Innes, Officiating C.J. and Kernan, J.
1. The question here is whether the Judge could legally accord sanction for the prosecution of the plaintiff in the suit on the various charges referred to.
2. It appears to us that Section 468, Criminal Procedure Code, contemplates there being sufficient material before the Judge in the suit or criminal trial on which to found the charge.
3. The suit had been disposed of without any of the evidence on record giving rise per se to the slightest suspicion of an offence of the nature of any of those charged having been committed before the Court. It was not competent to the Judge, on an application for sanction, to go beyond the record to determine whether sanction ought to be given when the record itself disclosed no foundation whatever for the charges.
4. We have not overlooked the fact that authenticated copies of certain documents were filed, though not put in evidence, and that at the trial the plaintiff asked the Court to call upon the Collector at once to produce the originals which are now alleged to be forged. But we consider that there was nothing before the Court to warrant an application for sanction of the prosecution of the plaintiff for an offence committed before the Court, for the Court had no right to assume either that the documents, copies of which were filed, were forged, or that the plaintiff knew that they were so; and without some evidence upon these points before the Court in the suit (and such evidence was entirely absent), application for sanction to prosecute could not properly be accorded.
5. In this view we find we are supported by the view of the Chief Justice Sir Richaed Garth in the case of Kasi Chunder Mozumdar I.L.R. 6 Cal. 440. We consider that the discretion of the Judge was not legally exercised in granting sanction, and that the order granting sanction should be discharged.