KHETRA MOHAN DAS Vs. EMPEROR

JUDGEMENT

(1.) In this referenda the material facts, which it is necessary for me to state for the purpose of my judgment, are set out at the beginning of the reference, and they are follows. On the 8th April 1919 the Munsif of Habigunj granted sanction under Section 195 of the Criminal Procedure Code to Abbas Ali, the complainant, to prosecute the petitioner, Khetra Mohan Das, for offences under Sections 181 and 193 of the Indian Penal Code. The prosecution was not instituted till the 2nd January 1920, that is, after the expiry of the period of six months mentioned in Section 195 (6) of the Criminal Procedure Code. As no order had been obtained from this Court to extend the time, the sanction must be deemed to have lapsed before that date. No objection, however, wag taken on behalf of the accused who pleaded guilty, and who was convicted under Section 181 of the Indian Penal code, and was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 20, in default to undergo rigorous imprisonment for another month. An appeal was preferred to the Sessions Judge of Sylhet, who dismissed the appeal on the ground that the sentence awarded was neither illegal nor excessive. On the application of the accused, the present rule was granted on the ground that the Court below had no jurisdiction to take cognizance of the complaint, as the sanction was not in force on the date of complaint.

(2.) The rule was granted on the authority of the case, Raj Chunder Mozumdar v. Gour Chunder Mozumdar 22 C. 176 : 11 Ind. Dec. (N. S.) 119., In that case the, Sanction which had been granted under Section 195 of the Code of Criminal Procedure was no longer in force, as the limit of six months provided by that station had expired before the commcement of the prosecution. The judgment of the learned Chief Justice and Mr. Justice Beverly, dealing with Section 537 of the Code, was as follows: "Mr. Leith has drawn oar attention to the provisions of Section 637 of the Code but that section in expressly made subject to the provisions contained, and we cannot, therefore, suppose that it was intended to override the provisions of Section 195." The learned Vakil, who has argued this case on behalf of the accused, has asked us to interpret that judgment as applicable to the particular fast a of the case which the learned Judges were considering, and his argument has proceeded upon the basis that, although Section 537 (6) would apply to a case where no sanction had ever been granted, it would not apply to a case where sanction bad been granted, but the sanction had lapsed before the proceedings were commenced. In my opinion the words of the judgment, which I have quoted, are wide enough to cover both asses, the case where no sanction has been granted and the case where sanction has been granted, and has lapsed before the proceedings began, and the question is whether we are prepared to follow that decision. It was pointed out in the reference that that decision has been questioned in a considerable number of eases both in the Madras High Court and the Allahabad High Court, and a contrary opinion was adopted in one case in this Court, Sunder Dasadh v. Sital Mahto (3) where Mr. Justice Prinsep in delivering judgment said as follows: "No doubt sanction to the prosecution should have been given before the Magistrate took cognizance of that offense, but unless the want of such sanction hap, in fact, occasioned a failure of justice (Section 537, Code of Criminal Procedure), the conviction is not bad only on that account." In one of the oases which was decided by the Madras High Court, Perumalla Nayudu v. Emperor (5), the learned Judges in delivering judgment said this: "The words subject to the provisions hereinbefore contained, which occur at the beginning of Section 537, cannot be construed in such a way as to nullify the express provision of the latter part of the section, which in Clause (b) enacts that no sentence passed by a Court of competent jurisdiction shall be reversed on appeal for want of any sanction required by Section 195" To this should be added "unless such want has in fact occasioned a failure of justice." In my judgment, without expressing any opinion as to whether the words "subject to the provisions hereinbefore contained" refer to the provisions contained in any previous part of the Code or whether they refer only to the provisions contained in Chapter XLV, they cannot be construed in such a manner as to nullify the express provisions of, Section 537 (b). Consequently, in my judgment, Section 537 (b) applies just as much to a case in which sanction has been granted under Section 195 and the sanction has lapsed owing to the period of six months having expired before the commencement of the proceedings, as it does to a case in which no sanction has been granted at all. In my judgment, in this case there was, on the date of the institution of the proceedings, a want of sanction. Consequently, I answer the question which has been referred to this Bench in this way; where a person has been sentenced upon a conviction for an offence mentioned in Section 195 of the Criminal Procedure Code, the sentence is not liable to be reversed or altered on appeal, or revision, on the ground that the sanction required by Section 195 was not in force at the time when the prosecution was instituted, unless it is established that this has in fact occasioned a failure of justice within the meaning of Section 537 of the Criminal Procedure Code. My learned brother, Mr. Justice Woodroffe, drew my attention to the fact that my learned brother, Mr. Justice Mookerjee, and I did not expressly find that there was no failure of justice in this case. In that view it is desirable to point out that the accused person, when he was charged with the offence, pleaded guilty: and, in the explanation which the learned Magistrate has submitted in answer to the Rule, he said this: "The accused cannot say that he has been unfairly affected in his defence on the merits, since he pleaded guilty in unmistakable terms and prayed for mercy." Consequently, in my judgment, there has been no failure of justice. Woodroffe, J.

(3.) My answer to the question referred to ns is in the negative, and I hold also that there has been no failure of justice. Asutosh Mookerjee, J.