Full Judgment
Ramabhadran, J.C.
1. This criminal revision petition arises under the following circumstances:
2. Yarindmal, the petitioner before me, filed S, complaint under Sections 312, 506, 323 and 161, Penal Code, against Radha Krishna, Jagdish and Gulzari. Accused l is a Sub-Inspector of Police, while the other two accused are constables. The complaint was to the effect that on 13th June 1948, the acoused arrested the petitioner, handcuffed him, took him to the Kotwali and illegally detained there for two hours. He was eventually released on bail after payment of Es. 60 as bribe to the police officers.
3. The complaint was instituted in the Court of the Additional City Magistrate (Mr. Badlani) who referred the case to the District Magistrate in accordance with para. d88, Police Regulations, The case was transferred to the City Magistrate 'for trial' by the District Magistrate. Summonses were issued to the accused by the City Magistrate and they appeared in his Court on 2ith July 1948. Meanwhile, an order had been passed by the District Magistrate under Section 528, Criminal P. C, withdrawing the case from the City Magistrate and transferring it to the Addi-tional Assistant Commissioner for disposal. The transfer order was communicated to the last-named officer with a remark that he should make a fresh enquiry under Section 202, Criminal P. C. He was further told that he could refer the complaint to the Superintendent of Police for preliminary enquiry if he so desired. The case was accordingly forwarded to the Superin-tendent of Police for preliminary enquiry.
4. learned Counsel for the petitioner argued, and in my opinion correctly, that there was no point in ordering a fresh preliminary enquiry after the accused had appeared before the City Magistrate. It goes without saying that an enquiry under B. 202 is discretionary and once Rummies had been issued to the accused, the matter could not be re-opened by ordering a fresh enquiry under section 202.
5. Learned Public Prosecutor pointed out that under Section 6, Prevention of Corruption Act. 1947 ( Act. II [2] of 1917), no Court could take cognizance of an offence punishable under Section 161, Penal Code, without the previous sanction of -the duly constituted authority as defined therein. In this case, there is an allegation that the accused accepted a sum of Rs. 50 as bribe. Clearly, therefore, the City Magistrate could not have taken cognizance of the case without the sanction of the authority competent to remove the accused from office. learned Counsel for the petitioner suggested that the case could proceed against the accused in respect of other charges without sanction. All the offences attributed to the accused form part of one transaction and obviously it cannot be split up.
6. The result ia, proceedings hitherto are quashed. The complaint is sent back to the learned District Magistrate, who will please make it over to a Magistrate of competent jurisdiction for disposal in accordance with law, The Magistrate to whom the case is transferred, should refer it to the higher police authorities and ascertain if they are prepared to accord the necessary sanction for the prosecution of the accused of the offence under Section 161, Penal Code; if sanction is granted, the case can proceed, If sanction, however, is not granted, the Magistrate will consider whether the other charges should be proceeded with or not and for this purpose, he may record and weigh such evidence as the complainant may tender under Section 202, Criminal Procedure Code.