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Judgment
M. Sharma, J.—The complaint/Petitioner an Office Assistant in the office of the then Sub-Divisional Officer, Nalbari, while discussing with Smti Dharitri Devi and Shri Khanindra Narayan Roy, Office Assistants in the Office of the Superintending Engineer, P.W.D. National Highway, Nalbari about letting out room of the complainant, the Respondent suddenly appeared from behind and gave blows on the head and slaped on his face alleging that the Petitioner was inking bribe from two aforesaid persons. At the order of the opposite party his body guards took the Petitioner to the opposite party with the said two persons and the complainant was rebuked by the opposite party. The complainant-Petitioner alleged that his reputation was lowered before the eyes of the public end accordingly filed the complaint u/s 202 of the Code of Criminal Procedure.
The trial court after examining the complainant on oath called upon the complainant to produce witnesses in support of his case u/s 202 Cord of Criminal Procedure on 12.4.85 by his order held that sanction u/s 197 Code of Criminal Procedure as per provisions of the Assam Amendment Act, 1983 required to proceed against the opposite party and held that a reference to the State Government is compulsory and passed order for referring the case to the Govt. of Assam for necessary certificate as directed by Section 5(a) of the Amendment Act. The Petitioner moved this High Court impugning the said order in Criminal Revision No. 173/85 and the Petitioner was allowed on 27.5.85 with direction to the Magistrate to dispose of the matter-afresh in accordance with law. The Sub-divisional Judicial Magistrate, Nalbari heard the entire matter and after appreciating the materials on record passed an order on 5.8.85 holding as follows:
In this case assault by the accused can not be considered to be acting or purporting to act in the discharge of his official duty, for which he is not protected by the Sub-section 1 of Section 197 Code of Criminal Procedure Hence sanction in this constant case is considered to be not necessary. Accordingly as the materials on record discloses a primafacie case against the accused u/s 352/550 IPC it is ordered to issue summon to the accused u/s 352/500 IPC.
The opposite party did not appear in court nor any revision preferred but instead an application u/s 205 Code of Criminal Procedure was filed to dispense with the personal attendence of the accused and to permit him to appear through his lawyer which was allowed by the trial court by its order dated 14.10.85. Being dissatisfied with the said order dated 14.10.85 Petitioner preferred a Revision petition before this High Court being Criminal Revision No. 404/85 and the same was dismissed by order dated 3.6.86.
On 14.10.85 Public Prosecutor filed an application on behalf of we opposite party being registered as petition No. 879 of 14.10.85 (Annexure D1 to the petition) contending that vide notification No. PLA, 95/80/29 dated 16.6.80, the Governor of Assam directed that provisions of Sub-section (2) of Section 197 Code of Criminal Procedure applied to, amongst other, public servant holding the post of Additional District Magistrate and Executive Magistrate; that the opposite party is entitled to protection u/s 197(2) of the said code and as such previous sanction of the State Government was required before issuing of summons; that under the amendment provisions of Section 197 of the Code no cognizance can be taken for any offence against a public Servant without prior sanction, No mention was made in the said petition that the opposite party assaulted the Petitioner while acting of purporting to act in discharge of his official duty. The case was transferred to Shri (sic) Sarma Munsiff judicial Magistrate before whom the case was pending, has been transferred.
As it appears, the Sub-Divisional judicial Magistrate by his order dated 5.8.85 passed the order finally on the question of sanction as per the direction given by the High Court in Criminal Revision No. 173/85 holding that sanction was not necessary and no revision was preferred by the higher count. The successor Munsiff Magistrate to whose file the case was transferred reopened the matter for sanction and heard afresh the petition about the requirement of sanction on 11.12.86 and again on 3.7.87 and on 31.7.87 recorded in the order sheet as follows.
The initial cognizance taken earlier by my predecessor (sic) and the further proceeding of the instant case is dropped against the accused for want of sanction
This Order was passed on the petition u/s 197 Code of Criminal Procedure (sic) under was passed which was pronounced in the court and in this order held that the (sic) and blows and other abusing words alleged to because and by the (sic) have committed, was done while the accused Vinod Kumar (sic) was dis-charging his official duty as a Superior Officer
The contents of the question posed before this count is whether the Munsiff Magistrate can review a final order passed by his predecessor and quash the proceeding when the same was proceeded after issuance of process and the accused made appearance through his lawyer.
Mr. J.M. Choudhury, learned Counsel for the opposite Party strenuously submitted that question of sanction u/s 197 Code of Criminal Procedure can be raised and considered at any stage of the proceeding. In support of his submission he referred B. Saha and Others Vs. M.S. Kochar, S. B. Sahu v. M.S. Kochar wherein it was held that in considering the question whether or not sanction for prosecution of the accused was required, it is not necessary for court to confine itself the allegations in the complaint. It can take into account all the materials on record at the time when the question is raised and falls for consideration.
This proposition of law is not disputed by either of the parties. In the instant case the materials brought on record at the initial stage, when the question of want of sanction was raised by the accused, contained a clear allegation against the accused about the commission of an offence u/s 352/500 I.P.C. In considering the question whether sanction for prosecution was or was not necessary, these Criminal acts attributed to the accused opposite party wire taken as alleged. After making enquiry u/s 202 the trial court held that the sanction was not necessary and after coming to a final decision regarding sanction, issued process of the court. Admittedly opposite party did not prefer any revision petition before the superior court for quashing the proceeding or against the legality of the said order and appeared through a lawyer and obtained the order to be represented by a lawyer. The settled position of law is that the question of sanction may arise at any stage of the proceeding, but the plea of necessity of sanction should be gone into in the first instance. In this case the trial court in Criminal Revision No. 173 of 1985 (sic) the trial court was taken into the provisions of Section 5 of the Amended provision of Assam Act to the section 197 of the Code and after appreciation of the materials before him came to the finding that Sub-section 5 added to Section 197 Code of Criminal Procedure in Assam Amendment 1983 did not apply to the accused in this case. Against this order the recourse opened to the opposite party was to impugne the same and prayed for quashing the proceeding before the Revisional court as the issue of sanction was finally settled by the earlier order. The words "at any stage of the proceeding" can not and does not mean that the final order can be reopened at any stage of the proceeding," where allegation in the complaint do not attract the protection of Section 197 Code of Criminal Procedure. The court can not reject the complaint at the initial stage for want of sanction, merely because it may be opened to the accused, public servant, to take the defence that he had acted in discharge of his official duties. In Budhi Parkash Yadav Vs. K.C. Sharma and Another, Sukhdeo Dubey and Another Vs. Ram Prasad Dubey and Others, Gani Singh v. State of Patna wherein the words "at any stage of the proceeding" mean that the issue of sanction, if not decided at initial stage, i.e. before the trial court, it can be raised and considered at any proceeding (underline supplied.)
In this case the opposite party raised the point on the same ground which was decided by the predecessor of the Munsiff Judicial Magistrate. In view of that matter once the issue of sanction was decided by the Court finally in the proceeding, the court became functus officio and has no power to revoke, review, recall, alter or quash the same. The trial court has not been conferred, under the provisions of Criminal Procedure Code to ''review'' or ''quash'' the order passed by himself or by his predecessor. Section 362 Code of Criminal Procedure reads as follows:
Save as otherwise provided by this Code or by any other law for the timer being in force, no court when it has signed its Judgment or final order (underline supplied) disposing a case shall alter or review the same except to correct a clerical or arithmetical error
In Chandrabali and Another Vs. State, the Allahabad High Court held that:
Thus the Applicant in this case in hand will not be entitled to claim re-hearing even if we were to hold that the Applicant could invoke inherent jurisdiction of this Court reserved u/s 482 Code of Criminal Procedure
This view has been taken by the Apex Court Sankatha Singh Vs. State of U.P., Sankhata Singh v. State of U.P..
From the facts and circumstances in the case In hand, the Munsiff Magistrate who is the successor of the Sub-Divisional Judicial Magistrate who passed the order cannot review his predecessor''s order as he became the functus officio. The words used in the impugned order as:
Cognizance taken earlier and drop the further proceeding against the accused for want of sanction
It shows that the trial court sat upon the order of his predecessors and declined the cognizance and dropped the proceeding as if he passed the order as the superior court of his predecessor which is in excess of his jurisdiction and provision in the Criminal Procedure Code does not contemplate such jurisdiction of trial court to review or quash a proceeding which was given to the High Court u/s 482 Code of Criminal Procedure. The settled position of law is that inherent power u/s 482 is only given to High Court and unlike Section 151 CPC subordinate. Criminal Courts have no inherent powers. Obviously it can not be said that at criminal subordinate court can revise or review the order. In given circumstances the subordinate criminal court have limited inherent powers and in exercise of these powers they may review or revise their orders for the end of justice Except in those cases when the Court itself either expressly or necessary implication prohibits such review or revision and confers on the order some kind of finality until it is set aside by a superior court in appeal or revision. As discussed above the order of the Sub-Divisional Magistrate passed on 5.8.85 was a final order and the accused Respondent made appearance though the lawyer who represented him, by courts order, in subsequent proceedings to appeal/motion was preferred before a superior court.
For the reasons discussed above, I hold that Shri N. Sarma, Munsiff-Magistrate, Nalbari violated the due procedure of trial under the Criminal Procedure Code and being functus officio acted without jurisdiction in setting aside the final finding of his predecessor as the Code does not provide such provision for review of the final order or quash a proceeding by the subordinate court itself and therefore the order passed is without jurisdiction.
In the result the impugned order is set-aside and quashed. The revision petition is allowed.