In re: Ningappa Rayappa Ghotadki

Norman Macleod, Kt., C.J.—We think the rule must be made absolute. The sanction was given to prosecute the petitioner u/s 211 or Section 182, Indian Penal Code, the facts being that the petitioner had made a complaint charging one L.V. O''Brien with criminal breach of trust. The Magistrate without examining the complainant, as he was bound to do u/s 203, Criminal Procedure Code, dismissed the complaint. Then he called upon the present petitioner to show cause why he should not be prosecuted for an offence u/s 211 or Section 182 of the Indian Penal Code. If the complaint was not disinisssed according to law, then the complainant would not be convicted of bringing a false charge. The only question on which I had any doubt was whether on this application in revision for setting aside the order granting sanetion, wo could hold that the order dismissing the complaint was wrongly made. Undoubtedly if the complainant had appeared before us and asked us to set aside the order of the Magistrate dismissing his complaint, and to direct the learned Magistrate to hear the complaint according to law, we should have made such an order. That was decided in In the matter of the petition of Ganesh Narayan Sathe. If we refuse to accede to the petitioner's request that we should express an opinion on the validity or otherwise of the Magistrate's order, that question will have to be decided by the Magistrate who tries the charge u/s 211, and it is clear that he would have to come to the conclusion that the dismissal of the complaint was not according to law. It seems, therefore, that that being the obvious result if we refuse to interfere with the order of sanction to prosecute the petitioner u/s 211, it is preferable that we should decide the matter ourselves and hold that the complaint was wrongly dismissed, and that would be a good ground for refusing to give sanction to prosecute the complainant.

Shah, J.

I agree that the sanction should be revoked. In the present case there has been no legal disposal of the complaint. The order dismissing it u/s 203, Criminal Procedure Code, is clearly wrong, as the complainant was not examined at all; and the complainant has in no sense acquiesced in that order. Where there has been no legal disposal of the complaint, it seems to me that no sanction to prosecute the complainant on the footing that it is a false complaint should be granted. Under the circumstances of the case I am of opinion that the sanction should not have been granted.