1. A man called Shidappa sued a man called Annaji and another for debt. Annaji pleaded part payment and the man called Vithal swore to it. Shidappa got a decree in which it was held there was no part payment. He also obtained sanction to prosecute the man Vithal for perjury, which was granted by the Subordinate Judge.
2. Shidappa then transferred his decree to one Tammaji who proceeded to prosecute Vithal for perjury before the First Class Magistrate. Vithal has objected to this prosecution on two grounds. The first ground is that there was no document of sanction beyond the order itself passed by the Subordinate Judge, and it was urged that a separate formal document was necessary as described in the case of Queen-Empress v. Rachappa I.L.R. (1888) 13 Bom 109. But it does not seem to me that it was ever intended in that case to lay down that a prosecution would be illegal in default of any such formal document and resting merely upon the actual order of the Subordinate Judge. There is no such express requirement in the law. All that is required is that there should be a sanction of the Subordinate Judge under Section 195 of the Criminal Procedure Code, But the matter in any case is in my opinion of no substantial importance as the irregularity, if any, would have been covered by Section 537 of the Criminal Procedure Code.
3. The second objection has been that the sanction was granted to Shidappa and was not granted to Tammaji and that therefore the prosecution should not proceed. There are, it is true, certain remarks as to the necessity of formal transfer by the grantee of such sanction in order to make it proper to proceed with the prosecution in the cases of Jogendra Nath Moolcerjee v. Sarat Chandra Banerjee I.L.R(1905) I Cal. 351 and Kali Kinkar Sett v. Nritya Gopal Roy I.L.R(1904) Cal. 469 but it seems to me that the remarks there were intended really to refer to the proper exercise of the discretion of the sanctioning authority.
4. If they were intended to lay down anything more than that, then it would be my duty to record my respectful dissent, for there is no specific provision requiring that the prosecutor should be specified in Section 195 of the Criminal Procedure Code.
5. It seems to me that in all these cases the substantial question is not whether a particular person ought to be allowed to prosecute as indicated in In re Thathayya I.L.R(1888) Mad. 47 and In re Mowjee Liladhar (1905) 8 Bom. L.R. 32 but whether the bar against the prosecution of the particular person charged with having broken the law ought to be removed. In this case no particular reason has been shown why the alleged law-breaker Vithal should not be prosecuted for having, as alleged, perjured himself in the Court of the Subordinate Judge. It seems to me, therefore, that this application ought to be rejected, no sufficient reason having been shown why the prosecution of Vithal should be prevented by this Court.
6. I concur.
7. We know that this man Vithal ought to be prosecuted bacause the Subordinate Judge made an order to that effect. A certified copy of this order was obtained by Tammaji who presented a complaint to the Magistrate. Thereupon no doubt the Magistrate was empowered to consider and could rightly consider whether he would accept the complaint at the hands of Tammaji. The Magistrate has considered this and he has accepted the complaint at the hands of Tammaji and I do not think in the circumstances there is any occasion for us to interfere.