ISMAIL KHAN Vs. KING-EMPEROR

JUDGEMENT

(1.) The appellant Ismail Khan has been convicted by the Chief Presidency Magistrate of Calcutta under Section 19 (f), Arms Act (11 of 1878) and sentenced to two years rigorous imprisonment. The first and the only substantial ground taken on his behalf is that proper sanction not having been obtained before the proceedings against the petitioner were instituted, the trial and the conviction are bad in law. The facts of the case are that the prosecution inspector on receipt of certain information arrested the accused, with a pistol and 23 live cartridges, in the presence of search witnesses on Prem Chand Boral Street about 7 p.m. on the 6 September last. Thereafter he took the accused to the Muchipara police station and entered a case against him under the Arms Act and searched his house. The charge was entered in the crime sheet. Sanction was secured on the 7 and the man was then sent up with a chalan and placed before the Court. The argument on his behalf is that under Section 29, Arms Act, no proceedings should have been instituted again3t the accuse without the previous sanction (in this case) of the Commissioner of Police. It is urged that entering a case in the ca3e-book and making out a charge is institution of proceedings under Section 29 and therefore the absence of proper sanction previous to the entry in the thana book has vitiated the entire trial. We do not think that this argument has any substance in it. Section 29 says that no proceedings should be instituted against any par3on in respect of an offence under Section 19(f). Arms Act, without the sanction of the Commissioner of Police, if the offence is committed in a presidency town. The meaning which is sought to be attached to the word "proceeding" is that no action can be taken by any officer, police or otherwise, in the matter without a previous sanction of the Commissioner of Police. It is difficult to sea what the arresting inspector was expected to do in the circumstances of this case; but it is suggested that ha might, if the offence was a cognizable one, have taken the accused into custody and, without entering a charge in the diary book, asked for the sanction of the Commissioner of Police and on receipt of it made the necessary entries in the station books. We feel no hesitation in saying that this argument is far fetched and that it has never been the intention of the legislature to lay down such an awkward procedure and make the prosecution open to the charge that no entry equivalent to a first information was made immediately after the arrest.

(2.) In support of the view urged on behalf of the appellant reliance has been placed on the Full Bench decision of this Court in the case of Karim Buksh V/s. The Queen-Empress [1890] 17 Cal. 574. There it was held that the lodging of a false information with the police of a cognizable offence is instituting a criminal proceeding within the meaning of Section 211, I.P.C., Wilson, J., who delivered the judgment of the Full Bench, took particular care to say that the meaning which he gave to the words "institution of criminal proceedings" in Section 211, I.P.C., must be limited to the scope of that section. No analogy can be drawn by putting Section 211, I.P.C., alongside Section 29, Arms Act, which deals with totally different matters. Under Section 211, I.P.C., the complainant is said to institute a proceeding if he prefers a the charge of a cognizable offence to the police who are expected to move in the matter, and if they are satisfied that there is a prima facie case against the accused will send him up for trial. It was pointed out in that case that there are two sorts of institutions of criminal proceedings : one was by giving information to the police which would in all probability move them into action and the other by filing a complaint in Court with the idea that the Court will take action in the matter. In either case the police or the Court may refuse to proceed further but the complainant has done all he could to charge his adversary with the alleged offence. It was in this view held that making a false charge to the police of a cognizable offence is the institution of criminal proceedings within the meaning of Section 211, I.P.C.

(3.) In a sister piece of legislation, that is, the Explosive Substanee3 Act, a similar sanction is provided for by Section 7 of Act 6 of 1908. Section 7 of that Act runs as follows: No Court shall proceed to the trial of any person for an offence against this Act except with the consent o? the local Government or Governor-General in Council.