Asmatulla and Others vs The Empress

A petition was presented to the Deputy Commissioner, complaining of various acts misconduct by the Tehsildar and others of the locality. Ho referred the matter to the Sub-Divisional Magistrate for enquiry and report. The Sub-Divisional Magistrate has hold that enquiry but has made no report and, in consequence of an opinion formed by him during the enquiry he has proceeded to try the Petitioner, who was one of the complainants to the Deputy Commissioner, under sec. 182, I. P. C., and has convicted him accordingly. There are various objections made to us against this order. It is sufficient, however, for us to consider only some of these. The Sub-Divisional Magistrate clearly had no authority to institute these proceeding''s. The complaint which led to the trial was not made to him but was made to the Deputy Commissioner with out whose previous sanction on a complaint, no trial under sec. 182, I. P. C., could be held. We find on the record an order purporting to-be under sec. 195, C. Cr. P., passed by the Sub-Divisional Magistrate, sanctioning this prosecution. The Sub-Divisional Officer has, however, since become aware of the fact that such sanction could not be given by him and he has endeavoured to justify his order by referring to sec. 476, C. Cr. P., explaining that the order might have been given under the authority of that law. But even if it could be so, we think that sec. 476 does not apply. That section applies only to proceedings, taken before some judicial officers, of the nature of judicial proceedings. The enquiry held by the Sub-Divisional Magistrate was certainly not of that nature, for, we observe that ho thought proper to examine the accused on oath so as to obtain his denial of the charges of oppression made against him. We are consequently of opinion that the trial has been held without jurisdiction and that under no circumstances should it have been held by the Sub-Divisional Magistrate. The conviction and sentence must, therefore, be set aside and the Petitioners discharged from their bail.