1. The petitioner Nana Khanderao has been convicted under Section 179, Indian Penal Code, for refusing to answer questions put to him by the Commissioner appointed by the Sub-ordinate Judge of Koregaon. The learned Subordinate Judge under Section 195 of the Code of Criminal Procedure sanctioned his prosecution under a 179 of the Indian Penal Code and he has been convicted and applies in revision. The single ground taken in revision is that the sanction by the Subordinate Judge is incompetent and should have been by the Commissioner. The offence alleged being under Section 179, Indian Penal Code, the sanction' would naturally be under Section 195, Clause (a), of the Code of Criminal Procedure. The question on the present application is whether the Commissioner before whom the alleged offence took place was or was not subordinate to the Subordinate Judge.
2. It is conceded that the Commissioner is a public servant under Section 21, Clause (4), of the Indian Penal Code. In the present case, the Commissioner to examine accounts was appointed under Order XXVI, Rules 11 and 12. He was appointed by the Subordinate Judge: the Subordinate Judge could have terminated his appointment at any time; his specific duties were laid down with instructions: and under Order XXVI, Rule 12, Clause (2), the Subordinate Judge had power to direct further inquiry if he had reason to be dissatisfied with the proceedings and report of the Commissioner. It is difficult, in our opinion, to conceive of greater subordination than what is implied by all these acts. Appointment, exercise of power and termination of appointment were all throughout in law subject to the orders and supervision of the Subordinate Judge. Reliance was placed for the petitioner on the case of Narasimhayya v. Venkatasawmi. (1903) 18 M.L.J. 584 There in the judgment it was observed (p. 586): 'The subordination of one public servant to another may arise either from express enactment or from the fact that both public servants belong to the same department, one being superior in rank to the other.' There it was held that a Village Munsiff in Madras to whom a theft was reported was not subordinate to the Sub-Magistrate. The dictum has no application to the facts of the present case. As far as we can judge of the intention of the Legislature and in the light of public policy, the offence to refuse to take the oath and answer the questions put by the Commissioner appointed by the Court is an offence against the Court itself, and the Court perhaps can more appropriately consider the question of sanction rather than the Commissioner appointed by it. For the purposes of the present application, however, it is not necessary to consider this question more deeply.
3. We hold that the Commissioner was subordinate to the Sub-ordinate Judge who appointed him and the sanction is, therefore, proper. The application fails and is dismissed.