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Abdul Latif Usman Vs. Haji Tar Mahomed - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 148 of 1921
Judge
Reported in(1922)24BOMLR817
AppellantAbdul Latif Usman
RespondentHaji Tar Mahomed
DispositionAppeal dismissed
Excerpt:
criminal procedure code (act v of 1898), section 195-sanction to prosecute-grant of sanction-sanction granted by a single judge on the original side of the high court-appeal to the court of appeal in the high court.;an appeal lies to the court of appeal in the high court from an order passed under section 195 of the criminal procedure code 1898, by a single judge on the original side of the high court, granting or refusing a sanction to prosecute. - - -] i am satisfied that the circumstances which have been fully stated by mr. but so far as it concerns the question about our jurisdiction to hear this appeal, i should like to say this much......rule as regards courts, and the test of subordination for the purpose of that clause is whether an appeal ordinarily lies from the court which granted the sanction to the court which is asked to revoke it. now if that is the test, it is, i think, clear that inasmuch as the judge who heard this matter was sitting as a court and inasmuch as the appeal ordinarily lies from his judgment by virtue of clause 15 of the letters patent to a bench of two judges sitting as a court, therefore we have here the jurisdiction conferred by clause 7 of section 195 of the criminal procedure code. that being so, it is open to us to consider whether the sanction which has been refused here should or should not be granted.7. whether, apart from the provisions of the code of criminal procedure an appeal lies.....
Judgment:

Lallubhai Shah, Acting C.J.

1. This is an appeal from the order of Mr. Justice Kanga refusing to grant sanction which was applied for by the defendant in Suit No. 2600 of 1920. The sanction to prosecute was asked for in respect of a letter dated 16th October 1920 (Exh. E), which was said to have been forged and also in respect of a statement made by respondent No. 1 as regards the settlement of the July shipment which was a matter in dispute between the parties. It is not necessary for the purpose of this appeal to state in detail the facts relating to the suit. The suit was decided on the 9th August 1920, when it was conceded by the plaintiffs that there was a settlement in respect of the July shipment.

2. An objection has been taken on behalf of the respondents that no appeal lies because the subordinate Court contemplated by Section 195, Criminal Procedure Code, is a Court other than a High Court and that therefore there could be no appeal under that section from the order of a Judge of the same Court. It seems to me however, that the preliminary objection must be disallowed. Sub-section (7) of Section 195 provides that for the purpose of this section every Court shall be deemed to be subordinate only to the Court to which appeals from the judgment of that Court ordinarily lie. In the present case there could be no doubt that under Clause 15 of the Letters Patent appeals would ordinarily lie from the judgments of a single Judge exercising Original Civil Jurisdiction to this Court, that is the Court of Appeal on the Original Side. It is true that generally speaking the subordinate Court contemplated by Section 195, Criminal Procedure Code, is a Court different from the Court to which the appeals would ordinarily lie. But, having regard to the words of the section, it seems to me clear that for the purpose of Section 195, the Court from whose order the present appeal is preferred is a Court from whose judgment an appeal would ordinarily lie to this Court: and therefore the present appeal asking us to grant the sanction and to revoke the order refusing to grant, the sanction is competent. It may be, though it has not been suggested, that Sub-section (7) really provides for the three classes of cases mentioned in Clauses (a), (b) and (c) of that sub-section. I do not think, however, that those specific provisions are restrictive of the general rule contained in that sub-section defining subordination for the purpose of Section 195. It is not necessary for the purpose of this case to decide, whether, apart from Section 195, an appeal would be competent under Clause 15 of the Letters Patent. As at present advised, I doubt whether an order refusing to grant a sanction to prosecute under Section 195, Criminal Procedure Code, is a judgment within the meaning of Clause 15. I base my decision on the preliminary objection upon the terms of Section 195, Criminal Procedure Code.

3. [His Lordship dealt at this point with the merits of the appeal, and continued:-] I am satisfied that the circumstances which have been fully stated by Mr. Velinkar are entirely insufficient to justify our disturbing the order made by Mr. Justice Kanga.

4. As regards costs, though, generally speaking, it may be desirable not to make any order as to costs in proceedings under Section 195, it seems to me that in this case the learned Judge was right in making the order as to costs. After a careful consideration of the circumstances of this case I have come to the conclusion that there is no valid reason why we should deprive the respondents of the costs which the present appellant has rendered it necessary for them to incur without any apparent justification. I would, therefore, dismiss the appeal with costs.

5. I desire to add that we have treated the proceedings as having been taken under Section 195 of the Code of Criminal Procedure: if the learned Judge considered the matter under Section 476, Criminal Procedure Code, it is clear that there would be no appeal. The rule-nisi obtained by the appellants in the trial Court does not in terms refer to Section 195. This aspect of the case was not referred to in the argument, and as both parties treated the case as falling under Section 195, Criminal Procedure Code, we have dealt with it on that footing.

Crump, J.

6. As to the merits of this case, I do not find it necessary to add anything to the judgment just delivered. But so far as it concerns the question about our jurisdiction to hear this appeal, I should like to say this much. Clause 6 of Section 195 of the Code of Criminal Procedure lays down a general rule as to appeals. In a case where a sanction has been granted by any authority, such sanction can be revoked or granted by any authority to which the authority giving or refusing it is subordinate. Clause 7 lays down a special rule as regards Courts, and the test of subordination for the purpose of that clause is whether an appeal ordinarily lies from the Court which granted the sanction to the Court which is asked to revoke it. Now if that is the test, it is, I think, clear that inasmuch as the Judge who heard this matter was sitting as a Court and inasmuch as the appeal ordinarily lies from his judgment by virtue of Clause 15 of the Letters Patent to a Bench of two Judges sitting as a Court, therefore we have here the jurisdiction conferred by Clause 7 of Section 195 of the Criminal Procedure Code. That being so, it is open to us to consider whether the sanction which has been refused here should or should not be granted.

7. Whether, apart from the provisions of the Code of Criminal Procedure an appeal lies under Clause 10 of the Letters Patent from the order refusing sanction, is a question on which I express no opinion.


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