Norman Macleod, C.J.
1. This is a reference by the Additional Sessions Judge of Thana under Section 307, Criminal Procedure Code. The two accused were charged before the Additional Sessions Judge sitting with a Jury under Section 467 or Sections 467 and 109 or Section 114, Indian Penal Code, It was alleged that they had forged the will of one Kashinath Shanker, deceased, or had abetted the forgery thereof. The Jury disagreed, three were in favour of an acquittal, and two were of opinion that both the accused were guilty of abetment of forgery. The Judge, in making the reference, has expressed the opinion that both the accused were guilty, and has given his reasons therefor.
2. At the outset a point of law has been raised founded on the fact that no sanction was obtained prior to the prosecution. The will, which it is alleged was forged, was produced on the 19th October 1920 by the first accused in the Small Cause Suit No. 824 of 1920. No objection was taken at the trial on the ground of want of sanction, and if the accused had been convicted, and had filed an appeal to this Court, there can be no doubt that under Section 537, Criminal Procedure Code, that sentence could not have been reversed or altered for want of or any irregularity in any sanction required under Section 195 unless such want or irregularity had occasioned a failure of justice. But it has been argued that because the case comes before us under Section 307, Section 537 is not applicable. Under Section 307, Sub-section (3):-
In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the Jury, acquit or convict the accused of any offence of which the Jury could have convicted him upon the charge framed and placed before it.
3. The whole case, therefore, is open to the Court when hearing a reference under Section 307, Criminal Procedure Code, and in dealing with the reference, the Court exercises all the powers which it exercises on an appeal. But it would not have the power, if it were an appeal, of dealing with the case by altering or reversing the finding, sentence or order passed by a Court of competent jurisdiction for want of or any irregularity in any sanction required by Section 195, Criminal Procedure Code, unless such want or irregularity had occasioned a failure of justice, and it would appear to follow that it is not competent to this Court to take any action in consequence of a want of sanction which would take the form of an order quashing the whole of the proceedings and directing a re-trial since we do not think that any failure of justice has been occasioned. Such being the case, I think that we are entitled, although Section 537, Criminal Procedure Code, does not directly apply to a reference under Section 307, to hold that the fact that there was a want of necessary sanction before the prosecution was instituted is no ground for our declining to interfere in this reference.
4. [His Lordship after discussing the evidence concluded:-] I agree, therefore, with the Sessions Judge that the accused must be convicted under Section 467, read with Section 109, Indian Penal Code. The first accused is sentenced to two years' rigorous imprisonment and the second accused, considering his age, to six months' simple imprisonment.
5. I agree. I have nothing to add as regards the merits of the case.
6. I desire to deal briefly with the point of law which has been raised for the first time in this reference on behalf of the accused. The point is that as the will was produced in a civil suit, and as no sanction was obtained as required by Section 195, Criminal Procedure Code, the Court could not take cognizance of his offence. Admittedly this point was not raised either before the Committing Magistrate or before the trial Court, and the whole question is whether it is open to us to give effect to it at this stage, when the case is before us on reference under Section 307, Criminal Procedure Code.
7. It is clear from the provisions of Section 537 that in appeal we could not reverse or alter any finding, sentence or order passed by a Court of competent jurisdiction for want of any sanction required by Section 195, unless we were satisfied that such want had occasioned a failure of justice. The section does not in terms apply to a reference under Section 307. But Section 307, Sub-section (3), provides that 'the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the Jury, acquit or convict the accused of any offence of which the Jury could have convicted him upon the charge framed and placed before it.' It seems to me that these words are wide enough to cover the limitations which exist upon our powers in dealing with appeals. As the section provides that subject to the powers which we may exercise in appeal, we have to acquit or convict the accused, I think it is necessarily implied that what we cannot do on appeal in virtue of the provisions of Section 537, we cannot do on reference under Section 307.
8. The point is not free from difficulty, as we have to infer by implication a limitation on our powers as regards procedure and as the Legislature has omitted to provide in terms for such a case, though there is express provision as regards cases coming up for confirmation of sentences or by way of appeal or revision before this Court. But I think the implication is clear, and I do not see how we can refuse to give effect to that opinion in view of the terms of Sub-section (3) of Section 307. Subject to the powers which we may exercise on appeal this Court must consider the entire evidence, and after giving due weight to the opinions of the Sessions Judge and the Jury either acquit or convict the accused. I think, therefore, that the limitation contained in Section 537 applies to proceedings under Section 307. It is not suggested in this case that the want of sanction has occasioned any failure of justice. It is unfortunate, however, that the need for sanction, which was obvious, was not realised by the complainant or by the prosecution or by the lower Courts in time. I do not think that the want of sanction has any effect upon the present proceedings now.