Skip to content


In Re: Hajee Mohamed Habibulla Badsha Sahib - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1919)36MLJ60
AppellantIn Re: Hajee Mohamed Habibulla Badsha Sahib
Cases ReferredPalaniappa Chettiar v. Ramaswami Chettiar
Excerpt:
.....strong dissent from the view that a sanction given by this or any other court is in any way tantamount to an intimation to the magistrate that it is his duty to find that there is a prima facie case against the accused and commit him for trial. i am satisfied that this prosecution is not that, and that is all i desire to say about it......other party in other proceedings. but, in any event, it is of no moment, because if he is not a party my sanction is not required. in case it is required i give it and if it is not it does not matter, but i should like to conclude by expressing once more my strong dissent from the view that a sanction given by this or any other court is in any way tantamount to an intimation to the magistrate that it is his duty to find that there is a prima facie case against the accused and commit him for trial. in my opinion his duty is simply what he should do in any other case, and sanction is only requisite to prevent a frivolous abuse of the powers of the criminal courts. i am satisfied that this prosecution is not that, and that is all i desire to say about it.4. i sanction the prosecution in.....
Judgment:

Coutts Trotter, J.

1. This is an application for sanctioning the prosecution of two persons for offences under Sections 193 and 465 of the Indian Penal Code. Agreeing, as I do, with the views expressed by Napier, J. in Krishnamma v. Chitturi Chinna Perraju (1914) 17 M.L.T. 15 and disagreeing with those of Seshagiri Aiyar, J. in Palaniappa Chettiar v. Ramaswami Chettiar (1916) 32 M.L.J. 54 : 20 M.L.T. 567 which observations, in my opinion, are dicta which were quite unnecessary to the case decided by the Bench on that occasion, I feel myself in very great difficulty as to what I should do in this case. I am satisfied that the true interest of the accused requires that the Judge who gives sanction should abstain from giving anything like an analysis of the materials submitted to him for the purpose, or expressing any opinion as to the probability or otherwise of a conviction. I think that all that a Judge in giving sanction is called upon to do is to feel that the matter is one which, on the face of it, requires investigation by a Magisterial Court and ultimately by a competent tribunal. To my mind, it would be fatal to the interest of the accused person that it should be thought that, because an order of sanction has gone, the committing Magistrate should feel that the sanctioning Court has made up its mind that there is made out against the accused a prima facie case in the sense that would demand committal. That is the duty in my opinion of the Magistrate before whom the case is brought up and not of the Judge before whom the sanction is applied for; and I think that it is well put by Ayling, J., in Palaniappa Chettiar v. Ramaswami Chettiar (1916) 20 M.L.T. 557 : 32 M.L.J. 54 where he says ' In effect by according sanction, it does not say to the Court which tries the case, ' This is a case which I think you will have to convict, 'but' This is a case which I think it is worth your while to enquire into.'

2. That is the only view I express in sanctioning this prosecution.

3. Various points were taken : The first one was that the affidavit and the promissory note filed along with it which is the foundation for these proceedings was not done in a proceeding in a Court, on the ground that it was filed not before me directly but before the Official Assignee. In my opinion, the heading of the affidavit alone is enough to show that this was filed in this Court in a proceeding in this Court, although, as a mere matter of machinery, certain claims may be adjudicated upon by the Official Assignee as a Subordinate Officer of this Court. In any view, that point is absolutely unarguable. Then it is said that the sanction under Section 195 1(c) Criminal Procedure Code is not for an offence committed by a party and therefore it does not fall within the scope of this section. In my opinion, a claimant who files a claim in an insolvency petition in this Court is a party to the proceedings. If his claim is disputed, he has to appear to support it and then a list is constituted between himself on the one hand and the Official Assignee as representing the estate of the debtor on the other. If his claim is rejected, and he is not satisfied with it, he appeals to the Court just like any other party in other proceedings. But, in any event, it is of no moment, because if he is not a party my sanction is not required. In case it is required I give it and if it is not it does not matter, but I should like to conclude by expressing once more my strong dissent from the view that a sanction given by this or any other Court is in any way tantamount to an intimation to the Magistrate that it is his duty to find that there is a prima facie case against the accused and commit him for trial. In my opinion his duty is simply what he should do in any other case, and sanction is only requisite to prevent a frivolous abuse of the powers of the Criminal Courts. I am satisfied that this prosecution is not that, and that is all I desire to say about it.

4. I sanction the prosecution in terms of the notice of motion.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //