The Petitioners in this case were alleged to have resisted the Nazir of the Court of the Subordinate Judge of Midnapur in the execution of a decree of that Court. The matter was reported by the Nazir to the Subordinate Judge, who thereupon made an order granting sanction for the prosecution of the Petitioners under sec. 183 of the Indian Penal Code, the order purporting to have been made under sec. 195 of the Code of Criminal Procedure. An application was then made to the District Judge for revocation of the sanction. Upon that application the District Judge made an order revoking the sanction, and, being of opinion that there were grounds for an inquiry in respect of an offence under sec. 183 Indian Penal Code, he sent the case to the District Magistrate with a direction to him to hold the inquiry or trial himself or transfer it to some other Magistrate subordinate to him competent to deal with it. The grounds upon which the District Judge revoked the sanction were that it was given upon the report of the Nazir who had not applied for sanction, it did not appear who was to institute the prosecution, and it would have been better to make an order under sec. 476, Criminal Procedure Code. We are not, however, concerned with the sufficiency of these grounds.
A rule was granted to show cause why the order so far as it directs this inquiry should not be set aside on the ground that it was made without jurisdiction.
It has been contended before us that the offence, if any, under sec. 183 of the Indian Penal Code was not brought under the notice of the District Judge in the course of a judicial proceeding, and that being so he had no jurisdiction under sec. 476 of the Code of Criminal Procedure to make the order which is complained of.
In regard to cases coming within sub-sec. (1)(a) of sec. 195, Criminal Procedure Code, which deals with certain contempt of lawful authority of public servants, no action can be taken except on the complaint or with the previous sanction of the public officer concerned or some superior public servant to whom he is subordinate. In many of such cases neither the public officer concerned nor his superior officer is a judicial officer or an officer exercising judicial functions. An object of requiring the complaint or sanction of a public officer in such cases is to prevent proceedings being instituted by private persons. There may therefore be cases under this sub-section in which the granting or refusing of a sanction cannot be considered as a judicial proceeding.
In the present case the public officer to whom the Nazir was subordinate, was the Subordinate Judge but in granting sanction the Subordinate Judge did not in our opinion act judicially nor, in our opinion though we are not free from doubt, was the District Judge in revoking the sanction holding a judicial proceeding. That being so, we consider that the contention before us is right.
We desire to guard ourselves from appearing to lay down any general proposition that proceedings relating to the sanction of prosecution in other cases within sec. 195 are not judicial proceedings.
For the reasons given we make the rule absolute and set aside the order directing the inquiry.
S.C.S
Rule made absolute.
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