1. The Public Prosecutor has conceded that the order of the District Magistrate, dated 28th August 1901, cannot be upheld as an order for sanction to prosecute such as is required by Section 195 (1) (b) of the Code of Criminal Procedure inasmuch as the District Magistrate is not the Court to which the Sub-Magistrate is subordinate within the meaning of Section 195 (7), Criminal Procedure Code. He has contended, however, that the order is valid as an order made under the powers conferred by Section 476. Assuming the order was intended to be made under Section 476, its validity depends on whether the alleged offence was brought to the notice of the District Magistrate in the course of a judicial proceeding. The Public Prosecutor has argued that the District Magistrate must be assumed to have called for the records under the powers conferred by Section 435, and that an order made on consideration of the records called for under that section is a judicial proceeding for the purposes of Section 476. It is not necessary for us to consider the general question whether an order made after the records have been called for is a judicial proceeding for the purpose of Section 476. It may be that an order made after the records have been called for any of the purposes specified in Section 435 would be a judicial proceeding for the purposes of Section 476. In the present case, however, it seems to us clear from the terms of the petition on which the order of 28th August 1901 was made and from the endorsement of the Sub-Magistrate submitting the records that the order of that date was not made after the records had been called for any of the purposes mentioned in Section 435, The order calling for the records seems to have been made by the District Magistrate in his executive capacity for the purpose of enabling him to ascertain whether the petitioner's prayer for an enquiry into the conduct of the Police should be granted. In our judgment the present case does not come within the terms of Section 435 and we think there was no judicial proceeding for the purposes of Section 476.
2. The Public Prosecutor has further contended that it was competent for the Deputy Magistrate to take cognizance of the offence under Section 190 and that the order of 28th August 1901, which purports to grant sanction, was unnecessary and may therefore be treated as a nullity. We feel no doubt that the offence alleged to have been committed is an offence in relation to a proceeding in a Court within the meaning of Section 195 (b) of the Code of Criminal Procedure. Sanction is therefore necessary.
3. The order of the District Magistrate, dated 28th August 1901, must be set aside.