Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition No. 334 of X958, decided on 16th March 1959.
S. 196‑Object Sanction necessary in regard to "offence" as well as "offender".
If the Magistrate is allowed to take cognizance of an offence, then he should have power to take evidence for the purpose of ascertaining who the offenders are. The object of the restriction, is to enable the Government to decide whether an offence of the kind mentioned in section 196 should be tried in Court or whether it would be more in the interest of the people and the administra tion to suppress the trial, and since an offence assumes importance not only from its own nature but also from the personality of the offender, it should be in the power of Government to decide whether any particular person should be prosecuted. For, in order to obtain the sanction of Government a complainant may apply that sanction to the prosecution of certain unimportant persons may be granted, and when the sanction is granted the complainant may, during the trial, suggest to the Magistrate the names of certain other culprits whose disclosure at the initial stage might have caused the Government to decide in favour of withholding sanction. In this context, the personality of the offender cannot be divorced from the offence committed.
Mahmud Ali for Petitioner, Nemo for No. 2.
Iftikhar‑ul‑Hag for Respondent No. 1 and Said Akbar for No. 3.
The petitioner, Muhammad Khan, who is a sarbarah lambardar of village Tibba Gehli in Jhang, brought a complaint against Nazar Husain Shah and four others of village Hassu Bulail under sections 295‑A and 153‑A, Penal Code. alleging that on the 4th of October 1957, they had taken out a procession carrying an effigy bearing the name of Hazrat Umar Bin Khattab, and abusing and insulting it. This was instituted in the Court of the Additional District Magistrate at Jhang, but as the sanction of Government under section 196 of the Code of Criminal Procedure was wanting, the Magistrate dismissed the complaint. Subsequently, as a result of police investigation, four persons but not Nazar Husain Shah, were prosecuted under sections 295‑A and 153‑A, P. P. C., having been committed by the Magistrate to the Court of Session, where the accused were acquitted, apparently on the ground that the effigy purported to be that of Umar Bin Sa'ad and not of Hazrat Umar.
2. On the 8th of April 1958, while the case was still pending trial, Muhammad Khan filed the present petition for a writ of certiorari or other appropriate writ directing the Committing Magistrate to certify to this Court the record of the complaint case as also of the police challan and for a direction to the Magistrate that section 196 of the Code of Criminal Procedure being no longer goad law, he should proceed with the case notwithstanding the absence of sanction by the Government and not to discriminate between Nazar Hussain Shah and the four accused in respect of whom Government had given a sanction fog prosecution. In the alternative, there was a prayer that the Government be directed to sanction the prosecution of Nazar Husain Shah.
3. Mr. Mahmud Ali, who has now argued the petition admits that the abrogation of the Constitution as also the fact that the trial of the four persons other than Nazar Husain Shah respondent No. 2, has resulted in acquittal, has altered the complexion of the case. He has, therefore, confined his argument to the language of section 196 of the Code of Criminal Procedure and argued that this section does not prevent the Magistrate from summoning any person for trial after the Government has sanc tioned the prosecution of certain other persons. Section 196 is as follows :‑
" No Court shall take cognizance of any offence punishable under Chapter VI or IX‑A of the Indian Penal Code (except section 127 and section 171‑F, so far as it relates to the offence of personation), or punishable under section 108A, or section 294‑A, or section 295‑A, or section 505, of the same Code, unless upon complaint made by order of, or under authority from the State Government or some officer empowered by the State Government in this behalf."
The argument is that the ‑provisions of section 196 prevent the Court from taking cognizance of an " offence " not an offender, punishable under certain sections of the Penal Code without the sanction of the Government, but if once Government has sanction ed the prosecution of some persons for that offence, then the duty of the Magistrate is to find out who has committed the offence; so that if, according to the evidence before him, any person, other than Nazar Husain Shah, is found to have participated in the commission of the offence, the Magistrate should have power under section 190 to summon and try him with the other accused. He would in that case be " receiving a complaint of fact which constitute an offence " under clause (a) of section 190 or he would be proceeding " upon information received from any person other than a police officer," under clause (c).
4. On the language of section 196 the argument is attractive. because if the Magistrate is allowed to take cognizance of an offence, then he should have power to take evidence for the purpose of ascertaining who the offenders are. The object of the restriction, however, is to enable the Government to decide whether an offence of the kind mentioned in section 196 should be tried in Court or whether it would be more in the interest of the people and the administration to suppress the trial, anti since an offence assumes importance not only from its own nature but also from the personality of the offender, it should be in the power of Government to decide whether any particular person should be prosecuted. For, in order to obtain the sanction of Government a complainant may apply that sanction to the prosecution of certain unimportant persons may be granted, and when the sanction is granted the complainant may, during the trial, suggest to the Magistrate the names of certain other culprits whose disclosure at the initial stage might have caused the Government to decide in favour of withholding sanction. We cannot in this context divorce the personality of the offender from the offence committed, and, therefore, hold that section 196 cannot be invoked. After the acquittal of the other accused, it will be particularly improper to direct the prosecution of Nazar Husain Shah.
5. The petition is dismissed with costs.
M.S. Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer