RAMJIWAN MARWADI Vs. LAHIMI

JUDGEMENT

(1.) THE only objection of law pressed in this revision is one of want of jurisdiction in the Magistrate to take cognizance of the offence in the absence of sanction by the Collector under Section 70 of the Stamp Act to the institution of the complaint in this case. It will be seen that the complaint in question was received by the Sub-Divisional Magistrate on 1-5-1926. Section 190 of the Criminal P.C. lays down that Except as hereinafter provided....Sub-Divisional Magistrate...may take cognizance of any offence. (a) Upon receiving a complaint of facts which constitute such offence,

(2.) IT is not shown that the present case is excepted from the scope of Section 190. It therefore follows that as soon as the Magistrate received the complaint he must be deemed to have taken cognizance of the offence. Had he returned the complaint to the complainant for getting it endorsed with the Collector's sanction which is indispensable to the institution of a criminal prosecution for an offence under Sections 30 and 65 of the Stamp Act the matter would have been different. He retained his season over the case, and forwarded the complaint under his own endorsement to the Collector "for favour of sanction of prosecution under Sections 30 and 65 of the Stamp Act" The complaint was returned to him by the Deputy Commissioner and on receipt thereof he recorded an order under date 8-5-26 to the following effect: Read D. M.'s order dated 7-5-26. Issue a notice to the complainant to appear on 18-5-26" under his own signature. This clearly shows that the complaint. was not re-presented to him nor can it be said that he received it on 8-5-26 at the hands of the complainant after the Collector accorded his sanction to the lodging of the complaint. It is therefore idle to say that the complaint was not instituted in his Court until after the Collector had accorded his sanction to its institution. Institution of a criminal proceeding is the laying of an information before the Magistrate.' This was done as soon as the Magistrate received the complaint on 1-5-26. The subsequent according of sanction of the Collector cannot validate its invalid initiation. As the offence is mainly an offence against the Stamp law, the power] of determining whether the cognizance shall be taken by the Court of any offence punishable under the Stamp Law has been deliberately reserved to the Collector. Such a safeguard is manifestly necessary and the maintenance of this control by the Collector, of the highest importance.

(3.) NO doubt the Magistrate had stayed his hands in the matter of the trial until the sanction was granted. But I am not prepared to hold that the defect in the initiation of proceedings is capable of being cured by obtaining the necessary sanction later on at a subsequent stage of the prosecution. The absence of such a sanction was treated as fatal to the initiation of the criminal prosecution and to the conviction in Queen-Empress v. Jethmal Jagraj [1885] 9 Bom. 27 and in Emperor v. Ramji Lal [1915] 38 P.W.R. 1915 Cr.. In Queen-Empress v. Morton [1885] 9 Bom. 288 a sanction subsequently obtained was held to be of no effect for purposes of Sections 198 and 532. Criminal P.C. The same was the case in Borindra Kumar Ghose v. Emperor [1910] 37 Cal. 467 which was a case in which a complaint for an offence under Section 121 of the Indian Penal Code was made and sanction under Section 196 Criminal P.C., was held to be legally necessary for the initiation of the prosecution.