1. This is an application in revision from an order passed by the learned District Judge of Meerut, under Section 476 of the Code of Criminal Procedure, directing the prosecution of the three applicants or the charge of perjury. It appears that one Rohtagi Mal died on the 15th April 1922 possessed of considerable moveable and immoveable property. On the 19th April 1922 an application under Act XIX of 1841 was made by the opposite party to the Court of the District Judge for the making of an inventory of the effects of the deceased and the appointment of a Curator. It was stated in the application that the three applicants before this Court were servants of the deceased and were unlawfully in possession of the effects of the deceased and there was danger of the waste and the disappearance of the said effect. On the application under Act XIX of 1841 the learned District Judge passed an order appointing the Nazir of his Court to go to the house of the dceased and make an inventory. During the making of the inventory a box containing documents purporting to belong to the deceased was produced before the Nazir and a paper purporting to be the last Will and testament of Rohtagi Mal was discovered dated the 5th March 1921. During the pendency of the application under Act XIX of 1841 Peary Lal, Bashi Lal and Kanhaiya Lal who are the applicants before this Court went to the Revenue Court and asked for mutation of names in their favour. The opposite party resisted the application for mutation but the Revenue Court allowed the mutation of names to be effected in favour of Peary Lal and two others. The application under Act XIX of 1841 was made before Mr. Collister. Before the disposal of that application Mr. Collister was transferred and Mr. Neave succeeded him. Before passing final orders on the application Mr. Neave made an order on the 21st December 1922 directing the prosecution of Peary Lai, Bashi Lal and Kanhaiya Lal on the charge of forgery under Section 471, Indian Penal Code. The next day i.e., 22nd November 1922, the application of the opposite party for making an inventory of the goods of the deceased and the appointment of a Curator was rejected by the learned District Judge. The applicants before this Court whose prosecution has been directed challenge the order against them on the ground that it is illegal or at least tainted with material irregularity. For the opposite party the contention is that there is no illegality or material irregularity in the order of the learned District Judge dated the 21stDecember 1922, and, therefore, the present application is not maintainable.
2. I have examined the record and carefully studied the order of the learned District Judge which forms the subject of the present application for revision. I am of opinion that the order is illegal for the reasons to be mentioned presently. The application is, therefore, entertainable under Section 115 of the Code of Civil Procedure. The order of 21st November 1922 is based upon the evidence of Sagar Mal and on the report of one Mr. Brewster who is said to be an expert attached to the Government of India for the examination of handwritings. The learned District Judge says in his order that Sagar Mal has deposed that he never attested the Will of Rohtagi Mal. On a reference to the statement of Sagar Mal I find that in his cross-examination he distinctly stated that he had attested the Will of Rohtagi Mal. The only basis of the order under revision is, therefore, the report of Mr. Brewster. It is contended on behalf of the applicants that the report of Mr. Brewster who never came into the witness-box and whose report is not supported even by an affidavit is inadmissible in evidence and should not have formed the basis of the order of the learned District Judge directing the prosecution of the applicants on such a serious charge as that of forgery. On the other hand, the contention of the learned Counsel for the opposite party is that, in a proceeding under Section 476 of the Code of Criminal Procedure, a Judge or a Magistrate is not bound to base his sanction for the prosecution for an offence under the Indian Penal Code brought to his notice on evidence admissible according to law. The jurisdiction of the Judge or the Magistrate is unfettered and he can take into consideration the evidence which, strictly speaking, would not be admissible under the law. A reference in connection with this argument is made to paragraph 596 of the Commentary of the Code of Criminal Procedure, edited by a learned Counsel of this Court, namely, Mr. G.P. Boys. I have read the paragraph with great interest and I find that the opinion is advanced there that a Presiding Officer of a Court under Section 476 of the Code of Criminal Procedure is entitled to base his sanction on evidence which is not strictly admissible according to law. It may be that if sanction is granted on the basis of some evidence which is admissible under the law and other evidence which, strictly speaking, may not be admissible under the law the contention for the opposite party may perhaps be valid. But where a sanction is given on a piece of evidence that can in no circumstances be called legal evidence and especially when, as in the present case, there is positive legal evidence against it, I mean that of Sagar Mal, I am strongly of opinion that such a sanction should never have been granted and should not be upheld by this Court. The direction to prosecute a person on a charge of forgery is a very serious matter to the person concerned. It is true that if he is innocent be will get off but he has a right to say that before he is sent to take his trial on such a serious charge as that of forgery the Presiding Officer who grants the sanction should have something before him which according to law can be described as evidence. In the present case not only is the report of Mr. Brewster to the District Judge inadmissible but there is positive legal evidence that contradicts it. Moreover, I find that the learned Judge was not himself sure whether the Will produced before him was genuine or not. All that he says in his order is that the Will in question is probably a forgery and it appears likely that an offence has been committed under Section 471, Indian Penal Code, by the three applicants. If the contention for the opposite party is correct that the law of this country gives a very wide discretion and power to Presiding Officers to grant sanction under Section 476, Criminal Procedure Code, there is much more the reason that that power should be exercised with great caution and care and with due regard to the evidence upon which the sanction is based. I pronounce no opinion as to the character of the Will in question. It may be genuine or it may not be genuine but I am of opinion that the sanction granted against the three applicants for their prosecution under Section 471, Indian Penal Code, cannot be sustained for a moment. I, therefore, allow the application and cancel the order directing the prosecution of the three applicants on the charge of forgery under Section 471, Indian Penal Code. The bail-bond taken from the applicants will be discharged.