Full Judgment
Roxburgh, J.
1. This is a reference by the Additional Sessions Judge of 24-Parganas recommending that certain proceedings now being held against one Pritam Singh be quashed on the ground that further prosecution of this accused for an offence under Sections 19A and 19 (f), Arms Act, is barred by the provisions of Section 403, Criminal P.C. The accused was first sent up on 1-11-1945, with another man. On 8-12-1945, a charge sheet against the accused alone under Section 19 (f), Arms Act, Section 3 of Ordinance 33 [XXXIII] of 1943 and Section 411, Penal Code was received by the Court. On 7-1-1946, the District Magistrate of 24-Parganaa granted sanction for the prosecution. The case had been transferred on 12th December by the Sub-Divisional Magistrate to the file of Mr. B.L. Saha for disposal. A fresh charge sheet on 21-1-1946, was submitted to the Sub-Divisional Magistrate who transferred this to Mr. B.L. Saha for disposal.
2. The accused was committed to Sessions, when on 28th May the public prosecutor submitted a petition saying that the Police Magistrate instead of starting the proceedings ab initio had simply transferred the fresh chalan to Mr. Saha who was in charge of the case before and that, therefore, in view of the ruling in Basdeo Agarwal v. Emperor the entire proceedings were bad. He, therefore, asked permission to withdraw the prosecution. The learned Second Additional Sessions Judge thereupon passed an order acquitting the accused under Section 494, Criminal P.C., noting that the authority might prosecute Pritam Singh with proper sanction starting proceeding ab initio if it is considered desirable and law permits.
3. The learned Additional Sessions Judge now makes this reference putting forward the view that the order of acquittal being passed after an application for withdrawal of prosecution had been made, even though the ground for withdrawal was that the whole proceedings were bad, is nevertheless a good order for acquittal and therefore further proceedings could not be held.
4. We do not agree with the view that the learned Additional Sessions Judge has expressed for the reasons given by him. We are, however, of opinion that a valid order of acquittal has been passed in this case which is an effective bar to the present proceedings. In our opinion, when the fresh challan was submitted to the Sub-Divisional Magistrate on 21-1-1946, by the District Magistrate, fresh proceedings had been initiated and thereafter all proceedings were good. At the time when the public prosecutor made his petition on 28th May he was acting under a misapprehension. The result is that the order of acquittal was passed on an application for transfer in proceedings which were with jurisdiction; the order of acquittal is, therefore, of full effect and is a bar to the present proceedings.
5. We may point out that the distinction between the facts in the present case and those in Basdeo Agarwal v. Emperor is that in the latter case no fresh challan was in fact submitted; when sanction was received the case proceeded forthwith. Proceedings are instituted in Court when a police report of the facts with police charge sheet is received by the Court. If at the time when such a report is received there is already in existence a valid sanction, the proceedings are then instituted. That is what happened in this case and proceedings were, therefore, good as from 21-1-1946.
6. We had considered whether we might not interfere with the order of acquittal passed in this case haying regard to the fact that it was passed under a complete misapprehension of the law, but these proceedings have already dragged long enough and we agree with the reasons given by the learned Additional Sessions Judge in his reference that they should not be allowed to continue further.
7. The result is that the reference is accepted; the present proceedings are quashed and the accused is directed to be released from his bail.
8. The Crown has not appeared in the proceedings.
Chakravartti, J.
9. I agree.