Gajadhar Lakshiram v. Emperor

1. This is an application for revision of an order passed by Mr. R.K Kher Sessions Judge, Wardha, in criminal Revision No. 72 of 1946 on 8th January 1947.

2. The facts are that the Inspector of Factories Central Provinces and Berar made a com-plaint in writing against the applicant of some offences under the Factories Act.

3. Previous to this R.B.F.C Gangrade, District Magistrate Wardha, had refused to sanction the prosecution of the applicant but on 6th August 1946 his successor R.S.R.K Mishra sanctioned the prosecution. The case of the applicant is that the complaint is time-barred and that R.S.R.K Mishra could not review the order of his predecessor and hence the complaint is invalid.

4. The complaint was received by the Magistrate concerned on 6th August 1946 though the offence was registered on 16th August 1946. Since the alleged offence was committed on 12th February 1946, the complaint was duly made within six months of the alleged offence. That it was received by the clerk of the Court and not the Magistrate matters little. In my opinion the complaint is not time-barred. Indeed this part of the case was not seriously pressed by the learned counsel for the applicant.

5. It was contended that the according of a sanction to prosecute is more a judicial act than an administrative one. Reference is made in this connection to part 1-D of the Central Provinces and Berar Factories Manual (1988) which contains the Circular Instructions and General Orders regarding the working of the Factories. Instruction No. 5 deals with prosecutions and it is there stated how prosecutions should be launched. These rules do not appear to be anything more than instructions of an executive and administrative character. Under these rules the full-time Inspectors of factories are required to take the sanction of the District Magistrate of the District for every prosecution. While forwarding his recommendations, the full-time Inspector is required to furnish a copy together with his reasons, to the factory manager, so as to enable the latter to represent the matter to the District Magistrate before sanction to prosecute is given. But the action of the District Magistrate who acts under S. 10(4) of the Act as an Inspector is not a judical function. There is difference between administrative and judicial functions which has been pointed out by Bhashyam Ayyangar, J., in 27 Mad. 541 in the following words:

“There is a marked distinction between the classes of offences dealt with in S. 195, Cl. 1(b) and (c), and those dealt with in S. 197. A Court granting sanction under S. 195, Cls. (b) and (c), does so in connection with offences committed in or in relation to any proceeding in such Court and the Court therefore acts in its judicial capacity in granting the sanction upon legal evidence. But the Government in according or withholding sanction under S. 197—for the prosecution of a public servant in respect of an offence alleged to have been committed by him as such public servant—acts purely in its executive capacity and the sanction need not be based upon legal evidence. The Government is certainly not acting in a judicial capacity nor exercising a judicial function in authorising or sanctioning a prosecution under Sections 196 and 197 of the Cr PC, and there is nothing in the signification of the word ‘sanction’ to ‘import’ as the Sessions Judge supposes “a judicial element into the act of the executive, and the ruling of the Full Bench in 10 Mad 2322 referred to by the Sessions Judge has no application whatever to the present case.”

6. In the present case also the sanction by the District Magistrate was not a judicial but an executive function. It is true that the instructions give the manager of the factory concerned an opportunity to represent his case but that is entirely with a view to avoiding unnecessary prosecutions and no argument can be grounded upon this practice. Indeed there is no warrant for such a hearing in the Act itself. In my opinion the action of the District Magistrate was in his executive capacity.

7. It was argued that the District Magistrate having once refused sanction was functus officio and he (and more so his successor) could not reopen the case and review his earlier decision. This is an entirely fallacious argument. There is no question of any autrefois acquit whenever the District Magistrate refuses to sanction the prosecution. Indeed the District Magistrate can and must sanction a prosecution if on a review of the case he finds that his earlier decision is erroneous. In A.I.R 1926 Cal. 6913 a prosecution without any sanction had proceeded to the stage of judgment and even this did not bar a subsequent prosecution. It is true that in that case there was no refusal to sanction in the first instance but in so far as the Court is concerned want of sanction and refusal to sanction are on the same footing. All that the criminal Courts are required under S. 74(1) of the Act is to see that there is a legal sanction. They are not required to inquire anything further and unless the accused can plead an autrefois acquit or convict or any other bar of law, the case muat go on. To hold otherwise would constitute the criminal Courts into an appellate Tribunal which may well question the propriety or correctness of the District Magistrate's opinion. That clearly is not the province of a criminal Court which cannot go behind the sanction.

8. The learned Government pleader drew my attention to Section 14 of the General Clauses Act. I do not propose to base my decision upon that section though prima facie I do not see any reason why the principle involved in that section should act be applicable to the present case.

9. I would further say that there is consider, able force in the argument of the learned counsel for the Crown that the present complaint has been filed by an Inspector as required by S. 74(1) and that the word ‘or’ is disjunctively used. Though under the instructions above referred to a full time Inspector has been told to take the sanction of the District Magistrate and not to take action himself, there is nothing in the Act to prevent an Inspector from filing a complaint. Indeed S. 74(1) specifically authorises an Inspector to start a prosecution himself without the sanction of any superior officer. In view however of what I have held in paras 4 and 6 above I do not express any final opinion on this aspect of the case. The application for revision fails and is dismissed.

10. Revision dismissed.