1. The Sessions Judge of Kanara has referred to us a case, which has been committed to him, on the ground that the commitment was illegal and ought to be quashed.
2. What had happened is this: After the death of a certain person, another person put forward a will which, he said, had been made by the deceased, and in virtue of this will be claimed a change in the entries in the Record of Rights. This claim became a disputed claim which, under rules made by the Government, had to be enquired into by the Mamlatdar. The Mamlatdar made his enquiry; he saw the will produced before him. He came to the conclusion that there was grave suspicion attaching to the will and he declined to recognize it as a basis for any change in the Record of Rights. Eventually the case was taken up by a Sub-Divisional Magistrate under Clause (c) of Section 190 of the Criminal Procedure Code and was inquired into by him as a Magistrate and finally was committed to the Court of Session. As I mention his proceedings, I would like to say this: that they have been conducted in the most painstaking and thorough way and the mistake which has occurred is one which, at any rate, casts no reflection whatever on the manner in which he conducts magisterial work. The mistake is this: If the Mamlatdar in making his enquiry was a ' Court ' within the meaning of that word as used in Clause (c) of Section 195, then a sanction or complaint was required as provided by Section 195, before this case could proceed. We have come to the conclusion that the Mamlatdar in making this enquiry was a ' Court.' I should describe him as a ' Revenue Court ' but it matters very little whether you describe him in that way or as a Court.' The judicial result is precisely the same matter of this kind. I say that he was a 'Court' for these reasons: he had power to summon witnesses, to take evidence, although it may be not to administer an oath, to consider the evidence and to make a final order which might be, as in this case, an order of great importance and would be final unless changed by his superior on revision or appeal until there had been a decision of a Civil Court which conflicted with it. It seems to me that there are all the ingredients, required for a Court in these matters that I have stated. Therefore, I think that a sanction was necessary in this case. But I think it is more than a merely technical defect that there is not a sanction and for this reason. Supposing that a person aggrieved had applied to the Mamlatdar for sanction and supposing the Mamlatdar had, as he properly ought to do, called on these accused persons to show cause why sanction should not be given, and supposing then that they said 'sanction should not be given because we are about to apply for probate of this will:' if that were their reply, then I say it would be a monstrous thing for a Court forthwith to give the sanction. It might say ' I will allow you a month or two months' or whatever period might be reasonable within which to apply for probate ' and if within that time you have not applied, then 1 shall grant a sanction.' That view of the case shows, I think, very clearly that in a matter of this kind where there has been no inquiry into the genuineness of the will by a Court of Probate or by a Civil Court, the conducting of a prosecution without a sanction amounts to very much more than a mere technical defect.
3. We think that the proper order for us to make in this case is to quash the order of commitment and the whole of the proceedings before the Magistrate. And if it is determined, that this prosecution should take place, it must take place with that foundation and beginning which the law requires.
4. I am of the same opinion. The inquiry made by the Mamlatdar in this case was one which he was legally empowered to make under the rules relating to the Record of Rights. In conducting the enquiry he could exercise the powers referred to in Chapter XII-particularly in Sections 189 and 197-of the Land Revenue Code. He summoned the party interested and recorded evidence before making his order relating to the disputed entry in the Record of Rights. Section 196 of the Land Revenue Code has no application to this inquiry as it is neither formal nor summary under the Act. It may be, therefore, that the Mamlatdar cannot be deemed a Civil Court for the purposes of the inquiry. But I feel clear that the Mamlatdar holding an inquiry as provided in Chapter XII of the Land Revenue Code is a Revenue Court within the meaning of Section 195, Sub-section (1), Clause (c). As the offence in question is in respect of a document produced before the Mamlatdar in the inquiry made by him, and as there is no sanction or complaint of the Mamlatdar or of any other Revenue Court to which he is subordinate, it is clear that the Magistrate had no jurisdiction to take cognizance of the offence.