1. This application is directed against an order of the District Judge of Patna refusing to revoke a sanction granted by the Munsif under S. 195 of the Code, to prosecute the petitioners under S. 193, I.P.C, for making certain statements before the Munsif in a suit before him.

2. The first question which I have to consider is, what is the power of this Court to interfere with the order of the District Judge? Clearly the order is not an order in a criminal case, and, therefore, this Court has no power to revise that order under the revision section of the Code of Criminal Procedure. It is conceded that the power exists under Section 115 of the CPC, and under Section 107 of the Government of India Act, but it is argued that circumstances which would attract the jurisdiction of this Court under the Code of Civil Procedure or under the Government of India Act are not present in this case, and, that therefore this Court will be loath to exercise its jurisdiction under these provisions. The only other section under which power may exist is S. 195 itself. Is there any power under Section 195 of the Cr PC, to interfere with the orders of the District Judge? That is the substantial question which I have to decide. If I had to decide this point for the first time, I would have considerable difficulty in holding that there is any power under the Code to interfere with the order of the District Judge when the District Judge approves of the course taken by the Munif either in granting sanction or in refusing sanction. Cl. (6) S. 195 runs as follows:

“Any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate.”

3. If there was nothing else in S. 195, then, in my view, there would be ample power in the High Court to revoke a sanction granted by the Munsif, because there cannot be any doubt that the Munsif is subordinate to the High Court. But Cl. (6) must be read together with Cl. (7). which gives a statutory meaning to the word “subordinate” which, in ray judgment, it is impossible to ignore. The material portion of Cl. (7) runs as follows:

“For the purposes of this section every Court shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie.”

4. The use of the word “deemed” is significant. It implies that the position deliberately created by Cl. (7) may not be true outside S. 195, and may be purely artificial, but that, for the purpose of S. 195, a Munsif's Court is subordinate only to that Court to which appeals from the Munsif's Court ordinarily lie, and to no other Court. Therefore, the short point is, to which Court do appeals from the Munsif's Court ordinarily lie? Only one answer is possible to the question, and that is to the Court of the District Judge and not to the High Court. Therefore it would appear that the only Court which can revoke a sanction granted by the Munsif is the Court of the District Judge.

5. But it was argued that, as the Court of the District Judge is clearly subordinate to the High Court, this Court is competent to set aside an order passed by the District Judge under S. 195. The answer to this argument seems to be that S. 195, Cl. (6), merely gives a power to revoke a sanction granted by the sanctioning Court or to grant a sanction refused by the sanctioning Court. Can it be said, in this case, that the District Judge has granted a sanction for the prosecution of the petitioners? In my opinion, it cannot. No doubt if the District Judge had differed from the Munsif then his order would be an order either granting or refusing sanction, and the High Court would have power under Cl. (6), S. 195 to interfere with the order of the District Judge. It is on this ground that the judgment of the Full Bench of the Madras High Court in the case of Muthuswami Mudali v. Veeni Chetti(1) can be supported. But where the District Judge merely affirms the order of the Munsif, it is difficult to see how he can be said either to grant or refuse sanction, giving to the High Court any power to interfere under S. 195.

6. But whatever my opinion may be as to the construction of S. 195, Cl. (6), it seems to me that I am conclusively bound by a construction put upon that clause by the Calcutta High Court and long acquiesced in, not only by that Court, but, so far as I can see, by this Court ever since its creation. In this Court we have adopted the principle that where there is a general practice sanctioned by concurrent decisions in the Calcutta High Court, we will not depart from it in Patna. If therefore Mr. Sen is right that the settled practice of the Calcutta High Court is to assert its jurisdiction with reference to applications made before it against orders of District Judges approving of sanction granted by the Munsif, then, speaking for myself, I would be loath to depart from that practice merely because I would construe S. 195, Cl. (6), differently.

7. What, then, is the settled practice of the Calcutta High Court in this respect? The learned Assisstant Government Advocate refers me to a case reported as Hamijuddi Mondol v. Damodar Ghose(2) in support of his contention that there is no such settled practice of the Calcutta High Court in this respect. In that case, the Calcutta High Court took the view that it was powerless to interfere under S. 195 with an order of the District Judge revoking a sanction for prosecution granted by a Munsif. But Rampini, J., who was a party to this decision, himself took another view in the later cases. In the case of Habibur Rahman v. Munshi Khodabux(3) Rampini, J., held that where a sanction to prosecute given by a Munsif was confirmed on appeal by the District Judge, the High Court had power to interfere under S. 195, Cl. (6). The point was again debated in the case of Girija Sankar Roy v. Benode Sheikh(4). Rampini, J., was again a party to this decision. The learned vakil who appeared to show cause expressly relied upon Hamijuddi Mondal v. Damodar Ghose for the proposition that the High Court was powerless to interfere under S. 195, Cl. (6). Rampini, J., distinguished that case in these words:

“That was a case in which it was held that the High Court cannot interfere, under Section 195 of the Cr PC, with an order of the District Judge revoking a sanction for prosecution granted by a Munsif. But the present case is one in which the District Judge affirmed the sanction and did not revoke it. We think we have the power to interfere with such an order under sub-S. (6), Section 195 of the Cr PC”

8. I do not profess to understand the distinction which was made by that learned Judge, but the Madras High Court is probably right in pointing out that the decision in Hamijuddi Mondol v. Damodar Ghose rested on the ground that an order revoking a sanction to prosecute was not a refusal of a sanction within the meaning of sub-S. (6). Whatever may be the basis of Hamijuddi Mondol v. Damodar Ghose, that case, at any rate, is no authority for the proposition that the High Court has no power to interfere with an order of the District Judge approving of sanction granted by the Munsif. The view of Rampini, J., who was a party to the decision in Hamijuddi Mondol v. Damodar Ghose, is clear and decisive on this point.

9. The next case to which I shall refer, the case of Emperor v. Har Prasad Das(5), is of importance in that it lays down the settled practice of the Calcutta High Court in this respect clearly and unambiguously. What was really in debate in that case was the power of the High Court to interfere with orders under Section 476 of the Cr PC, by Civil and Revenue Courts. Holmwood, J., in his order of reference to the Full Bench said as follows:

“Our own view of the matter in a recent case was that there was no question as regards the jurisdiction of the High Court in sanctions under S. 195. There it is expressly laid down that any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate, and in the case of an Assistant Settlement Officer the Special Judge would in the first instance deal with the matter and in the event of its going further, the Civil Bench of the group to which the case belonged. It is the settled practice in this Court to treat cases under S. 195 by way of appeal, and no question as to the revisional powers of the Court or the powers under the Charter arises.”

10. Holmwood, J., presided for a long time over the Criminal Bench of the Calcutta High Court, and his authoritative statement as to the settled practice of the Calcutta High Court in this respect cannot be ignored.

11. Thera is another case to which I must refer, the case of Ram Prosad Malla v. Baghbar Malla(6) on which the learned Assistant Government Advocate strongly relied. In that case, the District Judge revoked a sanction granted by the Munsif, but directed prosecution under S. 476 of the Code. Having regard to the decision of the Full Bench in the case of Begu Singh v. Emperor(7) the course adopted by the learned District Judge could not be justified, and the High Court had no difficulty in setting aside the order under S. 476. But the High Court was clearly of opinion that the order of the District Judge revoking the sanction granted by the Munsif was an erroneous order. It had therefore to consider the question whether it had any power to set aside the order of the District Judge revoking a sanction granted by the Munsif. The case, it will be seen, fell expressly within the ruling reported as Hamijuddi Mondol v. Damodar Ghose from which the learned Judges could not differ without referring the point to the Full Bench and they solved the difficulty by interfering under Section 115 of the CPC. This is the whole decision, and I am at a loss to understand how it may be said to assist the arguments of the Assistant Government Advocate. The headnotes are entirely misleading, but the actual decision is a clear intimation of the disagreement of the learned Judge with the view expressed in Hamijuddi Mondol v. Damodar Ghose. The case is certainly not an authority for the proposition that the High Court is power, less to interfere with the order of the District Judge approving a Munsif's sanction.

12. I think Mr. Sen is clearly right in his contention that it is the settled practice of the Calcutta High Court to exercise its jurisdiction in respect of applications made before it against the orders of District Judges approving of sanction granted by the Munsifs. I cannot say that this practice is against the statute law of the land, for, though I would construe Cl. (6) differently, the Calcutta High Court has undoubtedly taken the view that approval of sanction operates as giving of sanction and that therefore the High Court has power to interfere with the orders of District Judges. The question is whether I ought to depart from this construction of S. 195, which has been acquiesced in uninterruptedly for a large number of years. In my view, I ought not, unless there is any decision of this Court which directs me so to do.

13. This brings me to the Full Bench decision of this Court to which I was a party in the case of Lalji Tewari v. Emperor(8). The learned Assistant Government Advocate strongly relies upon the following passage in the judgment of Atkinson, J., with which I agreed:

“Sanction granted or refused by a Small Cause Court may come before this Court in its revisional jurisdiction under Section 115 of the CPC, or possibly under Section 107 of the Government of India Act, but not certainly under the provisions of Section 195 of the Cr PC, which is self-contained and marks out and defines the procedure applicable in its own terms.”

14. The sole question for our decision in that case was, to what Court could an application with respect to a sanction given or refused by a Court of Small Causes under S. 195 of the Code, be made for its revocation or grant, as the case may be? The point that was in debate before the Full Bench was, to what Court is the Court of Small Causes subordinate? The Full Bench decided that the Court of Small Causes is subordinate to the Court of the District Judge, and that therefore the District Court is the proper Court to review the order of a Provincial Small Cause Court granting or refusing a sanction passed under S. 195 of the Code. This is the only decision of the Full Bench and is of course binding on me. It is worthy of notice that Atkinson, J., based his decision largely on the settled practice of the Calcutta High Court in this respect, and it will be useful to cite the following passage from his judgment?

“It has been stated mote than once by distinguished Judges of this Court that where a uniform course of practice existed referable to particular legal principles in the Province of Bengal before the partition, that then this Court would recognize such practice in the administration of law in this Province.”

15. Atkinson, J., proceeded to say as follows:

“Therefore, on the grounds of continuity from long established practice I would have thought that in this Province at least a new departure would not have been hastily embarked on without consideration, which was inconsistent with the prior existing practice prevailing in old Bengal when the present Province of Bihar and Orissa fell within its jurisdiction.”

16. The passage cited from the judgment of Atkinson, J., on which the Assistant Government Advocate strongly relies, represented our view of S. 195, Cl. (6), but the question which has been argued before me was never in debate in the Full Bench case. There was no argument advanced to us on this point, no cases were cited on the settled practice of the Calcutta High Court in this respect, and we were not asked to consider whether, if and when the District Judge approved of the sanction granted by the Court of Small Causes, there would be any power in this Court to interfere with the order of the District Judge. Had the case been argued before us from this point of view, it would have been difficult for us to depart from a construction of S. 195, long acquiesced in by the Calcutta High Court, since we based our decision largely on the practice that prevailed in Calcutta before the partition. I still adhere to the view which I expressed in that case, but, when the point comes before me expressly for decision, I find it impossible to ignore the settled practice of the Calcutta High Court in this respect. The expression of our opinion on this point in the Full Bench case was in the nature of an obiter dictum and is of no binding authority. In this connexion, I may cite the following valuable passage from the speech of Halsbury, L.C, in the case of Quinn v. Leathern(9):

“There are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only on authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.”

17. I hold that this Court has power to question the propriety of the order of the District Judge approving the sanction granted by the Munsif.

18. The next point is, ought I to interfere in this case? In my view, I ought to interfere. There was great delay in this case in applying for sanction. In my opinion, the petitioners have been prejudiced by this delay, inasmuch as the serving peon is now dead. The whole point in the case is, was summons in a Small Cause Court suit served on the opposite party or not? The case of the petitioners is that summons was served. This is denied by the opposite party. There cannot be any doubt that the serving peon would, if he were alive, be an important witness in the case. It is argued that delay, is of no consequence when the Crown applies for sanction. That may be so, but still I have to Bee wether, in this case, delay has prejudiced the petitioner. In my opinion, it has. In the next place, it cannot be shown in this case with any certainty that the statements made by the petitioners must necessarily be false, as it could if the petitioners had made two contradictory statements. No person can be convicted under S. 193, except on proof that it is impossible that the statements of the party accused made on oath can be true. I have always taken the view that sanction to prosecute for perjury should not be lightly granted in cases like this, where the Magistrate would have to determine the question by merely weighing the evidence on both sides.

19. I would set aside the order passed by the learned District Judge and revoke the sanction granted by the Munsif.

V.S/R.K

20. Order set aside.