In Re, Ponnuswami Thevar

The complainant came before the Sub Divisional 1st Class Magistrate of Usilampatti with a complaint, alleging that the 2nd accused, one member of the village Panchayat Court lately established in his village under Madras Act II of 1920, approached the 1st accused to persuade him to give his vote for the presidentship of the Court in his favour and that he eventually paid Rs. 250 to the 1st accused, which the latter accepted. On these allegations the complainant charged the 1st accused with committing an offence punishable under Sect, 161, Indian Penal Code and the 2nd accused with abetment thereof. The Magistrate returned this complaint, not with reference to the Indian Penal Code but to Act XXXIX of 1920 observing that the offence more properly fell under Sect. 171-E Indian Penal Code as amended by that Act, than under the general section relating to bribary (Sect. 161 Indian Penal Code) and that when the allegations in a complaint fall under a particular section of law, it is not proper to take them under a general section under the same or any other law. He then said that the prosecution for an offence under Sect. 171-E required the sanction of the Local Government and returned the complaint for want of such sanction.

We are not concerned at present to decide whether the Magistrate's action in returning the complaint and not dismissing it was in accordance with law. The case has been submitted to us by the learned Sessions Judge on the ground that Sect. 171-E will not apply to this case. That point has been argued at considerable length by the learned Public Prosecutor; but we need not, we think, decide it at present. For in fact, whether the accused is charged under Sect. 171-E or 161 Indian Penal Code, the sanction of the Local Government or other authority for his prosecution is essential, in the former case with reference to the amendment of Sect. 196 Criminal Procedure Code, effected by Sec. 3 of Act XXXIX of 1920 and in the latter with reference to Sect. 197 of the Criminal Procedure Code. See also Act II of 1920 and Sects. 19 and 21 Indian Penal Code as justifying the description of a member of a village panchayat as a Judge.

It is then material that in our opinion the Sub Divisional Magistrate had no right to disregard the fact that the complaint was made by the complainant under Sect. 161 Indian Penal Code. That section has not, so far as we have been shown, been repealed by anything in Act XXXIX of 1920 and is still in force. If the complainant can establish the accused's responsibility under it, there is nothing in law to prevent his doing so; and we do not know how the Magistrate can claim any discretion to insist in such circumstances on a complainant proceeding under one of two sections either of which may apply to the facts he alleged rather than under the other. In these circumstances there is no ground for our interference in what has happened. Whether the complaint proceeds under Sect. 161 or Sect. 171-E, Indian Penal Code, he will require a sanction. It is for him to obtain such sanction as he may be advised and to institute proceedings again with it.

C. K.Petition dismissed.