1. This is a Letters Patent Appeal against an order of Napier, J. passed under Section 195 of the Code of Criminal Procedure, sanctioning the prosecution of the appellant for making false statements in an affidavit filed by him in connection with C.M.P. No. 1403 of 1915 on this Court's file.
2. Such difficulty as its disposal presents is owing mainly to the divergent views which have been held regarding the principles which should be observed by a court in granting or refusing sanction under this section.
3. The section itself undoubtedly neither lays down nor even suggests any principles for the court's guidance. As Jenkins, C.J., put it in In re An Attorney. I.L.R. (1913) C. 446 . 'The section is expressed in the widest terms, and vests in the court an absolute and unfettered discretion.' On the other hand, as the learned Judge proceeds to say at page 458, 'There are, however, certain Rules of prudence to which any court exercising its discretion would have regard, and pre-eminent among them, possibly a compendious statement of all, would be the Rule that the court will be astute to see that there shall be no abuse of the administration of Criminal Justice. No one, therefore, would be permitted to use the general law merely to satisfy his own private ends or personal spite; that would be to misuse it.' With all this I entirely and respectfully agree.
4. In the present case, we must be loth to interfere with an order of a learned Judge of this Court which is primarily of a discretionary nature. On the other hand the law casts on us the duty of deciding in appeal whether the Order is correct and as the learned judge has, I think, purposely refrained from discussing the merits of the case or recording any reasons, we are necessarily forced to consider whether the Order is one which we should ourselves have passed in the circumstances. Our peculiar difficulty is that we are not even in a position to say that the learned Judge has himself considered points which may appear to us essential to a determination of the case. We must therefore apply for ourselves the Rules of prudence referred to by Jenkins, C. J., quoted above.
5. They have been variously stated at great length by different judges with the facts of different cases in their minds. But speaking for myself and with all deference I would put it thus: To ensure that there shall be no abuse of Criminal Justice, a court before granting sanction should consider whether the case is one in which a prosecution could be instituted with a fair chance of success. See Pampapathi Sastri v. Subba Sastri I.L.R. (1899) M. 210. This is necessary to avoid the risk of frivolous or vexatious prosecutions designed not to vindicate justice, but to harass and annoy the person against whom they are directed. Without some such safeguard, the Criminal Courts in this country would be flooded with useless prosecutions. I take it that Section 195 of the Code of Criminal Procedure was enacted not because a perjurer, for example, was entitled to more protection or consideration than any other offender; but because in the case of offences of the class specified there exists a responsible officer who is in a position to form an opinion before the prosecution is instituted whether it is one, into which, from the public point of view, a Criminal Court may profitably enquire. The consideration of this question need not involve (to quote Stephen, J. in the above mentioned case In re An Attorney I.L.R. (1913) at p. 460 that 'the court to whom the application for sanction is made should perform any of the acts that will fall within the scope of the Magistrate's duty, if sanction is granted.' The court whose sanction is applied for need not confine its attention to evidence already legally on record. It may fairly and reasonably take other circumstances into consideration, and in particular the probability of other evidence being adduced at the trial. In effect by awarding sanction, it does not say to the Court which tries the case 'This is a case in which I think you will have to convict,' but ' This is a case which I think it is worth your while to enquire into.'
6. Apart from the prospects of success, I think a Court may properly refuse sanction where it considers that a prosecution is not desirable in the public interests. This is a question which will only present difficulty in infrequent cases. As a rule, if the Court is of opinion that a man has committed the offence in respect of which sanction is applied for and can be prosecuted with a fair chance of success, it will be desirable that justice should be vindicated. But exceptional cases will occur, in which a prosecution may possess every chance of success and yet be undesirable, e.g., where the moral turpitude is very slight, the offender may have already suffered sufficiently or other considerations may intervene. In such cases, a court might prudently and properly refuse sanction.
7. I am far from putting the above remarks forward as exhaustive but they represent principles which have been generally followed by the Courts of this Presidency and from which I do not think we ought to depart and from which we cannot depart, if we are to be 'astute to see that there is no abuse of the administration of Criminal Justice.' I do not think the judgment of the Calcutta case enunciates anything really contrary to them, though the learned judges have felt it necessary to protest against the tendency to unduly fetter the discretion of the sanctioning court by quoting judicial pronouncements. It may be that in the case before them they accepted the fact that the application was made by the Public Prosecutor after due deliberation and scrutiny of the papers placed in his hands by a Bench of the Court, as sufficient guarantee that it was a fit and proper case for sanction. I am far from saying that they would not have been justified in doing so, But similar cases are rare and where as in the case before us, sanction is applied for by a private party it will be for the court to test its desirability by the Rules of prudence referred to by the Chief Justice.
8. Viewed from this standpoint, I do not think the present case is a suitable one for sanctioning prosecution. The circumstances have been placed before us fairly fully and are set forth in the judgment of my learned brother I agree with him that there is no chance of securing a conviction in the case of either of the specified statements. The sanction is applied for by the appellant's adversary in the Civil Appeal (A.S. No. 163 of 1915) now pending and the latter appears to me to be taking8advanta-e of the existence of certain inconclusive recitals in Ex. E and of Ex. H and H 1 to harass appellant by a vexatious prosecution. No satisfactory grounds have in fact been indicated to us for coming to the conclusion that the statements are false.
9. I would set aside the sanction.
Seshagiri Aiyar, J.
10. I entirely agree. This is an appeal against the Order of Mr. Justice Napier, granting sanction to prosecute the appellant for having made false affidavit in the High Court. The appellant Palaniappa Chetty is the respondent in a first appeal pending in this Court. He obtained a decree for Rs. 23,000 and odd in the Court of First Instance. After the first appeal was filed, an application for stay of execution was made. The allegation in the petition asking for stay of execution was that Palaniappa Chetty was not a man of means. In answer to this affidavit, Palaniappa Chetty filed a counter affidavit in which he stated that he owned '1000 acres of Nanja and Punja lands in Perumalipatti attached to the village.of Kudukkanpatti, Melure Taluq, Madura District, worth more than one lakh of rupees and that he also owned a house in Palani worth about Rs. 6000. Mr. Justice Napier considered these two statements to be false and sanctioned the prosecution.
11. I am constrained to differ from the learned Judge. It was argued by Mr. Sadagopachariar that on the face of the records filed in this case, there are prima facie grounds for enquiry, and that we would not be justified in interfering with the discretion of the learned Judge. Although sitting in appeal, we are bound td be guided very largely in matters of discretion, by what influenced the learned Judge, I cannot accede to the contention that our hands are practically tied in such cases.
12. I do not think it necessary to examine at any length the authorities regarding the quantum of proof that is necessary before sanction is accorded; but I should like to indicate as briefly as possible my views on the subject. The paramount principle is to see that the person to be charged before a Magistrate is not subjected to unnecessary expense and humiliation. The liberty of a subject should not be subjected to restrictions which are not absolutely called for. The second principle is that it is not what on the face of a document or of a statement appears to be untrue that should guide a court in granting sanction. If further materials are placed before it which would enable it to conclude that the prima facie impression is unfounded, it is the duty of the Court to examine the materials fully and to satisfy itself whether, in the interests of justice, the prosecution is desirable. The third principle upon which Mr. Sadagopa Chariar laid some stress and which should undoubtedly guide the courts in such matters is that the Order granting sanction should express no definite pronouncements on the matter to be enquired into. I do not understand by this reservation that the Court granting sanction is not to apply its mind fully to the materials placed before it. On the other hand, every circumstance telling in favour of the person against whom sanction is asked for, should be weighed before the court makes up its mind, although in the Order granting the sanction, cave should be taken to see that conclusions are not stated which may prejudice the accused. There have been a series of cases in this Presidency which have enunciated the above principles in some form or other Chakrapani Iyengar v. King Emperor : (1902)12MLJ408 a full Bench of this Court said, 'There is no probability of securing the appellant's conviction even if sanction is granted, and we, therefore set aside the sanction accorded by the Sessions Judge.' In In re Paree Kunhamed I.L.R. (1902) M. 116 Mr. Justice Bashyam Aiyangar discussed this question at some length and came to the conclusion that 'it is the duty of the authority giving sanction or upholding it to go into the merits of the application for sanction with reference to the evidence before it and that, unless there is sufficient prima facie evidence and a reasonable probability of conviction, the Court will not be exercising its discretion properly in granting or upholding the same.' I entirely adopt the language of the learned Judge at page 117, where he says 'The object of Section 195 is to protect parties resorting to courts and witnesses against vexatious or frivolous prosecutions for their resorting to courts and giving evidence therein and such protection is afforded by prescribing the necessity of a preliminary sanction by the Court before which the offence is alleged to have been committed before a prosecution is launched and by giving a right of appeal to the court to which the Court giving sanction is subordinate.' In Veeraraghavaswami Naidu v. Bagavantula Visvanadham (1911) 2 M.W.N. 172, Ayling and Spencer, J J. held that it is the duty of the Court to see if there are good grounds for thinking that a prosecution is necessary in the interest of justice. On the other hand Mr. Justice Napier in Krishnama v. Chitturi China Perraju (1914) 17 M.L.T. 15, has taken a view which is opposed to the current of authorities in this Presidency. He has dissented from the dictum of Mr. Justice Bashyam Iyengar in In re Peree Kunhamed I.L.R. (1902) M. 116 and has preferred to follow the ruling of the learned Judge of the Calcutta High Court in In re an Attorney I.L.R. (1913) C. 446. With all respect, I am unable to agree with the view enunciated by the learned Judge. With some of the observations of the learned Judge I am in entire accord. As the learned Judge points out, the appellate Court should see that by the granting of sanction there has been no abuse of the administration of criminal justice. But when he says that the discretion is absolute and unqualified, I beg leave to differ from him. It is a discretion given in the instrests of justice and in the interests of persons to whom protection is intended to be given under Section 195 of the Code of Criminal Procedure; and therefore unless the discretion is exercised to advance justice and to extend the protection, the Court will not be exercising its discretion properly. As regards the decision in In re an Attorney I.L.R. (1913) C. 446 I desire to speak with greatest respect. With a great deal of what is said in the case, I agree. In one place the learned Chief Justice says at page 456, 'We are not trying the guilt or innocence of his client; we are merely considering whether the statutory bar imposed by Section 195 of the Code of Criminal Procedure should be removed and the law allowed to take its ordinary course.' In my opinion, this view of Section 195 requires some modification. The learned Chief Justice seems to be of opinion that Section 195 imposes a bar to an otherwise uncontrolled prosecution. I would substitute the words 'protection given' for the words 'the statutory bar imposed'. Section 195 is intended to safeguard the rights of persons who go to a Court of law, Courts throw their shield of protection over persons who resort to them. That is the reason why, proceedings in a Court of law are regarded as privileged; if that privilege is abused or exceeded, a person may be prosecuted for anything said or done by him. Before withdrawing the protection the presiding officer should be satisfied that the privilege has been forfeited and that the man should be prosecuted to vindicate Justice. If the presiding functionary is satisfied that there has been such a conduct on the part of the person as renders the person liable to conviction and that on the materials a conviction is probable, then he should withdraw the protection and sanction the prosecution. Section 195, should be examined only from this standpoint. In this view unless there is a probability of conviction and unless the interests of justice demanded it, there should be no sanction. I do not propose to go into the case-law any further because the cases are numerous and are not easily reconcileable; but so far as Madras is concerned, except this discordant note sounded by Mr. Justice Napier there has been practical uniformity and consistency in enunciating the principles I have stated. I shall now proceed to examine the facts of the case.
13. As regards the first of the two statements for which sanction is given to prosecute, the facts are these : The lands claimed by Palaniappa Chetty originally belonged to one Bivarama AiyaRule Sivaraaaa Aiyar sold them by Exhibit F and G to the father of Palaniappa Chetty in 1903. Prior to the sale, Sivarama Aiyar had executed a lease to one Venkatakrishna Aiyangar and a Chetti Venkatakrishna Aiyangar mortgaged his lease right to one Ramaswami Chetti. After this Palaniappa Chetti sold the properties to Nagappa Chetty in the year 1911 by Exhibits H and H 1. In 1904 in O.S. No. 145 of 1914, Ramaswami Chetty, the mortgagee from Venkatakrishna Iyengar, sued to enforce his mortgage on the lease right of Venkatakrishna Aiyangar. To this suit, Palaniappa Chetty was a party, Venkatakrishna Aiyangar, the mortgagor, Nagappa Chetty the purchaser from Palaniappa Chetty were also parties. Palaniappa Chetty filed a written statement in that suit on the 3rd July 1915 in which he stated that although he sold the property to Nagappa in 1911, that was a nominal transaction, and that he was still the real owner. Nagappa did not contest this statement. He remained ex parte and it is common ground that the litigation was defended really by Palaniappa Chetty, Venkatakrishna Aiyangar, as I said before was a defendant in the suit and must have been aware of the written statement filed by Palaniappa Chetty on the 3rd July. It was after this written statement in the Court of the Subordinate Judge of Madura that an application was made to this Court for stay of execution in the first appeal referred to by me. The Order on the said petition was that the appellant should deposit the money into Court and that Palaniappa Chetty who was the respondent in the appeal should draw it only on giving security therefor. After the Order was passed, Venkatakrishna Aiyangar tiled an affidavit on the 5th October 1915 before the learned Judge Mr. Justice Napier in which he alleged that the statements of Palaniappa Chetty in his counter affidavit in the execution application that he was entitled to 1000 acres of land and was the owner of a house in Palani was false, and that sanction should be accorded to prosecute him. In answer to that affidavit. Palaniappa Chetty filed an affidavit before the learned Judge in which he drew attention to the fact that he had stated as early in July 1915 that the property belonged to him, and that he had no intention of swearing falsely to its ownership. Now the question is as to whether when a person has been consistently claiming property as his own, notwithstanding the passing of a sale deed in favour of another person, he can be said to have made a wilfully false affidavit in that behalf. Nagapa Chetty, the alleged nominal vendee, did not dispute this elaim. Venkatakrishna Aiyangar the person the most interested in the litigation with the knowledge that Palaniappa Chetty had asserted his claim to the lands, charged Palaniappa Chetty with having made false statements. This man who apparently wants to invoke the authority of the Court to vindicate justice has not been honest enough to state, that in the litigation in the Madura Sub-Court, Palaniappa Chetty had made the same statements which he had subsequently reiterated in the affidavit, filed in this Court. It is impossible under these circumstances to have taken Venkatakrishna Aiyangar seriously and to have acted upon his affidavit as against a consistent assertion of right made by Palaniappa Chetty first in the Madura Sub-Court and subsequently in this Court. Is it possible under these circumstances that the prosecution of Palaniappa Chetty on such a statement can be successfully maintained in the Criminal Court, and is it right with these facts staring us in the face to compel this man to submit himself to all the indignities of a criminal prosecution? In my opinion on the materials placed before us there are no sufficient grounds for holding that Palaniappa Chetty made a wilfully false statement in respect of the ownership of the 1000 acres. Mr. Sadagopachariar referred to the extent and value having been exaggerated. These are not matters which appealed to the learned judge in granting the sanction.
14. The second item of charge is even less substantial than the first one. Ex. E is the sale deed in respect of the Palani house. The consequence is absolutely to Palaniappa Chetty. The document states that he is to enjoy the house from generation to generation with the power of alienation by way of sale, gift & c. It was said that certain recitals in the deed point to the property being held in trust and not absolutely by Palaniappa Chetty. There is no justification for such an inference on the materials available to us. I am satisfied from the statements made that the property was absolutely at his disposal although he intended to dedicate that property for a charity at some time or other I am therefore of opinion that as there is no chance of a conviction being had in respect of these two statements made by Palaniappa Chetty in the affidavit filed in this Court, the sanction granted by the learned Judge should be revoked.