VISHVAMOHAN RAGHUVIRAPRASAD TIWARI Vs. MAHADU CHAUDHARI

JUDGEMENT

(1.) ONE Vishvamohan Raghvirprasad, who was the Vive-President of the District Municipality at Dharangaon, Taluka Erandol, occupied the chair at a meeting of the General Board or the Municipality held on 23rd August 1961 since the President had not arrived at the meeting in time. The complainant Mahadu. Chaudhari was one of the councillors and he was present at that meeting. It was alleged by the complainant that in course of the proceedings at that meeting the Vice-President Vishvamohan addressed the "following words to him : "you Mahadu, what do you think of yourself? What is your worth and what is your status so that you may talk to others against me like a minor and go against our plans? I will bring down your intoxication and if you have fight in you, I will set it right. Jn case you support any action against us, I shall be able to deal with all of you. In case you become aggressive on the support of others, I will deal with you. I warn you that don't utter a single word and don't take any action, otherwise you will suffer for the same. " according to the complainant, the Vice-president further addressed him as follows:

(2.) IN support of this application, it was strenuously urged by Mr. Joshi the learned Advocate for the accused, that since the complaint could not be taken cognizance of by the learned Magistrate for want of sanction under Section 197 of the Criminal Procedure Code, as was held by the learned Magistrate, the order dismissing the complaint passed by the learned Magistrate could not possibly lie within the purview of Section 203 of the Criminal Procedure Code. Mr. Joshi urged that a complaint could be dismissed under Section 203 of the Criminal Procedure Code, where a Magistrate could validly take cognizance of a complant and on going into the truth or falsehood of the complaint, he came to the conclusion that the complainant had failed to make out a prima facie case against the accused. According to Mr. Joshi, in the present case, the very first point that the learned Magistrate had to decide was as to whether he could take cognizance of the complaint filed by the complainant in the absence of a sanction of the State Government as required by Section 197, of the Criminal Procedure Code since admittedly, the accused was a public seryant within the mean-ing of Section 21 of the Indian Penal Code, read with Section 45 of the Bombay District Municipal Act, and until it was decided by the learned Magistrate that no such sanction was necessary, he had no jurisdiction to probe further into the matter and enquire as to whether the complaint of the complainant was true or false. Mr. Joshi urged that if his contention was accepted, no revision application could lie to the sessions Court against the order of the learned Magistrate dismissing the complaint on the ground of want of sanction of the State Government but a revision application could lie only to the High Court under Section 439 of the Criminal Procedure Code and that, therefore, the order passed by the learned Sessions Judge was wholly invalid. Mr. Gambhinvala the learned Assistant Government Pleader for the State, submitted that, strictly speaking, the order of the learned Magistrate dismissing the complaint for want of sanction of the State Government could not be said to have been passed under Section 203 of the Criminal Procedure Code since that section, provided for such dismissal only in cases where in law it was competent for the Magistrate to take cognizance of the complaint and on inquiry he found that the complaint was false, or that the complainant had failed to make out a prima facie case against the accused. Mr. Gambhirwala, however, urged that although no revision application could lie to the Sessions Court against the order of dismissal of the complaint in the present case, since the matter had been brought to the notice of this Court by a revision application filed by the accused himself, this Court might as well ignore the proceedings before the learned Sessions Judge and correct the order passed by the learned Magistrate, if thought fit. In my opinion, looking to the terms of Section 197 of the Criminal Procedure Code, the learned Magistrate had first to decide the question as to whether the complaint presented to him by the complainant could be entertained for want of sanction from the State Government, and for the decision of that question, it was certainly competent for the learned Magistrate to make all possible inquiry, and if on such inquiry, the learned Magistrate was of the view that the sanction of the State Government was necessary before he could take cognizance of the complaint he should have straightway dismissed or returned the complaint without going into the merits of the complaint for the purpose of deciding the truth or falsity thereof. The learned Magistrate, however, seems to have decided the second point with regard to the truth or falsity of the complaint probably in the belief that in case the higher Court did not agree with his decision on the question of sanction, it might not be necessary for that Court to remand the complaint to him for taking action under Sections 200 to 202 of the Criminal Procedure Code. From this point of view, probably the action taken by the learned Magistrate may not be said to be wholly illegal, so that in case this Court came to the conclusion that sanction was not necessary in respect of the com-, plaint filed by the complainant before the learned Magistrate, the learned Magistrate should be directed to make a fresh, investigation with regard to the truth or falsehood of the complaint. At any rate, the order dismissing the complaint passed by the learned Magistrate cannot be said to have been made under Section 203 of the Criminal Procedure Code, and therefore, no revision application against that order could lie to the Sessions Court. The learned Sessions Judge in the circumstances, instead of interfering with the order of the learned Magistrate, should have made a Reference to this Court for necessary orders.

(3.) WITH regard to the contention of Mr. Joshi, that sanction under Section 197 of the Criminal Procedure Code was necessary before the learned Magistrate could take cognizance of the complaint of the complainant, it seems to me that the section has no application in view of the provisions of Section 23 (7) of the Bombay District Municipal Act. Before dealing with Sub-section (7) of Section 23, however, it is necessary to reproduce Section 197 (1) of the Criminal Procedure Code at this stage :