1. In the appeal before us, Mr. Gill, the counsel for Lakshman, has taken objection, on his behalf, to the sufficiency of the sanction given by the District Magistrate. He contends that, under Section 466 of the Code of Criminal Procedure, no complaint can be entertained for any offence whatever against any public servant not removeable from his office without the sanction of the Government, except with the sanction of the Government itself; and that the sanction by the District Magistrate, besides being vague and indefinite, is insufficient. He referred to the case of Regina v. Parashram Keshav 7 Bom. H.C. Rep. 61, in which it was held that Section 167 of the superseded Code of Criminal Procedure, which corresponds with Section 466 of the one now in force, required such sanction to give jurisdiction to the trying Court, and that a conviction, founded on evidence taken without such sanction, was bad. He argued that Section 466 does not restrict itself to chapter IX or any other chapter of the Indian Penal Code.
2. We felt some doubt as to the scope of the language used by Mr. Justice MELVILL (who delivered the judgment of the Court in that case) in relation to this point. He says at page 63: 'But we agree with the view that Section 167 relates only to those acts and omissions which are declared in the Penal Code to be offences when they are committed by a public servant.' We have, therefore, consulted him, and we find that he did not intend to say that, if there were acts and omissions on the part of a public servant outside the Penal Code, or even within the Code, if the official character of the accused was essential to them, Section 167 did not apply. The case he was considering was one which fell within the operation of that Code, and his observations were directed to a denial of the limitation imposed by a circular of the High Court of Calcutta not to laying down a new limitation of the operation of the enactment he was considering.
3. We are of opinion that the scope of Section 466 extends to all acts ostensibly done' by a public servant, i.e., to acts which would have no special signification except as acts done by a public servant. In the present case a mahalkari, an officer invested with the powers of a Judge in a certain class of cases, is charged with fabricating the proceedings of a case from the plaint to the decision, purporting to have been held before himself and complete in every respect, including the signature with his proper official designation. The very object of the fabrication would be to invest those proceedings with a special character, and it is, we think, proper that the alleged fabricator should be dealt with in his official capacity under the provisions specially enacted; although private individuals charged with the same acts or omissions, or acts in one sense the same, would be proceeded against in the ordinary way.
4. We are thus led to the construction of Section 466. The first paragraph of it runs thus: 'A complaint of an offence committed by a public servant in his capacity as such public servant, of which any Judge or any public servant not removeable from his office without the sanction of the Government is accused as such Judge or public servant, shall not be entertained against such Judge or public servant, except with the sanction or under the direction of the Local Government, or of some official empowered by the Local Government, or of some Court or other authority to which such Judge or public servant is subordinate, and whose power so to sanction or direct such prosecution, the Local Government shall not think fit to limit or to reserve.' This paragraph prohibits 'the entertainment of a complaint' without sanction, and allows the sanction of the Government to be given by deputy. The second paragraph prohibits the 'prosecution' of such Judge or public servant, unless with 'the, sanction of Government.' This provision, it must be remembered, was not contained in the old Code,--a circumstance which militates, prima facie, against the construction that the second paragraph merely expresses in a condensed form what the Legislature has set out in the first in greater detail.
5. One possible mode of harmonizing the two paragraphs, is to apply the first to complaints by persons injured or by those who, in the interest of justice, take upon themselves to impeach the conduct of public servants; and to apply the second to prosecutions initiated by Magistrates without any complaint. But a little consideration is, we think, sufficient to show the untenability of this construction. Magistrates may be expected to be careful to have strong grounds before they begin prosecutions against public servants, and it is most unlikely that the Legislature would insist upon the sanction of the Government itself with regard to these prosecutions, and yet allow a vicarious sanction to be given when private individuals take the initiative.
6. Mr. Gill has argued that the use of the word 'complaint' in the first, and that of the word 'prosecuted' in the second paragraph point to different stages in the proceeding. This distinction, though ingenious, we are unable to adopt. We think that a prosecution commences when a complaint is made. The observations of Willes, J., in Austin v. Dowling L.R. 5 C.P. 534 are pertinent to this point. He says: 'The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a Magistrate, one makes a charge against another, whereupon the Magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer, The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment. 'And in the case, to us a very familiar one, of appeals under Section 211 of the Indian Penal Code, we have always held that, when a complaint is made, the proceedings have been instituted and the prosecution has commenced,--the reception of the complaint being a stage of the judicial proceedings towards conviction.
7. It appears to us, on a careful consideration of the whole subject, that paragraph one of Section 466 is intended to apply, at least, chiefly to the cases of persons specially responsible to Government, such as accountants, for instance, who have failed in their duty; and that paragraph two is directed to persons professing to exercise certain authority, and with that pretext doing an act which is impeached by a subject on the ground of its being wholly unwarranted, or of an excess or impropriety of some kind. In respect of this paragraph the question for decision would generally be authority or no authority; under the first did the alleged acts or omissions occur.
8. This being our opinion on the question of construing Section 466, we turn to the question of the sufficiency or otherwise of the sanction recorded in this case. We are of opinion that the case of the mahalkari falls within para. 1 of this section, and that the sanction given by the District Magistrate is sufficient, this officer being indisputably the mahalkari's superior, and his power not being in any way limited by the Government. We must also overrule the objection on the ground of vagueness. The direction to prosecute the mahalkari under Section 466 or any other section which may seem applicable after further investigation, fully legalizes hi? trial.
9. Mr. Kashinath Telang, on behalf of his client Vaman Hari, has raised another preliminary point. He contends that the subject-matter of the litigation before the Subordinate Judge, in which the alleged fabricated evidence was produced, involved more than Rs. 5,000; that an appeal would consequently lie direct to the High Court, which, therefore, is the Court to which the Court of the Subordinate Judge is subordinate for the purpose of giving sanction to Vaman's trial. And he laid stress on the fact that the Subordinate Judge had specially declined to grant the sanction when applied for. This objection, also, we must decide in favour of the Crown. The subordination, of the Civil Courts is regulated by Act XIV of 1869 and it, in distinct words, makes the Court of the Subordinate Judge subordinate to the Court of the District Judge: whether an appeal lies or does not lie in a certain class of cases to that Court, is not a final criterion to determine the subordination. The Code of Criminal Procedure gives no appeal from the decision of a First Class Magistrate to the Magistrate of the District and yet this Court, in the case of Imp. v. Padmanabh Pai (supra, p. 384), held that for the purposes of Section 468 he was subordinate to him. The subordination spoken of in this section is the general subordination irrespective of special considerations of convenience or otherwise which induced the Legislature to provide a direct appeal to the High Court in certain matters of exceptional importance. The Civil Courts Act gives the District Judge power to suspend a Subordinate Judge, and it would be unreasonable to say that the Court of the latter is not subordinate to that of the former.
10. A similar objection raised by Mr. Ghanasham Nilkanth, on behalf of his client Balaji, must be disposed of in the same way.
11. [His Lordship then proceeded to discuss the case on the merits, and ordered the acquittal of all the three accused persons.]