Allahabad High Court
Emperor vs Kohna Ram on 1 June, 1922
Equivalent citations: (1923)ILR 45ALL11
JUDGMENT Walsh, J.
1. In our opinion this application must succeed. The fact that the matter has been in one form before another Judge of this Court is irrelevant. It was referred to this Court by the Sessions Judge for enhancement of sentence. A learned Judge of this Court looked into the matter and came to the conclusion that there was no ground for issuing notice. It would amount to a denial of justice to accept the argument of the Assistant Government Advocate that a reference by a Sessions Judge, which this Court may or may not see fit in its discretion to entertain, resulted in depriving a convicted person of the right to apply to this Court in revision. It by no means follows from this view that any accused person has the right to come in revision more than once. At any rate he would come with little hope of success. The mere fact that he had failed on his first application to raise the point which he relied upon in his second, would give a discretionary power not to entertain the second application at all.
2. On the second point I hold a very clear view, without going into the authorities at all which have been discussed in a very able judgment by the Sessions Judge who has taken a very clear view of the matter, that there is one fact in this case which marks it off from any case which has been cited in argument. The charge might have been made against the accused under Section 182 or Section 211, but it seems to me to be contrary to public policy and to the recognized principles of the administration of the criminal law to hold that when a charge has been launched which requires sanction by a particular authority and that authority has refused sanction, it is open to a complainant to alter his election, shift his ground and start a fresh charge on an alternative section which does not require sanction. He should have thought of that before. A useful test to my mind is to assume that the charge under Section 182 had been permitted to proceed to judgment; if it had resulted in a conviction which was subsequently set aside for want of sanction, or, on the other hand, in an acquittal also for want of sanction, it seems to me that under Section 403, Criminal Procedure Code, that fact would have been an answer to a subsequent charge under Section 211. The point may seem technical; but a question of principle is involved, and, however right the conviction in this case may have been on the merits, I think the only course is to entertain this application and quash the conviction. The conviction is, therefore, set aside. The fine, if paid, must be refunded.
Ryves. J.
3. I agree.
4. We accept the application in revision and quash the conviction. The fine, if paid, must be refunded.