Authored By : Henry Thoby Princep, T. Ameer Ali

Henry Thoby Princep and T. Ameer Ali, JJ.

1. The complaint originally made before the Magistrateindicated the commission of what is known as a Sessions case, probably dacoity.The Magistrate, in dealing with the case, proceeded under Section 209 of theCriminal Procedure Code, which declares that if the Magistrate should find thatthere are not sufficient grounds for committing the accused for trial, heshould discharge him, unless it appears to the Magistrate that such personsshould be tried before himself or some other Magistrate, in which case he shallproceed accordingly. The Magistrate found that no sessions offence was primafacie established, and he, accordingly, proceeded to hold the trial himself,that is to say, he proceeded under Section 254 of the Code, and he framed acharge in writing against the accused, of the offence of theft in a buildingunder Section 380, and criminal trespass under Section 448, Indian Penal Code.Finally, the Magistrate acquitted the accused and, under Section 195 of theCode of Criminal Procedure, he gave sanction to prosecute the complainant underSection 211 of the Penal Code for making a false complaint. The complainantthen went to the Sessions Judge and asked to have this order revoked. TheSessions Judge proceeded to consider the entire case, not merely whethersanction to prosecute should or should not be given, and finding that properinquiry had not been made, as all the evidence available had not been taken andthat, if such inquiries were held, a sessions offence might be established, hedirected that further inquiry should be held, and that the Magistrate shouldproceed in accordance with the result of such inquiry, leaving it still open tohim, if he should find that the complaint was false, to give sanction toprosecute the complainant under Section 211, Penal Code. On an application madeon behalf of the accused persons in that case to set aside this order aswithout jurisdiction, a rule was granted, which has now come on for hearing.

2. On full consideration of the arguments of the learnedCounsel, who appeared on both sides, we have no doubt that the Sessions Judgein this matter has exercised a jurisdiction which was not vested in him by law.If he proceeded to exercise the powers of revision as he seems to have done, hewas competent to send for the record for any of the purposes mentioned inSection 435. But he was not competent under Section 436 to direct a freshinquiry to be made, inasmuch as the accused had not been improperly dischargedof an offence triable exclusively by a Court of Sessions but had been acquittedof an offence within the Magistrates jurisdiction, in proceedings, as alreadypointed out, under sections, 209, 234 and 253. The Sessions Judge, as a matterof fact, has exercised a jurisdiction vested in him as an Appellate Court underSection 423, as if an appeal had been presented to him from the order ofacquittal passed by the Magistrate. Such powers are in revision conferred underSection 439 only on the High Court. In the present rule, we desire to expressno opinion on the merits of the case, but merely to hold that the order of theSessions Judge directing further inquiry is bad, and must therefore be setaside.

3. As we have been pressed to express some opinion regardingthe effect of the Sessions Judges order on the sanction given by theMagistrate to prosecute under Section 211, Penal Code, we would merely say thatas we understand the effect of the order of the Sessions Judge, it is to revokethe sanction given. The propriety of the order sanctioning the prosecution orrevoking it is not before us.

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Baijanath Pandey vs.Gauri Kanta Mandal (03.02.1893 - CALHC)