EMPEROR Vs. PAJOSHI

JUDGEMENT

(1.) This is a reference from the Sessions Judge of Nasik, who has submitted the proceedings in criminal case No. 192 of 1946 in the Court of the City Magistrate, First Class, Nasik, wherein one P.A. Joshi is being tried for offences punishable under Secs.465 and 477 of the Indian Indian Penal Code". The accused made an application to the District Magistrate that the proceedings should be dropped as the previous sanction of the Governor of Bombay Was necessary under the provisions of Section 197 of the Criminal Procedure Code for his prosecution, and as such sanction had not been obtained in this case. The learned Magistrate rejected the application on April 8, 1946. The accused the reupon filed a criminal revision application in the Court of the Sessions Judge of Nasik and again contended that on the facts of this case the previous sanction of the Governor of Bombay under Section 197 of the Criminal Procedure Code was necessary. A few material facts bearing on this question may be stated. The complainant alleged that the accused, who was the Chief Officer of the Nasik Municipality, was appointed the Returning Officer by the Collector in the triennial Municipal ejections in 1945, that on October 27, 1945, he (the complainant) being a candidate for election presented his nomination paper to the accused, and that thereupon the accused made an endorsement on the said paper and said that it was accepted. Two days afterwards, that is, on October 29, 1945, the accused sent for the complainant and told him that his nomination paper was rejected, but on his appealing to the Collector to get the order of rejection cancelled he was successful and his nomination paper was accepted. The complaint of the complainant consisted in an allegation that the accused had fraudulently cancelled the order previously made by him of accepting the nomination paper and had substituted an order of rejection for the order validly made before. The complaint was, therefore, that offences punishable under Secs.465 and 477 had been committed by the accused. This complaint was filed after the election was over, at which election the complainant was successful in being elected. The learned Sessions Judge raised two points for determination, namely, whether the accused was a public servant within the meaning of Section 19 of the Indian Penal Code, and whether the alleged act was committed while the accused was acting or purporting to act in the discharge of his official duties, and he answered both these points in affirmative. Accordingly he has sent the papers in this case to us for making an appropriate order, namely, that the prosecution is invalid for the want of the requisite sanction.

(2.) The provisions of Section 197 of the Criminal Procedure Code, so far as they are material to this case, read thus: When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, is accused of any offence alleged to have committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction, in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province exercising his individual judgment.

(3.) The expression Judge has been thus defined in Section 19 of the Indian Penal Code: The word Judge denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment." The learned Judge has held that the accused was a Judge as defined in Section 19 of the Indian Penal Code. He has not regarded this case as analogous to the case of Queen-Empress V/s. Tulja (1887) I.L.R. 12 Bom. 36, where it was held that the Sub-Registrar was not a Judge and therefore not a Court within the meaning of Section 195 of the Criminal P. C.. He has followed Sarvothama Rao V/s. Chairman Municipal Council, Saidapet (1928) I.L.R. 47 Mad. 585 and Abboy Naidu V/s. Kanniappa , and come to the conclusion that the accused, at the date on which he is alleged to have committed the offence in question, was a Judge. Various arguments have been addressed to us on the interpretation of different parts of the definition of the word Judge in Section 19 of the Indian Penal Code, namely, on the interpretation of the expressions legal proceedings, civil or criminal , judgment and definitive judgment , and different authorities bearing on these questions as well as on the interpretation of analogous provisions of the Criminal Procedure Code and the Indian Penal Code have also been relied on, for instance, cases relating to the interpretation of the expression judicial proceeding used in Section 4(m) of the Criminal Procedure Code and the words Court of Justice Used in Section 20 of the Indian Penal Code. It seems to us, however, possible to decide the matter before us on a much narrower basis, and that arises out of the expression used in Section 197 of the Criminal Procedure Code, who is a Judge .