The Judgment of the Court was as follows:—
Henderson, J.:— This is a Rule calling upon the Deputy Commissioner, Tezpur, to show cause why the conviction of the Petitioner under sec. 211 of the Indian Penal Code should not be set aside.
The relevant facts are as follows: The Petitioner was given shelter for the night in the house of the prosecution witness Bhabanath. In course of the night he attempted to take advantage of Bhabanath's wife. As a result of this he was beaten by Bhabanath. He then went to the police station and brought an entirely false charge of robbery against Bhabanath. The police reported the case to be a false one and prayed for the prosecution of the Petitioner under sec. 211 of the Indian Penal Code. The Magistrate called upon the Petitioner to show cause why he should not be prosecuted and the Petitioner then filed what is known as a “narazi petition.” The case then proceeded to trial and the Petitioner was in due course convicted. His appeal to the Sessions Judge was unsuccessful.
This Rule was issued on three grounds: (1) that the sanction of the Magistrate who dealt with the narazi petition was necessary before a prosecution could be started; (2) that it was improper to proceed with the trial until the narazi petition was disposed of; and (3) that the sentence is unduly severe.
I will deal with the third ground first. Now we have been through the record and we are satisfied that the case is a very serious one and there is no ground which would justify our interference with the sentence.
There is ample authority in support of the first two grounds. If the former is established it will be fatal to the trial. In the latter case it would not always be necessary to order a re-trial.
In connection with the first ground, I need only refer to the case of Brown v. Ananda Lal Mullick . There can be no doubt that the effect of this decision is that if the complainant after the police submitted a final report, had filed a complaint before the Magistrate, sanction of that Magistrate would be necessary before he could be put upon his trial.
But the present case comes within quite a different category. It is to be noticed that in the case dealt with by Chief Justice Sanderson and Walmsley, J., there had been no prayer by the police for the prosecution of the Petitioner. In the present case there was such a prayer and the Magistrate actually took cognizance of the case before the Petitioner appeared on the scene at all. In this connection I should like to refer to the case of Superintendent and Remembrancer of Legal Affairs, Bengal v. Biswambher Brahmin where the matter is fully discussed. A similar view was taken by the Patna High Court in the case of Subhag Ahir v. King-Emperor* . Though in this latter case these remarks are in the nature of obiter dicta we agree with the reasoning of the learned Judges therein. The result is that both these grounds must fail.
It is also apparent that on the facts, there is nothing really to justify an argument that sanction would be necessary in any circumstances. The word “narazi” is often loosely used and it is necessary to examine the petition which is actually filed in any particular case. We have done so and we have found that all that the Petitioner did was to show cause against his prosecution. He asserted that the case was a true one and that he was perfectly innocent. He never made a complaint against anybody or asked the Magistrate to investigate it.
The learned Magistrate, however, overlooking the real nature of the petition, examined the Petitioner on oath and gave him an opportunity of proving his case. The Petitioner made no attempt to avail himself of this opportunity; he never appeared and he never produced any witnesses. In these circumstances if the learned Magistrate was of opinion that the narazi petition was a petition of complaint, the only course which he could possibly take, was to dismiss it under sec. 203 of the Code of Criminal Procedure. It would, therefore, be perfectly idle to contend that the narazi petition had not been properly disposed of.
We accordingly discharge the Rule. The Petitioner must surrender to his bail and serve out the remainder of his sentence.
Bartley, J.:— I agree.
P.C