runs‑----

"Considering the great delay that has taken place with respect to the grant of sanction, I do not think these cases should be allowed to proceed against the petitioner. As far back as December 1956, an order had been passed by a Division Bench of this Court on an application by a co‑accused of the petitioner hoping that the Central Government will speedily decide the question of the sanction of the petitioner. I myself granted a week's adjournment to enable the prosecution to secure the sanction of the petitioner. I am informed by learned counsel for the State that the District Magistrate, Lahore, has written to the Central Government for grant of sanction. I do not think any further time should be granted for this purpose. It appears to me that the Central Government has not yet been able to make its mind for at least more than two years. The letter which was sent by the Additional Chief Secretary to the Central Government also does not itself recommend a grant of sanction and simply says that if it is a fit case, sanction may be accorded. In any case, the proceedings which are pending against the peti tioner in all these three cases being without sanction should not be allowed to continue. The proceedings are quashed and the petitioner discharged."

3. After the passing of the above order the State obtained the sanction of the appropriate Government for the prosecution of the respondent and filed a fresh case (Special Case No. 104/2 of 1959) which was registered in the Court of Mr. Ghazanfar Husain, Special Judge, Lahore, on the 11th of July 1959. The respondent raised the objection that as the previous proceedings had been quashed by this Court, a fresh prosecution for the same offence was not competent. It appears from the record that the Second Public Prosecutor, Lahore, submitted a report to the learned Sessions Judge on the 23rd of June 1959, holding the same view as was later advanced by the respondent in his objection, but that the learned Advocate‑General was of the opinion that as the order quashing the proceedings was tantamount to one of discharge and not of acquittal, fresh proceedings on the same facts were competent.

4. On the 28th of July 1959 the learned Special Judge held that he could not proceed with the case, the relevant portion of his order running‑----

"The question is whether in the presence of this order this Court can proceed with the case and the accused can be retried. The opinion by the learned Advocate‑General as expressed by the learned P. P. is based on section 403, Cr. P. C. explanation of which lays down that the dismissal of a complaint or the discharge of an accused is not an acquittal for the purpose of the section and a fresh prosecution is not barred in such a case. The word discharge' as contemplated under section 403, Cr. P. C. relates to the discharge of an accused person by a Magistrate. The jurisdiction of the High Court under section 561 (sic) Cr. P. C. which the Court exercises in hearing and determining the application made to it, is derived by it not from any provision of the Criminal Procedure Code but is inherent in it by virtue of its constitution as the highest Court of the criminal jurisdiction of West Pakistan. In my opinion under these circumstances when the proceedings are quashed and the accused is discharged by the High Court under section 561‑A, Cr. P. C., he cannot be retried if subsequently sanction is obtained as ' contemplated in section 403, Cr. P. C. Consequently I cannot proceed with this case. The accused stands discharged as already ordered by the High Court and the case shall be struck off from the file of this Court,"

5. We have no hesitation in endorsing the view taken by the learned Special Judge in the above order. It is no doubt true that by the order of Kaikaus, J. the respondent was discharged, and that consequently he cannot be said to have been acquitted for the offence a for which he was prosecuted, but the circumstances of the case leave no doubt that it was certainly not the intention of the learned Single Judge that fresh proceedings for the same offence should be allowed to be brought against him. It is abundantly clear that the reason for quashing the proceedings was the inordinate delay that had taken place in procuring the sanction of the appropriate Government. The record further shows that the fresh challan was not drawn up till the 29th of March 1959, more than fifteen months after the passing of the order of discharge by this Court and nearly six years after the commission of the alleged offence. In these circumstances, to allow fresh proceedings to be instituted would not only nullify this Court's order, but would in our opinion le constitute a glaring abuse of the process of law.

6. For the above reasons we uphold the order of the learned Special Judge and dismiss the petition, which in our opinion should never have been filed.

K. B. A. Petition dismissed.

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