1. The petitioner has been convicted of stabbing a certain person about sunset on 28th September 1912 in the course of a dispute about cattle. On that day, his father-in-law sent a telegram to the police at Tuticorin to say that the petitioner's house had been dacoited by some persons unnamed, in the absence of the petitioner though this is not expressly stated. On 20th October 1912, nearly a month later, the petitioner put in a complaint in which he' charged the man who has since been convicted of stabbing and others of having committed the dacoity while he was away at a distant village, and named nine witnesses. The Sub-Magistrate examined the complainant and doubting the truth of the complaint which was put in very late and appeared to be intended as a counter charge to the charge of stabbing which was then pending against the complainant referred it to the police for investigation and report on the 26th October 1912. The police apparently did nothing until the petitioner had been tried and convicted in the Stabbing charge on 30th December 1912. At the trial, as appears from the Judgment the petitioner's case was that he was absent on the day in question, that his house was dacoited in his absence that day by prosecution witness No. I and others and that it was in the course of this affray that prosecution witness No. I Was stabbed Somehow, or other with the exception of the last addition his story was the same as that told in his complaint dated 20th October 1912. He called ; several witnesses including four of those mentioned in the complaint and the court found his defence to be false and convicted him on the charge of stabbing,
2. Subsequently to his conviction, the police referred his complaint as false on the ground among others that it had been brought as a counter-charge to the charge on which he had been convicted and a new Sub-Magistrate on 14th January. 1913 passed an order setting but the substance of the police report and dismissing the complaint under Section 203 of the Code of Criminal Procedure. Sanction to prosecute the petitioner was granted subsequently on 16th April 1913 on the ground that the charge was a mere concoction intended to meet the charge on which the petitioner had been convicted and reference was made to the order of 14th January 1913 dismissing the complaint.
3. On this, it is argued that the Sub-Magistrate has granted sanction merely on the police report contrary to the Full Bench Ruling in Queen Empress v. Sheik Beari I.L.R. (1866) M. 232 but as pointed out by the District Magistrate and the Sessions Judge in their orders confirming the sanction, the Sub-Magistrate had much more before him because the police report refers to the conviction of the accused subsequent to the filing of the complaint as going to show that the complaint was merely concocted as a counter-charge. A reference to the judgment convicting the petitioner shows, as already pointed out, that before the police referred the complaint as false, the allegations it contains had been set up by the petitioner by way of defence in the stabbing case and investigated by the Court in that case and found to be false and they held that it was not necessary that the evidence in that case should be taken all over again for the purpose of deciding whether or not sanction should be granted against the petitioner.
4. In my opinion the decision of the lower Courts was right. Section 195 (b) of the Code of Criminal Procedure which relates to sanction for certain offences ' committed in or in relation to any proceeding in any court ' does not say by what consideration the Court is to be guided nor does it prescribe as indispensable that the court should hold a fresh enquiry and take evidence for the complainant before granting sanction, a proceeding which would be quite unnecessary in cases where the Court has acquired a knowledge of the facts in the course of the proceeding in or in relation to which the offence is alleged to have been committed. All that is decided by the Full Bench in Queen Empress v. Shiek Beari I.L.R. (1866) M. 232 is that the Court should not grant sanction to prosecute for preferring a false complaint merely on the ground that the complaint had been referred by the police as false and dismissed under Section 203 of the Code of Criminal Procedure. There are no doubt certain dicta in the Judgments of the learned Judges which have been repeated in some subsequent cases that the order should be made on judicial evidence or legal evidence, but these dicta do not mean, as has been contended before us, that such evidence must have been given on the application for sancation, of even on the hearing of the complaint itself. This is clear from the order of the Full Bench with reference to the first of the three cases referred to it. There they upheld a sanction given for the prosecution of a complainant who had preferred a charge of housebreaking and theft against a constable and others which was referred as false by the police who suggested that the complainant should be prosecuted. Before disposing of the application for sanction the Magistrate tried and acquitted the constable and others on a charge of assault preferred by the same complainants (her son and brother). It was held by the Full Bench that the sanction so granted merely on the strength of the Police report and the result of the investigation in the other case was not illegal. In the present case the evidence in the other case was taken by the court before the police referred the complaint now in question as false, and the result of those proceedings was one of the chief grounds on which they referred the case as false. No doubt the Magistrate who granted the. sanction was not the same as the Magistrate who tried the counter-case against the present complainant, but the Court was the same and the judgment of the Court in that case was on record and the result of that case was in my opinion a matter which might properly be taken into consideration in granting sanction in this case. I may add that I agree with the observations of my learned brother which I have had the advantage of reading and would dismiss the petition.
Sadasiva Aiyar, J.
5. Though this is called a Criminal Miscellaneous Petition, it is practically a third appeal from the order of the 2nd Class Magistrate of Srivaikuntam sanctioning the prosecution of the petitioner for an offence under Section 211 I.P.C. The Petitioner put in a complaint on the 20th October 1912 accusing 10 persons of having committed dacoity in his house on the 28th September 1912. The complaint was a very deliberate one as his father-in-law had on the 28th September itself sent a telegram to the Assistant Superintendent of Police charging about 50 persons with having committed dacoity, and this complaint of 20th October 1912 was practically a detailed expansion of that telegram. Then he was examined by the 2nd Class Magistrate on the 26th October 1912 as a complainant and he deposed that the facts stated in his complaint were quite true. The Magistrate felt doubt as to the truth of the accusation on two grounds (a) on account of the long delay in preferring the complaint and (b) as the complaint was put in as a counter ease to the Calender Case No. 483 of 1912 against the petitioner. In that Calendar Case No. 483 of 1912 his defence was based upon almost the same allegations as formed the basis of his complaint. That defence was found false in that Calender Case No. 483 of 1912 after an elaborate enquiry and after the examination of the witnesses whom he produced as defence witnesses in that case. His complaint of the 20th October 1912 was forwarded by the Magistrate to the Police for investigation and the Police reported the case to be false. The Magistrate's similar view that the complaint was probably false, which had been arrived at by him on looking into the complaint and examining the complainant) was thus confirmed by the police report and he dismissed the complaint on the 14th January 1913. On the 10th March 1913, notice was sent to the petitioner to show cause why he should not be prosecuted for having brought a false complaint of dacoity. He appeared on the 28th March 1913 to show cause and he was heard. The Magistrate considered that the petitioner's allegation that without a proper enquiry he (the Magistrate) had dismissed his complaint was not accurate and that it was only after proper enquiry he dismissed the complaint as false and he therefore granted the sanction on the 16th April 1913. As I said before, this Criminal Miscellaneous Petition before us is, a sort of third Appeal from the 2nd Class Magistrate's order, a petition to the District Magistrate to revoke the sanction and a petition to the Sessions Judge to revoke the District Magistrate's order refusing to revoke the sanction having been unsuccessful.
6. While I admit that under the law, as now settled, the petitioner has a right to come up on a sort of third appeal to the High Court, I am strongly of opinion that such petitions by way of third Appeal, should, as a matter of practice be rejected unlesss the records show not merely a mere technical illegality or irregularity, but that a palpably innocent man is sought to be prosecuted out of private grudge by his enemies. Here the police have obtained the sanction to prosecute the petitioner. The facts stated in his complaint have been enquired into in the counter-case brought against the petitioner and have been found to be false: the petitioner's complaint was, after his examination as complainant, strongly suspected to be false : it was found by the police also to be false when it was referred to them for investigation, and the improbabilities in his case were set out by the Magistrate in his order dismissing the case as false. Even supposing that the three lower Courts did not strictly act according to the instructions given for the guidance of the lower courts in some decisions of the High Courts, I do not think that this is a fit case in which the High Court should interfere on a petition. When the Criminal Procedure Code says in Section 195, Clause 6, that a sanction given may be revoked by the appellate authority I do not think that it was intended that a higher authority was bound to revoke the sanction whenever some irregularity or even illegality is shown in the proceedings of the lower authority giving sanction.
7. Even if I am wrong in this above view, I am not satisfied that in this case any illegality has been committed in the granting of the sanction though the petitioner's learned Vakil Mr. A. Swaminatha Aiyar argued the case of his client with much persistency and ability and raised several nice points of law. One of his arguments was that because Section 476 of the Criminal Procedure Code refers to a preliminary inquiry before any steps are taken under it, there ought to be also a preliminary inquiry before sanction is granted under the analogous Section 195 of the Criminal Procedure Code. Even as regards Section 476 of the Criminal Procedure Code the words of the section are' after making any preliminary inquiry that may be necessary.' This shows that a preliminary inquiry is not essential in all cases even when the court takes action under Section 476.
8. In Abdul Ghafur v. Raza Hussain I.L.R. (1912) A. 267 it was held that no such preliminary inquiry was necessary. A fortiori of course, under Section 195 in which there is no reference at all to 'preliminary inquiry ' is such an enquiry unnecessary. In fact, it has been held in the matter of Govindu I.L.R. (1902) M. 592 that even want of notice to the accused does not invalidate the grant of sanction under Section 195 of the Code of Criminal Procedure.
9. The next contention was that under the Full Bench Ruling in Queen Empress v. Sheik Beari I.L.R. (1886) M. 232 the sanctioning of the prosecution of a man for an offence is a judicial act and that act must be performed after forming a judgment upon legal evidence. In that case it was held as I understand the points on which all the learned Judges were agreed, that the Magistrate should not Substitute the judgment of the police; for his own judgment and cannot accord sanction merely, Upon the police report. This case in Queen Empress v. Sheik Beari was considered by Spencer, J. in Audimulam v. Krishnien : (1912)22MLJ419 . I adopt his reasoning so far as this point is concerned. I think that it is impossible for us to discriminate and say how far the Magistrate's order was based upon the patent unreliability of the statement made by the complainant' when he was examined by the Magistrate (which statement is legal and material evidence) and how far it was based upon the police report or upon the fact that the facts mentioned in the complaint were found to be false in the counter-case. In the present case the records show, I think, that the Magistrate did not substitute the judgment of the police for his own judgment, and that one of the material facts which induced him to grant the sanction was that, in his own judgment after he had examined the Petitioner as complainant, be thought that the case was false. Even if there was any irregularity in his referring to the police report and to the fact that the petitioner's case was found false in the counter-case, that irregularity has not, in my opinion, occasioned any failure of justice and under Section 537 C.P.C., even if we were deciding an appeal we cannot interfere with his order on that ground. I might however, be permitted to say that in my opinion Section 195 of the Criminal Procedure Code does not state that the authority giving sanction should act only upon legal evidence. So far as the Madras cases go while they say that if the authority giving sanction is a judicial authority it should not grant sanction unless there is some legal evidence in support of the falsity of the complaint those cases ought not to be treated as enunciating the much wider proposition that if other probalities based on evidence which would not be admissible at the trial of the petitioner are also referred to by the authority giving sanction the grant of sanction becomes wholly illegal and ought to be revoked. I am not sure that for the purposes of coming to a conclusion whether the complaint was prima facie false the finding on the connected case will not be evidence under Clause (2) Section 11 of the Evidence Act though it may not be evidence in the case instituted on that sanction; I do not think that we should be astute to impose more restrictions on the discretion of the sanctioning authority in the grant of sanctions than are contemplated by the legislature. The legislature itself in Section 195Cr.P.C, has given no indication whatever as to the materials on which the court can be justified in awarding sanction and has imposed no such restrictions as are contended for. On page 239 of the case in Queen Empress v. Sheik Beari I.L.R. (1886) M. 232 the learned Judges refer without disapproval to the sanctioning Magistrate in one of the cases having taken into consideration the fact that the complainant was unsuccessful in a connected case. I think that we ought not to interfere with the discretion of the Subordinate Courts in the matter of the grant of sanction unless there is some prima facie strong ground for holding that there is no reasonable probability of having a conviction on the sanction or that it is otherwise inexpedient to award the sanction on the facts of the particular case or that the party against whom sanction was granted was probably innocent. In the result, I would dismiss this petition.