BEGU SINGH Vs. EMPEROR

JUDGEMENT

(1.) The practical question which we have to consider on this reference is whether the case of In the matter of Krishna Gobinda Dutt (1905) 9 C.W.N. 859 was rightly decided. The further discussion to-day leads me to answer that question in the affirmative, notwithstanding the pessimistic opinion of the learned Judges who referred the case, that the results of such a ruling appeared to them likely to he disastrous to the administration of justice.

(2.) The question simply turns upon the true meaning and effect of Section 476 of the Code of Criminal Procedure.

(3.) The expressions in the section "is of opinion that there is ground," "committed before it or brought under its notice in the course of a judicial proceeding," seem to indicate with some clearness that it is the Judge alone who tries the case who can summarily, and at once, send the case for enquiry to the nearest Magistrate. It is a power conferred upon the Court which may be exercised summarily if an offence has been committed "before" the Court, or brought under its notice in the course of a judicial proceeding. The matter is one of procedure, but of considerable importance, and in dealing with it he must bear in mind that Secs.476 and 195 deal with different subject-matters. The Court which tries the case may proceed summarily under Section 476, or Liter on may give sanction to prosecute under Section 195. If months after the trial the Court may act under Section 476, it is difficult to appreciate the necessity of Section 195. Looking to the language of the section, it would be a strong thing to say that any one might come some months afterwards and ask another Judge who had not tried the case to exercise the summary and what I may perhaps call the immediate powers under that section; the proper course would be to proceed under Section 195. If, subsequently, an application for sanction to prosecute under Section 195 of the Code of Criminal Procedure is made to a Judge who is the successor in office of the Judge who tried the case, that sanction may be given, as was pointed out in the case of Dharamdas Kamar v. Sagore Santra (1906) 11 C.W.N. 119. But that obviously is a very different thing from asking such successor in office to exercise the summary powers given to his predecessor under Section 476. It is worthy of notice that there is no appeal from the action of the Court under Section 476: there is from an order under Section 195. Section 476 and Section 195 aim at different objects. The former gives a summary power to the Judge who tries the case to send a supposed offender to the nearest Magistrate--a power exercisable only at, or immediately after, the conclusion of the trial in which the offence is alleged to have been committed, whilst Section 195 enables an application for sanction to be made later on, as an entirely different and independent proceeding. I fail to see how this view affords a loophole for the escape of an offender, or that it is calculated to prove disastrous to the administration of justice. The Judges who decided the case of Krishna Gobinda Dutt (1905) 9 C.W.N. 859 were not wholly innocent of the distinction between the expressions "Court" and "Judge"; what they held there was that to give true effect to the whole of the language of Section 476, the expression "Court" could only mean the Judge who tried the case.