PATNA HIGH COURT

                                                   Abdul Mian

                                                         Vs

                                                     The King

                                     Criminal Revision No. 800 of 1949

                                                (Ramaswami, J.)

                                                   18.08.1949

                                                  JUDGMENT

Ramaswami, J.

1. It is necessary to state the mate rial facts giving rise to this rule. On 12.8.1948, at about noon
one Karu Dusadh found six applicants slaughtering a bullock in an open field at a distance of
about ten rasis from his house. He informed the S. I. of Police, who after investigation submitted
charge sheet under Section 298A, Indian Penal Code. After taking cognizance, the Sub-divisional
Mag. transferred the case to another first class Mag. who has convicted the applicants not under
Section 295-A but under Section 298, Indian Penal Code.

2. The main argument is that since the prosecution has not been sanctioned by the local Govt.,
the conviction of the applicants is illegal. In my opinion, this argument is well-founded and must
prevail. The lower appellate Ct. has observed that there is no defect in cognisance since the
applicants have been ultimately convicted under Section 298, Indian Penal Code upon the same
complaint. But it is not permissible to look at the ultimate result of the trial in order to examine
whether the Mag. has taken legal cognisance of the case : see Ravanappa v. Reddi v. Emperor1,
and Narain Singh v. Emperor2, In my opinion, the proceedings in the present case are wholly
illegal from the start for want of sanction of the Provincial Govt. for the prosecution of the
applicants In Gokulchand Dwarkadas v. The King3,) the Judicial Committee observed that
sanction to prosecute constitutes a condition precedent to the institution of the prosecution; the
giving of the sanction confers jurisdiction on the Ct. to try the case; and where there is no valid
sanction there is a defect in the jurisdiction of the Ct. which can never be cured under Section
537, Criminal Procedure Code. Precisely the same opinion has been expressed by the FC in
Basdeo Agarwalla v. The King4,

3. Upon these grounds, I would make this rule absolute and set aside the conviction and sentence
imposed on all the applicants Rule made absolute.

Cases Referred.

1 AIR 1932 Mad 253: (33 Cr LJ 361)
2 AIR 1925 All 129 : (26 Cr LJ 448)
31948-1 MLJ 243: (AIR 1948 PC 82 : 49 Cr LJ 26)
41945 FLJ 45: (AIR 1945 FC 16 : 46 Cr LJ 510)