Abdul Mian and Others vs The King

Ramaswami, J.—It is necessary to state the material facts giving rise to this rule. On 12-8-1948 at about noon one Kara Dusadh found six appcts. slaughtering a bullock in an open field at a distance of about ten rasis from his house. He informed the S. I. of Police, who after investigation submitted charge-sheet u/s 295A, I. P. C. After taking cognizance, the Subdivisional Mag. transferred the case to another first class Mag. who has convicted the appcts. not u/s 295-A but u/s 298 I. P. C.

The main argument is that since the prosecution has not been sanctioned by the local Govt., the conviction of the appcts. is illegal. In my opinion, this argument is well founded & must prevail. The lower appellate Ct. has observed that there is no defect in cognizance since the appcts. have been ultimately convicted u/s 298, I. P. C. upon the same complaint. But it is not permissible to look at; the ultimate result of the trial in order to examine whether the Mag. has taken legal cognizance of the case: see Kambhan Chenchayya Vs. Bandarupalli Bapayya and Others, & (Sri) Narain Singh Vs. Emperor, . In my opinion, the proceedings in the present case are wholly illegal from the start for want of sanction of the Provincial Govt. for the prosecution of the appcts. In AIR 1948 82 (Privy Council) the Judicial Committee observed that sanction to prosecute constitutes a condition precedent to the institution of the prosecution; the giving of the sanction confers jurisdiction on the Ct. to try the case; and where there is no valid sanction there is a defect in the jurisdiction of the Ct. which can never be cured u/s 537, Cr. P. C. Precisely the same opinion has been expressed by the F. C. in AIR 1945 16 (Federal Court)

Upon these grounds, I would make this rule absolute & set aside the conviction & sentence imposed on all the appets.