STATE OF WEST BENGAL versus RASHMOY DAS AND ORS .

Citation: [1999] SUPP. 5 S.C.R. 80 · Decided: 01-12-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
ST A TE OF WEST BENGAL 
v. 
RASHMOY DAS AND ORS . 
. DECEMBER l, 1999 
[K.T. THOMAS AND M.B. SHAH, JJ.) 
Bengal Excise Act, 1909-Section 92(1)-Criminal Courts-Cognizance 
of Offence under the Act-When-Held, if the prosecution has been instituted 
C within six months of the act alleged-If the period of six months is over, 
when prosecution is instituted with previous sanction of the State-Not 
necessary that proceedings for securing sanction should have commenced 
before expiry of the period of six months-Code of Criminal Procedure, 1973 
(West Bengal Amendment)-Section 167(5). 
D 
Excise Department of appellant-State proposed to launch prosecution 
against respondents for various offences under the Bengal Excise Act, 1909. 
On the expiry of period of six months from the date of the act alleged, it 
approached the Magistrate under Section 167(5) of the Criminal Procedure 
Code, 1973 (West Bengal Amendment) seeking order for continuing the 
investigation and also moved the State Government for sanctioning the 
· E prosecution under Section 92(1) of the Bengal Excise Act, 1909. Respondents 
approached the Magistrate under Section 167(5) Cr. P.C. to discharge them 
from the case on the ground that the state faile~ to lau~ch prosecution within 
the period of six months from the date of alleged commission of offence which 
was dismissed. The respondents filed revision in the High Court which was 
F allowed o!1 the ground that steps should have been initiated for securing 
sanction before the expiry of six months from the date of occurrence and 
quashed the proceedings against them. Aggrieved by the order of the High 
Court, appellant- State has filed the present appeal. 
The appellant-State contended that there was no scope for ordering 
G quashment of the proceedings when the prosecution report had not been filed. 
Allowing the appeal, the Court 
HELD : 1.1. The power of criminal courts in taking cognizance of an 
H offence under the Bengal Excise Act, 1909 has been circumscribed by the 
80 
ST A TE OF WEST BENGAL v. RASHMOY DAS 
81 
second paragraph of Section 92(1). A reading of it makes the position clear A 
that there is no bar on the magistrate against taking cognizance of the offence 
under the Act if one of the two conditions mentioned thereunder is satisfied. 
If the prosecution has been instituted within six months of the act alleged 
there is no question of producing any sanction as the magistrate then would 
be free to take cognizance under the Act. But if the aforesaid six months 
period is over the court can still take cognizance of the offence under the Act B 
when the prosecution is instituted with the previous sanction of the State 
Government. In other words the only requirement for initiating prosecution 
proceedings against an offender after the expiry of the period of six months 
from the date of the act alleged is that such institution should be accompanied 
by the sanction granted by the State Government for such institution. 
C 
[84-G-H; 85-A) 
1.2. The necessi~y for obtaining sanction would arise only if the 
prosecution has not been instituted till the expiry of the said period of six 
months. Hence there is no scope for suggesting that the officer should have 
commenced proceedings for securing sanction before the expiry of the said D 
period of six months. If papers are complete for launching the prosecution 
before the expiry of the said period they can straight away approach the 
magistrate for initiating such prosecution. No question of sanction would then 
arise. So the need for obtaining sanction would arise only after the expiry of 
the said period of six months. (85-C, DJ 
E 
Superintendent and Remembrance of Legal Affairs, West Bengal v. 
Mahendra Singh, (1972) Criminal Law Journal 544, approved. 
2. The High Court cannot quash something which was n~>n-existent There 
is no necessity for quashing prosecution in anticipation or initiation of such F 
prosecution proceedings. (84-D) 
3. It has to be noted that after the initial period of six months is lapsed 
no further period of limitation is prescribed in the Act for instituting the 
prosecution supported by the sanction. Of course such institution may be 
subject to the other general provisions contained in the Code of Criminal G 
Procedure. (85-B) 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1287 
of 1999. 
From the Judement and Order dated 12.8.98 of the Calcutta Hfgh Court H 
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82 
SUPREME COURT REPORTS [1999] S.UPP.
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