SHER MOHAMMAD KHAN Vs. EMPEROR

JUDGEMENT

(1.) THE learned Sessions Judge of Saharanpur had, in this case, an application before him under Section 195, Clause 6 of the Code of Criminal Procedure, against an order represented to him as being an order of sanction under the same section passed by a Magistrate of the first claas subordinate to him, THE person against whom that order had been passed had a statutory right to ask the Sessions Judge, as the superior Court, to re consider the Magistrate s order of sanction and to revoke the same if it found that sufficient cause was shown. I think the learned Sessions Judge has been, to some extent, misled by the fact that one or more of the pleas taken before him were pleas against the regularity or validity of the order of sanction as passed. Even with regard to these pleas, it strikes me that the learned Sessions Judge took up too rigid and technical an attitude. If, as a matter of fact, the Magistrate s order of sanction was bad in law, the sooner that point was adjudicated upon and settled by a competent Court, the better for every one concerned, and the Sessions Judge could have passed a formal order of revocation on the mere ground that the order, as it stood, was irregular and likely to prove inoperative. However this may be, there were other pleas taken in the petition to the Sessions Court which raised the question of the propriety of the order, apart altogether from its validity. This was a question which the person interested had a right to bring to the notice of the Sessions Court. THE only reason given by the learned Sessions Judge for not looking into the matter from this point of view is that the application was in his opinion belated. It was made to him within 21 days of the order complained of and he does not suggest that it was barred by limitation. Even supposing that the period of limitation prescribed for a criminal appeal be held applicable to a proceeding under Section 195, Clause 6 of the Criminal Procedure Code, I think the learned Sessions Judge was bound to entertain this application and to deal with it on its merits. I set aside the order complained of and return the record to the learned Sessions Judge, with directions to restore it to its file of pending applications and to dispose of it according to law.