2000 (5) TMI 1086 - SC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the prosecution without sanction.
2. Applicability of Section 161(1) of the Bombay Police Act.
3. Nature of the order passed by the Metropolitan Magistrate and its revisability.

Summary:

1. Maintainability of the prosecution without sanction:
The appellants contended that no sanction was obtained to prosecute them, which is a prerequisite u/s 197 of the Code. The Metropolitan Magistrate dismissed their petition for discharge, stating that the decision regarding prior sanction would be taken on merits after considering the evidence. The Sessions Court upheld the objections based on Section 197 of the Code and quashed the process issued by the trial court. However, the High Court opined that further evidence is required to decide the question relating to Section 197 of the Code.

2. Applicability of Section 161(1) of the Bombay Police Act:
The appellants raised an additional point based on Section 161(1) of the Bombay Police Act, which imposes a ban on the court from entertaining a prosecution if it is instituted more than one year after the date of the act complained of, unless sanctioned by the State Government within two years. The Sessions Court upheld this objection, but the High Court held that the question of limitation was not raised before the Magistrate and thus could not be entertained by the Sessions Judge. The Supreme Court disagreed, stating that the appellants were not estopped from raising this ground in revision. The Court concluded that the complaint was irretrievably barred u/s 161(1) of the Bombay Police Act as it was filed long after the prescribed period without any sanction.

3. Nature of the order passed by the Metropolitan Magistrate and its revisability:
The High Court held that the order of the Metropolitan Magistrate was interlocutory and thus not revisable u/s 397(2) of the Code. The Supreme Court found this view erroneous, stating that the test for determining whether an order is interlocutory is whether upholding the objections would culminate the proceedings. Since upholding the appellants' objections would terminate the prosecution, the order was not merely interlocutory and was revisable.

Conclusion:
The Supreme Court allowed the appeal, set aside the judgment of the High Court, and restored the order of the Sessions Judge dismissing the complaint. The Court did not find it necessary to delve into the contention regarding the sanction u/s 197 of the Code due to the conclusion regarding Section 161(1) of the Bombay Police Act.