9911796707
TMI Blog1991 (3) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... to in Section 244 of the Act are not produced in support of the prosecution within four years from the date of appearance of the accused, the Magistrate has to discharge the accused unless the prosecution satisfies the Magistrate that upon evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. It is contended that this provision came into force on 14.3.89 as on that date the assent of the President has been published for general information in the Calcutta Gazette Extraordinary, the Magistrate immediately on the above Sub-section (3) of Section 245 of the Criminal Procedure Code coming into force should have discharged the present petitioner under Sub-section (3) of Section 245 unless the prosecution satisfies the Magistrate that upon evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. It is contended that as the learned Magistrate before framing of the charge on 12.12.83 ignored the above provision, he committed a great illegality and the petitioner would be liable to be discharged f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanction under Section 197, Criminal Procedure Code were to be issued only one sanction under Section 132, Criminal Procedure Code would not be sufficient and sanctions both under Section 132, Criminal Procedure Code and 197, Criminal Procedure Code are required to be given and in the absence of both the sanctions the proceeding initiated against the members of Armed Force had to be quashed. 6. The first point for consideration in this case is whether there was any obligation for the Learned Magistrate to apply the provisions of Sub-section (3) of Section 245 before framing of charge against the accused on 12.12.89. The (West Bengal Amendment) Act, 1988 of the Criminal Procedure Code is extracted below: GOVERNMENT OF WEST BENGAL LAW DEPARTMENT Legislative. NOTIFICATION. No. 548-L- 14th March, 1989. The following Act of the West Bengal Legislature, having been assented to by the President of India, is hereby published for general information: THE CODE OF CRIMINAL PROCEDURE (WEST BENGAL AMENDMENT) ACT, 1988 West Bengal Act XXIV of 1988 (Passed by the West Bengal Legislature). (Assent of the President of India was first published in the Calcutta Gazette, Extraordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed principle of interpretation of statute such amendment provision whose primary object is to avoid delay in trial and is in consonance with the fundamental rights enshrined in Article 21 of the Constitution will be applicable to all pending Criminal Proceedings for trial of offences under Chapter 19 of the Criminal Procedure Code for trial of warrant cases instituted otherwise than on police report. 9. Mr. Pradip Ghosh appearing for the petitioners submits that as soon as the Act came into force the Magistrate had the obligation to apply the provision of Sub-section (3) to decide the question of discharge of the accused regard being had to the position of the case as it stood on 26.1.88, that is, the date on which the period of four years from the date of the appearance of the accused expired. He has drawn our attention to the record of the case pending before the learned Magistrate and has pointed out that on 26.1.88 all the evidence before charge had not been concluded and therefore, when the Sub-section (3) came into force and when on that date no charge was framed, then the learned Magistrate had to apply the provision of Sub-section (3) of Section 245 and would either disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charge had not been concluded. 11. We are unable to hold that such a contention is acceptable. If that were to be acceptable then we shall have to hold that the Sub-section (3) of Section 245 have been given any retrospective effect. As there is nothing in the Act to suggest that it has been given a retrospective effect then we must hold that the amendment is prospective in nature and the learned Magistrate in the matter of such warrant cases instituted otherwise than on police report has to apply Sub-section (3) of Section 245 if on the date on which the above provision came into force, the period of four years had expired and the evidence before charge had not been concluded on the date on which the above provision came into force. When admittedly in this case Sub-section (3) came into force on a date before which all evidence before charge had been concluded, we are unable to hold that any right had accrued, to the petitioner in this case to be discharged under Sub-section (3) of Section 245 unless the Magistrate, regard being had to the evidence already produced and for special reasons, decides to continue the proceeding. On the date Sub-section (3) of Section 245 came int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed for sanction under Section 197, Criminal Procedure Code. The Division Bench of Supreme Court set aside the above judgment of High Court and has clearly held that for prosecuting a member of Armed Force if sanction under Section 132 and that under Section 197 are required to be issued then regard being had to the purpose for which the two sanctions are contemplated in two different provisions of the Criminal Procedure Code sanction under Section 132 cannot be a substitute for sanction for taking cognizance under Section 197 of the Criminal Procedure Code. Therefore, the Division Bench of Supreme court is of the view that if the sanctions under both Section 132, Criminal Procedure Code and under Section 197, Criminal Procedure Code are required then in the absence of a sanction under Section 197, Criminal Procedure Code taking of cognizance by the Magistrate would be illegal. Mr. Ghose has also drawn our attention to a Single Bench decision of this Court reported in [1989] 19 ECC 173 (Cal) : (1988) 2 Cal HN 455 (S.N. Bhowmick v. State) where the learned Single Judge relying on the above Supreme Court decision quashed a proceeding on the ground that the sanction purported to be un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be in any particular form or in writing or for it to set out the facts in respect of which it is given. It has also been observed that the desirability of such a course is obvious because when the facts have not been set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as the facts can be, and are, proved in some other way. The sanction under Section 6 of the Prevention of Corruption Act, 1947 which was subject matter of challenge was in the following form: GOVERNMENT OF ORISSA Commerce and Labour Department Order No. 4561/Com. dated 3.11.1948 In Pursuance of Section 6 of the Prevention of Corruption Act, 1947 (II of 1947) the Governor of Orissa is hereby pleased to accord sanction of prosecution of Sri B.B. Nayak, Inspector of Factories, Orissa, employed in connection with the affairs of the province under Sub-section (2) of Section 5 of the said Act. (2) Nature of offence committed: Criminal misconduct in discharge of official duty. By order of the Governor, (Sd.) V. Ramanathan Secretary to the Government 18. Section 6 of the Preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for the Court to decide as to whether a proper sanction is given or not as required under the law, is to see as to whether either from the order of sanction or from any other materials produced the facts in respect of which it is given have been set out or not. It is not necessary that the sanction will be in a particular form. It is only necessary that there should be a sanction stating the facts in respect of which it is given and the Court on the basis of the said sanction has to take cognizance. The particular language used in the order of sanction is not material. The only material thing to show is as to whether there is a previous sanction for the Court to take cognizance. It is not necessary that a sanction order under Section 137(1) shall have to be issued by the Collector to accord sanction for the Court to take cognizance, Under the Code of Criminal Procedure ordinarily the Criminal Courts on the basis of petition of complaint or police report or otherwise may take cognizance and initiate a criminal proceeding. No sanction of the executive authority is necessary for a Criminal Court to take cognizance. What 197, Criminal Procedure Code or 137(1) of the Customs Act prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
