The case came on for hearing before Sundara Ayyar and Spencer, JJ., who delivered tbe following judgments:—
Sundara Ayyar, J.:— This is an application for the revocation of a sanction granted by the Second-class Magistrate of Madura town to prosecute the petitioner for an offence under section 211 of the Indian Penal Code. The petitioner, Audimulam, preferred a complaint against the respondent, Krishna Ayyar, and his wife, charging them with criminal breach of trust in respect of some jewels entrusted to them at a marriage which took place in his house. The Magistrate suspected that the case was false and directed the Police Inspector of Madura to hold a preliminary investigation under section 202 of the Criminal Procedure Code. The Inspector reported that the case was entirely false. Krishna Ayyar thereupon applied for sanction to prosecute Audimulam for preferring a false complaint, an offence punishable under section 211 of the Indian Penal Code, and the Magistrate granted the sanction. The District Magistrate, on application made to revoke it, refused to do so. A further application was thereupon made to the Sessions Judge. He dismissed it, regarding it as an appeal presented out of time. The Sessions Judge is wrong in supposing that an application to a superior Court to revoke a sanction granted by an inferior Court is an appeal coming within the purview of article 154 of Schedule II to the Limitation Act. Section 195, clauses (6) and (7), of the Criminal: Procedure Code, provides that “any sanction given or refused under that section by any Court may be revoked or granted by the Court to which appeals ordinarily lie from that Court.” But it does not provide in terms that an appeal lies from an order granting or refusing sanction. And Chapter XXXI of the Code, relating to appeals, does not provide that an appeal shall lie from an order granting or refusing a sanction. Proceedings instituted for such purpose have not, according to the practice of the Courts, been registered or treated as appeals, but as miscellaneous petitions—see rule 186 of the Criminal Rules of Practice. The power of the superior Court, no doubt, is similar to what it possesses in appeals, but the same may be said of the powers of the High Court in proceedings in revision—see section 439 of the Criminal Procedure Code—but this fact would not justify such proceedings being treated as appeals for purposes of time. I do not overlook the language of section 429, which speaks of the powers of a Court of Appeal under section 195, but that language is employed, in my opinion, only because it is the Court to which an appeal lies from the decisions of the Court granting the sanction that has got power to revoke a sanction or to give a sanction refused by an inferior Court. The Sessions Judge was therefore wrong in holding that the application to him was barred by limitation. We have consequently to decide whether the order granting sanction is right on the merits. Audimulam's complaint of criminal breach of trust was not tried on the merits by the Magistrate. On receiving the complaint, the Magistrate, to use his own words, “suspected that the complaint was the outcome of some jealousy,” and he finally dismissed it on the report of the Inspector of Police. In granting sanction, the Magistrate says that he believes that “the complaint brought by the counter petitioner is a deliberate concoction.” This conclusion is evidently based on the report of the Police. The Magistrate was not able to come to any such conclusion from the evidence of the complainant recorded in Court. His suspicion that the complaint was probably untrue was merely based on the ground that Krishna Ayyar's mother, who, according to Audiraulam, was his concubine, was a silk weaver and belonged to a different caste from Audimulam himself. The Magistrate's conclusion that the charge was false was therefore not based on legal evidence. The petitioner's argument that a sanction not based on legal evidence is illegal, must be upheld.
Mr. Devadoss, appearing for the Public Prosecutor, relies on a dictum of my learned brother in Moothavarapu Seshayya v. Gatram Ramayya(1), that an enquiry held under section 195 of the Criminal Procedure Code for deciding whether a sanction should be granted or not, need not be a judicial enquiry. The question argued in that case was whether a sanction granted without any enquiry for seeing whether there was a prima facie case against the accused was valid or not. The nature of the evidence which would justify a sanction did not arise for decision and the authorities relating to that question do not seem to have been brought to the notice of the Court. It is quite clear to my mind that, in cases falling under clauses (b) and (c) of sub-section (1) of section 195; a sanction can be granted only on materials which can be regarded as legal evidence according to the provisions of the Evidence Act. I feel no difficulty in holding that this rule is equally applicable, whether the investigation under section 202 of the Criminal Procedure Code is made by a Police Officer, or by the Magistrate himself. The offences under clause (b) for which sanction is required, are offences committed in or in relation to a proceeding in a Court, and those requiring sanction under clause (c) are offences committed by a party to a proceeding in a Court in respect of a document produced or given in evidence in such proceeding. Such proceedings being of a judicial character, evidence, can be admitted in them only in accordance with the provisions of the Evidence Act. It is true that a sanction given under clause (a) of sub-section (1) and sanctions under sections 196 and 197 need not in all cases be based on legal evidence. Some cases at least within clause (a) of section 195(1) have no reference to any judicial proceedings, and those within the purview of sections 196 and 197 are not connected with judicial proceedings at all. The sanction required is that of a public officer, contempt of whose lawful authority is the offence to be enquired into, or of an officer to whom he is subordinate, or of the Local Government, or of the Government of India.
The point raised in the case is really concluded by authority. In Queen-Empress v. Sheik Beari(2), a Full Bench of five Judges of this Court affirmed the proposition that a sanction for preferring a false charge must be based on legal evidence. The facts of two of the cases before the Pall Bench were very similar to those in the present case. Muttuswami Ayyar, J., observes: “There can be no doubt that sanctioning a prosecution for an offence is a judicial act and the proceeding held in connection with it is a judicial proceeding….. It seems to me, from the very nature of the case, that an opinion must be formed as to whether a sanction should be given or refused upon legal evidence…. But in cases in which the Magistrate dismisses the original complaint upon a report from the police, there is no legal evidence before him upon which he is in a position to frame his opinion. It is irregular to substitute the opinion of the police officer who made the report for that of the Magistrate.” Kernan, J., says: “It appears to me that a sanction granted by a Magistrate merely on the report of the police is not the sanction required by law. The law requires the Magistrate to exercise his own judgment on the facts proved before him, and decide whether the case is one in which sanction should be accorded.” In In re Paree Kunhammed, Bhashyam Ayyangar, J., held the same view. (See page 119.) See also In re Gubala Rami Reddi and Queen-Empress v. Ganesh Ramakrishna(3). In In the matter of Kalagava Bapiah(4), Bhashyam Ayyangar, J., points out the distinction between a sanction given under clauses (b) and (c) of section 195(1) and a sanction given under section 197. He observes: “A Court granting sanction under section 195, clauses (b) and (c), does so in connection with offences committed in or in relation to any proceeding in such Court, and the Court therefore acts in its judicial capacity in granting a sanction upon legal evidence. But the Government, in according or withholding sanction under, section 197, for the prosecution of a public servant in respect of an offence alleged to have been committed by him as such public servant, acts purely in its executive capacity, and the sanction need not be based on legal evidence.” The distinction between a sanction given for offences under clause (a) of section 195 and clauses (b) and (c) is pointed out in Jadu Nath Mahta v. Jagadish Chandra Deb. Where there are not sufficient grounds for granting sanction, it is open to a Court to lay a complaint of offences referred to in clauses (b) and (c) of section 195. Such a complaint cannot be interfered with by a superior Court: see Queen-Empress v. Ankanna and Queen-Empress v. Sreenivasalu Nayudu. I am of opinion that the legislature intended in section 195 to provide two alternative modes in which a Court may proceed, one, to make a judicial pronouncement that there is a prima facie case for an enquiry into an offence, leaving the initiation of criminal proceedings to others, and the other, to put the criminal law in motion, itself by a complaint. The two modes are in my opinion quite different in character.
In Kachi Madar Lebbai v. Emperor, I held that an order directing a prosecution under the allied section 476 must be based on legal evidence, and referred to section 478, which empowers a Court, to whose notice an offence referred to in section 195 is brought in the course of a judicial proceeding, to complete the enquiry and commit the accused to a Court of Sessions—a provision which conclusively shows that the order of the Court must be based on legal evidence. Queen v. Nujum Ali(5) cited in Moothavarapu Seshayya v. Gatram Ramayya(6), seems to have no bearing on the question, as what was decided in that case was that the admission of illegal evidence by a Court convicting an accused person is not, of itself, sufficient ground for reversing the conviction, if, in the opinion of the Appellate Court, the other evidence on record would be sufficient to sustain it.
I am, for these reasons, of opinion that the sanction should be set aside.
Spencer, J.:— In this case, the Second class Magistrate of Madura town received a complaint of criminal breach of trust, and, after examining the complainant under section 200 of the Criminal Procedure Code, suspecting the complaint to be the outcome of jealousy, he referred it under section 202 of the Criminal Procedure Code to the police for investigation. On receiving the police report, he dismissed the complaint under section 203 of the Criminal Procedure Code. The petitioner, whose prosecution was sanctioned, preferred an unsuccessful appeal to the District Magistrate. He next approached the High Court with a revision petition, which failed as he had not exhausted his right of appeal from the District Magistrate to the Sessions Judge. He then appealed to the Sessions Judge, but his appeal petition was dismissed for delay. He has again come to the High Court with a criminal revision petition.
In the first place, it may be noted that the Sessions Judge was not in order in treating the petitioner's application as one for the admission of an out-of-time appeal. There is no rule of law which subjects applications made under the special provisions of section 195 of the Criminal Procedure Code to the periods of limitation contained in the Limitation Act. It was held in Queen-Empress v. Ajudia Singh that article 178 of Act XV of 1877 did not apply to applications made under this section.
Neither can appeals preferred under clauses (6) and (7) of section 195 be treated alike with appeals under chapter XXXI, which are governed by articles 154, 155 and 157 of the Limitation Act. While on the subject of limitation, I do not wish to be understood to say that delay is a matter that may be dismissed from consideration. Courts may, in the exercise of their discretion, refuse to grant sanction in cases where there is great delay in applying for it: vide Venkatrayadu v. Sri Venkata Krishna Yachendra.
The objection is taken that the sanction is bad because it is based on the police, investigation and because the Magistrate made no independent judicial enquiry into the truth of the complaint, beyond recording the complainant's statement on oath when the complaint was presented.
The petitioner's vakil relies on the decisions in Queen-Empress v. Sheik Beari, In re Paree Kunhammed and also upon Kachi Madar Lebbai v. Emperor.
The first of these is a decision by a Full Bench involving three distinct revision cases. In dealing with Queen-Empress v. Sheik Beari, Kernan, J., observed at page 239: “It appears to me that sanction granted by a Magistrate merely on the report of the police is jot the sanction required by law,” and, referring to the circumstances of that particular case, which was instituted by information given, in the first instance, to a village magistrate and a police officer and, later, by a complaint to a Second-class Magistrate, he observed further: “What the details of the statement of the accused to the Magistrate made on the 5th November were, does not appear. But I do not doubt that the Magistrate made such investigation as he thought the circumstances required, to satisfy himself whether an offence of false complaint was committed, and whether sanction ought to be granted before he made the order for sanction. He did not act merely on the report of the police. If he had done so, his order, made merely on the police report, should be held to be illegal.” Muttuswami Ayyar, J., expressed the same principle in other words: “It is irregular to substitute the opinion of the police officer who made the report for that of the Magistrate.” Brandt, J., pointed out that the test to be applied is whether or not the Court giving or refusing the sanction had before it legal evidence upon which to form a decision, and that there cannot be said to be legal grounds for a decision as to whether sanction should be allowed or refused, where the original complaint; is dismissed upon a reference to, and report made by, a police officer alone.
The outcome of the Full Bench decision was that sanction was held to be not given improperly only by reason of previous notice not having been given, provided that the Magistrate who gives the sanction examines the complainant and gives him an opportunity of proving his complaint in a judicial enquiry. From the use of the expressions “legal evidence” and “judicial enquiry” in this decision, I do not understand the learned Judges as meaning to lay down more than the principle, that the authority according sanction under section 195 must act on his own judgment and not substitute for it the opinion of others. There is nothing in the Code to require a Court to take statements of witnesses on oath, if it is considered necessary to hold a preliminary enquiry, and if such an enquiry is held before the grant of sanction. Chapter XXV of the Criminal Procedure Code, which deals with the made of taking and recording evidence in inquiries and trials, would not apply to such an enquiry, which is not expressly provided for by section 195 or any other section in Chapter XV. In the present case, for instance, instead of referring the complaint to the police for investigation, it was open to the Magistrate to have made an investigation himself into the truth of the complaint under section 202 before issuing process, and statements made by witnesses at such an investigation would not have been recorded on oath, nor could sanction be accorded for prosecuting witnesses for false statements made at such an investigation as constituting an offence under section 193, Indian Penal Code: vide Velu Nair v. Gnana Prakasam Pillai and Queen-Empress v. Venkataramana. A Magistrate proceeding under section 195 of the Criminal Procedure Code would not be wrong, in my opinion, if he took into consideration statements made before himself, not on oath, in the course of an investigation made by himself under section 202 of the Criminal Procedure Code. I agree with the opinion of Ayling, J., in Kachi Madar Lebbai v. Emperor that an order under section 476 of the Criminal Procedure Code need not necessarily be set aside because it proceeds wholly or partially on a consideration of the result of a preliminary enquiry under section 202 of the Criminal. Procedure Code. The decision of Bhashyam Ayyangar, J., in In re Paree Kunhammed, does not go further than saying that the authority giving sanction under section 195 should never be influenced in giving sanction by evidence which, it ought to know, will be altogether inadmissible against an accused person in a criminal trial.
It is, no doubt, necessary to give complainants an opportunity of proving their case which has been thrown, out merely on a police report, before sanctioning their prosecution—vide Queen-Empress v. Ganga Ram and Government v. Karimdad.
In the present case, according to the District Magistrate's order it appears that this procedure was followed but no witnesses were examined by the petitioner or by any one on his behalf.
Supposing a complainant, to whom notice is given of a Magistrate's intention to deal with him under section 195, declines to examine his witnesses, or, being given an opportunity of doing so, omits to take advantage of it, is the Magistrate bound to undertake suo motu a magisterial enquiry into the truth of the complaint? I think not, if the Magistrate is satisfied on the material before him that there is a prima facie case for a prosecution, and that it is proper, in the interests of public justice, that the complainant should be prosecuted, although he, no doubt, has the power to make an independent enquiry, if not so satisfied—vide, Queen-Empress v. Motha. I may also refer in this connection to Baperam Surma v. Gowrinath Dutt and the observation of the learned Judges who decided that case, that the adoption of a rigid rule that a preliminary enquiry should be held in every case of sanction, would have the effect of introducing into the criminal procedure in this country a new stage as a matter of imperative necessity (page 478). It was considered at one time in the history of sanctions that a Court had no power to go beyond the record in determining whether or not sanction should be granted—Zemindar of Sivagiri v. The Queen. This view became altered after the passing of Act X of 1882, and the change found expression in Queen-Empress v. Motha. The modern tendency of parties and practitioners is to expect a sort of preliminary trial in every case, and to appeal, if the proof before the, sanctioning Court falls short of what would ordinarily be required for framing a charge in a warrant case. But section 195 puts sanctions on a footing similar to that of complaints by public servants of offences against public justice, and it can hardly be suggested that any preliminary enquiry is necessary for complaints which are of matters within the knowledge of the Court or public servant concerned.
Now, in the case before us, the Magistrate did not act merely on a police report; for, he says, he examined the complaint before he referred the matter to the police under section 202, and the result of his examination was that he at once suspected the truth of the complaint. The statement taken by the Magistrate from the complainant is not before us, so that I am not able to express an opinion that, taken by itself, it would not justify the Magistrate in thinking that a prima facie case was made out for prosecuting the complainant. It is impossible for me to discriminate and say how far the Magistrate's order was based upon his own enquiry and how far upon the police investigation in a case where the sanction is not based entirely on a police report.
I prefer to follow Kernan, J., in the extract quoted above from Queen-Empress v. Sheik Beari who, when the details of the statement did not appear, remarked that he did not doubt that the Magistrate made such investigation as he thought the circumstances required to satisfy himself whether an offence of false complaint was committed.
As regards the propriety of a prosecution, there can be no room for doubt here of this being an eminently fit case for prosecuting the petitioner, if his complaint was false, for his object, in the opinion of the Magistrate, was to use the facility afforded by the law as an instrument for putting pressure upon the person complained against to place his wife at the complainant's disposal.
In my opinion, the requirements of the law have been substantially complied with, and no case has been made out that would justify us, acting as a Court of Revision, in quashing the sanction already accorded and confirmed by the proceedings of two superior Courts.
I would therefore dismiss the petition.
The case having been set down to be spoken to for argument as to the result of the difference of opinion as above, the following Order of Reference to the Full Bench of the Court was delivered by
Sundara Ayyar, J.:— In this case the High Court was invited to set aside a sanction granted by the Second class Magistrate of Madura town. The District Magistrate refused to revoke the sanction on application made to him under section 195, clause (6) of the Criminal Procedure Code; and the Sessions Judge of Madura also refused to revoke it on a further application made to him under the same provision of law. In this Court, we have been unable to agree on the question whether the sanction should be revoked or not, one of us holding that it should be, and the other, that it should not be revoked.
The question has now arisen: what in the result, or, what order is to be passed, when we differ in our opinions.
It is contended by Mr. Govindaraghava Ayyar, who appears for the petitioner, that the opinion of the Senior Judge should prevail, while Mr. Devadoss, appearing for the Public Prosecutor, contends that the case should be referred to a third Judge of this Court with our opinions, under section 439 of the Criminal Procedure Code. If the order be regarded as one passed under that section, it is not contended that. Mr. Devadoss is not right. But the petitioner argues that our jurisdiction was invoked by him under, section 195, clause (6), and that section 36 of the Letters Patent, according to which the opinion of the Senior Judge should prevail, is applicable to the case. It is admitted that section 36 governs all cases which are not specially provided for by the Criminal Procedure Code or the Civil Procedure Code.
It has therefore to be decided, whether the, provision in section 439 of the Criminal Procedure Code, that “when the Judges composing a Court of Revision are equally divided in opinion, the case shall, be disposed, of in manner provided by section 429,” is applicable to the case.
We may, before proceeding further, observe that there was some controversy at the hearing, as to whether the petitioner put in his application to this Court under section 195, clause (6), or under section 435. The petition itself does not refer to any particular section. Of course, if the jurisdiction of this Court could be invoked only in one particular manner, it can be regarded as exercised only in that manner. But, if the Court has power to exercise its jurisdiction in more ways than one then it would be open to a litigant to invoke it in any of the ways in which, it might be exercised. Assuming at present that section 195(6) and section 435 provide two different ways in which this Court's jurisdiction may be exercised, we have come to the conclusion that the petitioner trust be taken to have applied to the Court to exercise its powers under section 195(6). At the heading of the petition, it is at first styled “Memorandum of Criminal Revision Petition,” but it is subsequently described as “In the High Court of Judicature at Madras, Criminal Miscellaneous Petition No. 498 of 1911 and the petition proceeds to say that the petitioner in this Court begs to prefer this petition for the revocation of sanction granted by the Madura Sessions Court by its order in “Criminal Miscellaneous Petitions Nos. 38 and 39 of 1911;” and the petitioner describes himself as “appellant,” as is often done when proceedings are instituted under section 195, clause (6). rule 186 of the Criminal Rules of Practice framed by this Court provides, that an application made to the Court under section 195 of the Criminal Procedure Code for the revocation of a sanction “should be registered as a Criminal Miscellaneous Petition and not as a Revision Petition“. As the petitioner intended to put in a Criminal Miscellaneous Petition and described himself as appellant, we are of opinion that the application should be taken to have been put in under section 195(6), if it could legally be presented under that section.
It is urged for the Crown that no petition would lie to this Court under section 195, clause (6), as the petition is not one asking us to revoke a sanction granted by the Sessions Court, as that Court did not itself give any sanction, but only refused to revoke the sanction granted by the Second-class Magistrate or, more correctly speaking, refused to set aside the order of the District Magistrate, who refused to revoke the sanction granted by the Second-class Magistrate.
For the petitioner it is argued that an order refusing to revoke a sanction must be regarded as one granting a sanction and that the application to this Court should therefore be viewed as one for the revocation of a sanction granted by the Sessions Court. This is a question on which there is conflict of authority. The petitioner's contention, if upheld, would lead to the result that, where a Court subordinate to this Court merely refused to revoke a sanction granted by an inferior Court, the result of a difference of opinion between the Judges composing the bench hearing the petition would depend on whether the jurisdiction of the Court is invoked under section 195, clause (6), or under section 435—the result being apparently different in each case.
This has induced us to consider whether, in reality, the petitioner has an option to move this Court in such a case either under section 195(6) or section 435.
It seems to us that, an order refusing to revoke a sanction cannot properly be regarded as an order granting a sanction. Clause (6) of section 195 provides that “no sanction shall remain in force for more than six months from the date on which it was given, provided that the High Court may, for good, cause shown, extend the time.” It appears to us to be clear that the six months must be computed from the date of the order of the Court which originally granted the sanction, and the contrary has, 85 far as we are aware, never been held. If an order refusing to revoke can be regarded as an order granting a sanction, the result would be that the sanction would be in force for six months from the date on which the last Court whose jurisdiction is invoked, refused to revoke it, and, if that Court is the High Court, for six months from the date of its order. And it would be unnecessary for the High Court in such cases to pass any order extending the time. This, in our opinion, was clearly not the intention of the legislature.
Besides, it seems to be hardly right to speak of an order refusing to revoke as an order giving a sanction which has already been given.
We have both come to the conclusion, as stated in our opinions on the petition itself, that an application under section 195, clause (6), cannot strictly be regarded as an “appeal.” The jurisdiction exercised by a Court under that clause may no doubt, be regarded as similar to an appeal. But it may also be regarded as similar to a revisional jurisdiction.
It will be noted that clause (6) applies not only to cases of application to a superior Court of justice, but to superior executive officers or to Government, to whom the authority granting the sanction is subordinate, and the legislature appears to have deliberately refrained from describing the proceeding before the superior officer as either “appeal” or “revision.” In Muthusami Mudali v. Veeni Chetti, a bench of three learned Judges of this. Court held “that an order revoking a sanction is a refusal of a sanction and that; an order confirming a sanction is the giving of a sanction,” while two other learned Judges, Benson and Wallis, JJ., expressed a contrary opinion in their order of reference to the Full Bench. In Palaniappa Chetti v. Annamalai Chetti, which was approved in Muthusami Mudali v. Veeni Chetti, Bhashyam Ayyangar and Boddam, JJ., in speaking of an order refusing to revoke a sanction, observed:
“An order pissed by the Court of Appeal is in law the order which ought to have been passed by the subordinate Court and will have the same efficacy and operation as the order which ought to have been passed by the latter.” But the learned Judges proceed to say “that section 439, Criminal Procedure Code, provides that the High Court, as a Court of Revision, may exercise the powers conferred on a Court of Appeal by section 195” It is, by no means, clear to us that they intended to lay down that the High Court's jurisdiction in setting aside an order refusing to revoke a sanction is to be exercised under section 195, clause (6), and not under sections 435 and 439. The jurisdiction of the Court was as a fact exercised in this case not under either of those sections but under section 15 of the Charter Act, the order refusing to revoke having been passed by a Civil Court. In Hamijuddi Mondol v. Damodar Ghose, Rampini and Geidt, JJ., held that an order refusing to revoke is not an order granting a sanction. In Habibar Rahaman v. Khoda Bux, Rampini and Mookerji, JJ., held a contrary view. The judgment contains no reference to the previous judgment in Hamjuddi Mondol v. Damodar Ghose. The Allahabad High Court in Emperor v. Serh Mal has dissented from Muthusami Mudali v. Verni Chetti. In Habibar Rahaman v. Khoda Bux, the order refusing to revoke is regarded as an order confirming a sanction. The language employed by the learned Judges in Palaniappa Chetti v. Annamalai Chetti seems, to Borne extent, to support; this view. No doubt, where a Court of Appeal has plenary jurisdiction over a cause, its function is, not merely to refuse to interfere with the decision of the Court from whose decision the appeal is preferred, but also to confirm it; and its judgment when it does, so, takes the place of the judgment of the Court of First Instance. The sections relating to appeals in both the Civil and Criminal Procedure Codes lay down explicitly that the Appellate Court is to confirm the judgment of the first Court where it does not interfere with it. But it appears to us that the function of a superior Court is not the same where its powers of interference are limited to special grounds. A Court of Error does not confirm the judgment of the inferior Court whose decision it refuses to interfere with. The same would seem to be the case with respect to a Court of Revision and the Court of Second Appeal, in civil cases where there is no question of law and the Court merely dismisses the second appeal on that ground. With all deference, it seems to us that it should not be assumed that a Court refusing to revoke a sanction under section 195(6) can be taken to confirm the sanction, so as to make the sanction one granted by itself. The provision with regard to extension by the High Court of the time during which the sanction is to be in force seems to us to be a strong argument against such a view. That provision does not seem to have been brought to the notice of the Court in Muthusami Mudali v. Veeni Chetti.
Mr. Devadoss contends that all applications to the High Court in any matter relating to a sanction must be regarded as petitions for revision. This contention is in our opinion untenable. Section 439 itself, seems to supply a conclusive answer to the argument. It provides that in revision the High Court may exercise the powers conferred on a Court of Appeal by sections 195, 423, 426, 427 and 428. The powers under the last four sections, which apply primarily to appeals, are exercisable is revision, which is not an appeal. Similarly the power under section 195, which primarily vests in a Court of Appeal, is exercisable by the High Court in revision. If the Court which gives or refuses a sanction is immediately subordinate ter the High Court, section 439 would not be necessary to give it power to revoke or give the sanction given or refused, as section 195 itself gives it. The exercise of powers under section 439 cannot itself be an exercise of it under section 195, though it is of the Same kind of power as is given by section 195. Where the Court giving or refusing sanction is not immediately subordinate to the High Court, it has undoubtedly powers of revision Under section 439, whether it has power under section 195 or not. But section 439 seems clearly to show that a proceeding before the High Court under section 195 cannot itself be regarded as a proceeding under section 439. No doubt, section 439 refers to “any proceeding the record of which has been called for by itself or which has been reported for orders: or which otherwise comes to its knowledge. But this will not justify a proceeding under section 195 being regarded “as a proceeding which comes to its knowledge” within the meaning of the section. The clause appears to relate only to the source of knowledge of the High Court regarding the proceeding sought to be revised. That source may be either information received by itself directly (as by examination of a criminal calendar sent up to it) or a report made by an inferior Court or information received otherwise. This last source seems to refer to information derived from the accused or complainant or the Crown through the Public Prosecutor. A different construction would have the result of including appeals also within the purview of section 439. We therefore cannot accept the argument that proceedings under section 195 are ipso facto proceeding under section 439. If an order refusing to revoke a sanction cannot be regarded as one granting a sanction then the High Court's powers of interference with such as order would be only in revision under section 439, and the rule laid down in section 429 will regulate the procedure to be followed in cases of a difference of opinion between the Judges hearing the application, and this is the view we are inclined to take.
Mr. Devadoss contends that, even if an application under section 195, clause (6), cannot be regarded as one under section 435, the proper course in case of difference of opinion is to follow the procedure laid down in section 429, and be refers to two cases in support of this contention—viz. Queen-Empress v. Dalana and Queen v. Mukhun. In the first case Jardine and Candy, JJ., held that, where there was a difference of opinion in a reference by a Sessions Judge under section 307 of the Criminal Procedure Code, the proper course was to refer the case to a third Judge. The point was not argued, as stated in the judgment—see pages 474. The learned Judges say: “There appears to have been no previous instance of Judges differing on a reference made under section 307. In a case under the corresponding section of the older Code [Queen v. Mukhun] the course adopted by the High Court of Bengal was to lay the case before a third Judge. We are of opinion that section 307 with perhaps section 439 applies section 429 about appeals to cases of reference and that this seems the justest and best procedure to follow. So we adopt the example of the Calcutta Court and do not dispose of the case in the manner provided by section 36 of our amended Letters Patent, i.e, by the opinion of the Senior Judge.” The learned Judges treated themselves as a Court of Revision in hearing a reference under section 307.
Assuming that this view is correct, regarding which we express no opinion, the present case is not one of a reference by a lower Court.
Queen v. Mukhun was also a case of reference with respect to the verdict of a jury. The question of the procedure to be followed in case of a difference of opinion is not discussed. If the view taken in Muthusami Mudali v. Veeni Chetti that an order refusing to revoke a sanction is tantamount to one granting a sanction, be adhered to, the question of procedure in case of a difference of opinion is likely to be of frequent occurrence. It may also arise in cases where the High Court is asked to interfere with an order granting or refusing a sanction passed by a Court immediately subordinate to it. We consider it desirable that the question should be authoritatively decided and we therefore refer to a Full Bench the following questions:—
(1) Is an order refusing to revoke a sanction one granting a sanction, in which it is open to a party dissatisfied with the order to apply to a superior Court under section 195, clause (6), Criminal Procedure Code?
(2) Is the procedure described in section 429, Criminal Procedure Code, or in section 36 of the Letters Patent to be followed where an application to the High Court is made under section 195, clause (6), to revoke a sanction granted by a lower Court or to give a sanction refused by it, when the Judges composing the bench hearing the application differ in opinion?
This case coming on or hearing in pursuance of the above orders and upon hearing the arguments of the pleaders aforementioned, the following Opinion of the Court was delivered by
White, C.J:— We are not prepared to dissent from the conclusion arrived at by a Full Bench of this Court in Muthusawmi Mudali v. Veeni Chetti.
We think, however, the power conferred upon this Court by section 195(6) of the Code of Criminal Procedure is not a part of the appellate and revisional jurisdiction of this Court conferred by Chapters 31 and 32 of the Code of Criminal Procedure. It is a special power conferred by section 195(6). It follows, therefore, that when the Judges are equally divided the case is governed by section 36 of the Letters Patent and not by. Section 429 or section 489 of the Code of Criminal Procedure.
Our answer to the first question referred to us is in the affirmative. Our answer to the second question is that, in the case stated, the provision described in section 36 of the Letters Patent is to be followed.
N.R
Comments