Walter Salis Schwabe Kt., K.C., C.J.
1. The question raised by the preliminary point taken in this appeal is whether an appeal lies to the Division Bench of the Appellate Side hearing appeals from the Original Side of the High Court, Madras from an order of a single Judge sitting on the Original Side giving under Section 195 Cr.P. Code sanction for prosecution in respect of an alleged offence committed in relation to proceedings before him. It has been fully argued before us by the learned Advocate General that no such appeal lies on three grounds, first that under the Letter Patent, Clause 15, no appeal lies to the High Court from the decision of a Judge of that Court in the exercise of criminal jurisdiction and that this is a matter-in the exercise of criminal jurisdiction; secondly that under the same clause no appeal lies from anything at all except judgments and that the order sanctioning this prosecution is not a judgment. On both these points there would be some conflict of authorities; but not having heard the other side on this point we cannot give any decision upon that. But, I think it right to say that my present view is that the Advocate General is right on both points, that this is a matter in the exercise of criminal jurisdiction and that the order is not a judgment. The third point is that under Section 195 Cr.P.C., apart altogether from the Letters Patent, there is no right of appeal, the right of appeal being confined to what is given by that section. Under Section 195(ib), no prosecution can take place under certain sections of the Indian Penal Code, including the section in question in this case, without the previous sanction or on the complaint to the court in which the proceedings took place or of some other Court to which such court is subordinate. For the purposes of that subjection it is not necessary to consider whether the court which, gives the sanction is subordinate to this Bench or not because sanction can be given by such court itself. Such court having given the sanction it is immaterial whether this Bench could or could not give similar sanction.
2. When it comes to the question of appeal, the matter is dealt with 'by Sub-section 6 and 7. Sub-section 6 says. 'Any sanction given or refused under this section may be revoked by any authority to which the authority giving or refusing it is. subordinate'. The power to give sanction under the various clauses of this section and sub-section is given to various persons as well as to Courts and Sub-section 6, when it deals with the authority to which the authority giving or refusing the sanction is subordinate is dealing with persons other than Courts who have the power under the section to give sanction as well as with Courts. The position of Courts giving sanction is dealt with also in Sub-section 7 and that is in these words: 'For the purpose of this section every court shall be deemed subordinate only to the court to which appeals from the former court ordinarily lie.' Pausing there, 1 read that to mean that for the purpose of saying whether a Court can revoke an order made, we have to see whether that Court is the Court to which appeals ordinarily lie from the Court which made the order. Now, appeals ordinarily lie to a Division Bench of the Appellate Side of this Court from a Judge sitting alone on the Original Side, and therefore the power of this Court to revoke, if my interpretation is correct, is given by that Sub-section.
3. Some little difficulty is introduced by the addition of the words to that Sub-section - 'that is to say' (a) where appeals lie from more than one court (b) where appeals lie to a Civil as well as to a Revenue Court and (c) where no appeal lies, certain rules are provided prescribing to which court the first Court is deemed to be subordinate. In my view, the words, 'that is to say,' are not comprehensive at all. They are merely illustrating and to some extent limiting the words that go before, and the true way of reading that section is that the power to revoke is granted to the Court which ordinarily hears appeals from the court sanctioning but as there may be difficulty in applying that rule, where two Courts have ordinarily the function of hearing appeals or where no court has that function provision is made by the rest of the section for those cases. If it were a question whether the Judge sitting on the Original Side is subordinate to this Bench within the meaning of Sub-section 6 as, at present advised, I incline to the view that he is properly described as subordinate; but I particularly wish not to commit myself on that matter, for I think it unnecessary for the decision of this case. I think it is sufficient to base my judgment on the words of Sub-section 6 and 7 and to say that by reason of what I think is the proper interpretation of those sub-sections the preliminary point fails.
4. I agree.
Coutts Trotter, J.
5. I agree and only desire to add that I am not to be taken as expressing any opinion at all as to the validity of the points taken by the learned Advocate General under the Letters Patent. But I think it is clear that on a reasonable construction of Section 195(1) of the Cr.P.C. we have the power, I will not say, of hearing appeals but of revoking the sanction given by the learned Judge. In my opinion all that it is necessary to say is that a single Judge sitting on the Original Side and sanctioning or refusing sanction under this sub-section is subordinate to a Bench of this Court for the purpose and in the sense of Sub-section 6 as explained by Sub-section 7. I wish to guard myself from expressing any opinion as to whether such a Judge is subordinate to a Bench of this Court in any other sense and for the purpose of any other section or any other Act. The first part of Sub-section 7 is plain to my mind but some difficulty is created by the use on that Sub-section of the words 'that is to say' which looks as if it is introducing an exhaustive enumeration of all the possible cases that could arise under the first part of Sub-section 7, I am satisfied that these words are mere inartistic draftsmanship and mean no more than if the draftsman had said 'in particular' and that he used the words to introduce illustrations in the manner so common in Indian legislation. I o my mind the words of Sub-section 7 are absolutely clear: 'Every court shall be deemed to be Sub-ordinate only to the court to which appeals from the former court ordinarily lie.' It seems to me impossible to hold that a Division Bench of this Court can be held to be other than a court to which appeals from a single Judge as a Judge of first instance on the Original Side ordinarily lie.
6. I am therefore of opinion that we are empowered to entertain this application to revoke the sanction granted by the learned Judge.