Full Judgment
Sadasiva Aiyar, J.
1. This is a reference by the Sessions Judge of Tanjore asking us to quash the commitment made to his court by the third class magistrate of Arantangi. The accused are four in number, the charge against the 1st and 3rd accused being that they committed offences under Section 193, 465, 466 and 471, Indian Penal Code, in connection with the document Ex. D, and the charge against accused 1, 2 and 4 being that they committed similar offences in connection with the document, Ex. N. The order of the Magistrate committing the accused falls under Section 213(1) of the Criminal Procedure Code. Before the Sessions Judge it was argued by the Public Prosecutor that under the provisions of Section 531 and 537, Criminal Procedure Code, a superior court had no power to set aside the Magistrate's order of commitment, granting that the Arantangi Magistrate had no territorial jurisdiction over the place where the 3rd and 4th accused are alleged to have committed the offences and granting further that sanctions under Section 195 and 197, Criminal Procedure Code, were required as regards some or all of the accused. The Sessions Judge overruled the above contention founded on Sections 531 and 537. I am, however unable to agree with the Sessions Judge that Sections 531 and 537, Criminal Procedure Code are not applicable, I further respectfully dissent from the decision in Emperor v. Zahir Singh I.L.R. (1915) A 283 in which it was held that where the objection based on want of sanction is taken at the earliest opportunity, Section 537 would not cover the case of proceedings conducted by a Magistrate in the absence of necessary sanction against the accused. In the case of Sankaralinga Tevan v. Avudai Ammal (1916) 8 Crl.. L.R. 234 the provisions of Section 537 were evidenetly not brought to the notice of the learned Judge who decided it. The Committing Magistrate himself might have refused to take cognizance of the case in the absence of sanction. It may also be that the Sessions Judge, is entitled to acquit the accused on the ground of want of sanction, as Section 537 prohibits only the court before whom the case comes on appeal or revision from treating the want of sanction as material unless it had occasioned a failure of justice. (It could only be in very exceptional cases that mere want of sanction could itself occasion a failure of justice).
2. It is next urged that as regards Ex. N, 'there is no evidence to show that it was not drawn up as it stands now on the date it bears, and that Sections 465 and 471, Indian Penal Code, have no application to the manufacture of such a document as there is no legal evidence before the Committing Magistrate on which a conviction could be based under these sections. This Court has got the power to set aside a commitment only on a question of law. I was at first inclined to hold that the commitment of accused 1, 2 and 4, so far as it related to the acts alleged against them in connection with Ex. N, might under the peculiar circumstances of this case, be so set aside. But my learned brother thinks that this a matter which ought to be more appopriately dealt with by the Sessions Judge himself in the proceedings before him, and I do not wish to press my own view of the matter. (We express no opinion on the question whether sanction is or is not required as that question does not properly arise before us at this stage of the case).
3. As regards misjoinder, Section 238 Criminal Procedure Code, no doubt prohibits the joint trial of separate charges with respect to separate transactions. But an enquiry before a Committing Magistrate is not a trial and does not come within the prohibition contained in Section 233, and we are asked by this reference to deal only with the proceedings of the Committing Magistrate, the trial itself having to take place before the Sessions Judge hereafter. Of course the Sessions Judge has got power in a proper case to hold separate trials as regards separate offences so as not to contravene the provisions of Section 233. He has also got the power to acquit if there is no legal evidence, and the Public Prosecutor also would no doubt in a proper case withdraw the prosecution if there is no legal evidence to support it. But all this has to be done in the proceedings before the Sessions Judge and so far as the order of the Magistrate committing the accused is concerned, I do not think that sufficient reason has been shown for quashing that order.
4. I would therefore decline to accept the reference and would order the records to be returned to the Sessions Judge.
Napier, J.
5. I agree.