EQBAL KHAN Vs. EMPEROR

JUDGEMENT

(1.) The petitioner in this rule lodged information before the Police charging certain parsons with committing dacoit. The Police investigated the charge and found it to be false and reported the matter to the Sub Divisional Magistrate of Purneah, requesting that the petitioner might be prosecuted under Section 211, Indian Penal Code, for preferring a false charge. In the meantime the petitioner lodged a petition before the Sub-Divisional Magistrate maintaining that his information to the Police was true and asking that an enquiry might be made into the complaint. The Sub Divisional Magistrate thereupon, on the 8th of September 1916, directed that the petition should be treated as a complaint and should be inquired into judicially and on the 22nd of September, he issued processes upon the petitioner s witnesses for an inquiry to be hold on the 18th of October. On the 30th of October, when the witnesses of the petitioner were present in Court, the Sub-Divisional Magistrate transferred the case to a Deputy Magistrate directing him to inquire and pass final orders in the case.

(2.) The Deputy Magistrate thereupon made an enquiry, examined the witnesses and finally on the 4th of December 1916, dismissed the petitioner s complaint under Section 203, Criminal Procedure Code. He also added the following order: "Enter maliciously false, Section 395, Indian Penal Code. I sanction prosecution of Eqbal Khan under Section 211, Indian Penal Code. Draw up proceedings accordingly."

(3.) The petitioner thereupon appealed to the Sessions Judge. The proceedings of the learned Judge are not very intelligible, but in the result he appears to have expunged from the judgment of the learned Deputy Magistrate the following words: "I sanction prosecution of Eqbal Khan under Section 211, Indian Penal Code." If the learned Judge was under the impression that the learned Deputy Magistrate had sanctioned the prosecution of Eqbal Khan under Section 195, Criminal Procedure Code, and had also at the same time instituted proceedings under Section 476, Criminal Procedure Code, he obviously was in error. There could not in the same proceeding be a sanction and an order for prosecution under Section 476, Criminal Procedure Code, and the learned Judge s order directing that so far as the sanction was concerned the judgment of the learned Deputy Magistrate should be set aside, seems to have been totally misconceived. The fact was that the order of the learned Deputy Magistrate was nothing more or less than an order under Section 476, Criminal Procedure Code, and, therefore, the learned Judge had no jurisdiction to deal with it in appeal. The learned Judge was not competent merely upon the consent of the Government Advocate to expunge certain words from the order. If the order was one under Section 476, Criminal Procedure Code, the learned Judge had no jurisdiction. If it was one under Section 195, then the learned Judge had jurisdiction and in clear terms should have declared whether the proceedings against the petitioner were quashed. The learned Judged proceeding, however, does not materially affect the matter now before me. Treating the order of the learned Deputy Magistrate as an order under Section 476, Criminal Procedure Code, the question that I now have to determine is whether that order was made with jurisdiction.