PONNU KUDUMBAN Vs. STATE

JUDGEMENT

(1.) THIS is a petition to quash the committal of the 69 accused by the Special Assistant First Class Magistrate, Tirunelveli. 97 persons were charge-sheeted for offences under Sections 120-B, 121-A, 153, 117, 148, 149, 201, 324, 326, 364, 302, 307, 395, 457 and 380, I. P. C. ; and also for offences under Sections 3 to 6, Indian Explosive Substances Act, Section 126, Indian Railways Act, Section 25 (c), Indian Telegraph Act and Section 19 (f), Indian Arms Act. Of the persons charge-sheeted, ten were absconding and the enquiry therefore went on against the rest, the case against the absconders being separated. Of the 87, the learned Magistrate discharged 18 and committed the petitioners herein. They have been committed to take their trial, in the sessions-for offences under Sections 120-B, 121-A, 147, 148, 149, 302, 307, 324, 326, 380, 397, 457, I. P. C. and Sections 3 and 4, Indian Explosive Substances Act, Section 126, Indian Railways Act and Section 19 (f), Indian Arms Act.

(2.) THE main point that is taken to quash the committal is that the offences under Sections 120-B and 121-A, I. P. C. were taken cognizance of even prior to the filing of the complaint under the orders of the local government. What happened in this case was this: the preliminary charge-sheet was filed before the District Magistrate on. 58-1950. Sanction to prosecute these accused for offences under Sections 120-B, 121-A and 153-A was asked for and it was granted only in respect of offences under Sections 120-B and 121-A, I. P. C. on 3-1-1951. Thereupon, a complaint with the sanction order enclosed was preferred on 31-3-1951 along with the final charge sheet in the case. The District Magistrate then transferred the case in the first week of April to the Special Additional 1st Class Magistrate who has committed these accused. The above facts show that even at the time when the present Magistrate who has committed these petitioners, took cognizance of the offence the sanction had already been obtained and a complaint had also been filed in compliance with the provisions of Section 196, Cr. P. C. But it is contended that at the time when the preliminary charge-sheet was filed before the District Magistrate, which was also for offences under Sections 120-B, 121-A and 153-A, I. P. C. the District Magistrate took cognizance of them without a complaint and sanction, contrary to the provisions of Section 196, Cr, P. C. The complaint and sanction were subsequent to taking cognizance and it is not in compliance with the mandatory provisions of Section 196 and so the whole proceedings including the transfer to" the present Magistrate and the committal are illegal. It is on this point of law that the whole committal is sought to be quashed.

(3.) THAT in respect of offences under Sections 120-B, 121-A a complaint by the order of or under the-authority of the State Government is prerequisite-to the court taking cognizance of them is clear from the mandatory provisions of Section 196, Cr. P. O. A Bench of our High Court has held in 'varadarajulu Naidu v. Emperor' AIR 1920 Mad 928 (SB) (A) that the sanction given after the filing of the complaint does not fulfil the requirements of Section 196, Cr. P. C. The learned Judges followed a decision of the Calcutta High Court in-' barindrakumar Ghose v. Emperor', 37 Cal 467 (B), where it was held that the defect of not filing the sanction along with the complaint was not cured by subsequently obtaining the sanction and filing it, when the case was before the Sessions court. This contention is conceded by tile prosecution. The only question, therefore, is whether the District Magistrate took cognizance-of these offences prior to sanction and complaint and if so. whether the present proceedings before-the Special Additional 1st Class Magistrate, Tirunelveli, are void.