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1913 DIGILAW 258 (ALL)

Ochhan v. King-Emperor

1913-07-16

TUDBALL

body1913
JUDGMENT : Tudball, J. The facts, out of which this application has arisen, are briefly as follows:— The applicant went to a Police officer and preferred a charge of theft against one Puttu Singh. The police sent up Puttu Singh for trial before a Magistrate. The Magistrate held that the charge was false and acquitted Puttu Singh. The Superintendent of Police, after making enquiries, made a complaint against the applicant that he had preferred a false charge against Puttu Singh to the police. The District Magistrate entertained the complaint and made it over to another Magistrate for trial. That Magistrate tried and convicted the applicant and sentenced him under section 211 of the Penal Code, 1860 to eighteen months' rigorous imprisonment. At his trial the applicant did not raise any question as to the want of any necessary sanction. He appealed to the Sessions Judge who has upheld the conviction and sentence. It was there pleaded for the first time that the sanction of the Joint Magistrate who tried the original case, was a sine qua non for the trial and being totally absent, the Magistrate had no jurisdiction. The learned Sessions Judge in view of the clear, plain terms of section 537 of the Code of Criminal Procedure and in view of the fact that the appellant before him had not raised the question at his trial and also in view of the fact that the accused had not been in the slightest degree prejudiced in his trial, held that it was unnecessary to interfere on the point, the case against the accused being amply proved. The first ground taken in revision in this Court is that no sanction having been given by the Sub-Divisional Magistrate no court could take cognizance under section 195 and that this is an illegality and not a mere irregularity. It seems to me that the clear language of section 537 is a complete answer to this plea. That section clearly and distinctly says that, subject to the provisions hereinbefore contained no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of the want of any sanction required by section 195. Section 537 contemplates not only irregularities, but errors and omissions. That section clearly and distinctly says that, subject to the provisions hereinbefore contained no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of the want of any sanction required by section 195. Section 537 contemplates not only irregularities, but errors and omissions. The present case is a case of omission and the explanation of the section is to the effect that in determining whether any error or omission or irregularity has occasioned a failure of justice the court should have regard to the fact whether the objection could and should have been raised at an early stage of the proceeding. The District Magistrate acted upon the complaint of the Superintendent of Police but as the case had come into court and had been the subject of a trial before a Magistrate, it is clear that section 195, paragraph 1, clause (b), applies and the previous sanction or the complaint of the court mentioned therein was necessary. The complaint of the Superintendent of Police at that stage of the proceeding could not be substituted for the complaint or the sanction of the court. The other grounds taken in this Court have really no force at all. In so far as the merits are concerned, every court which has gone into the case, has come to the conclusion that the charge of theft preferred by the complainant was a false charge. The offence committed being one in relation to a court was an offence under section 211 of the Penal Code, 1860 and the conviction has rightly been had thereunder. As regards the sentence, it is not often that an offence under this section is clearly proved, as it has been in the present case, to the satisfaction of every body who has had to deal with it. The sentence of eighteen months' rigorous imprisonment is, therefore, by no means too severe a punishment for the offence committed. The result is, therefore, that the application fails and is dismissed.