1. This is an appeal from dismissal by Kunhi Raman J.of an application made to him by the appellant seeking that the Courtshould direct the filing of a complaint against the respondent or, in the alternative, sanction the appellant prosecuting the respondent.
2. The respondent was the receiver appointed by the Court of some villages in the moffussil which were the subject-matter of proceedings to which the appellant was a party. The order appointing him receiver was made on 8-8-1941, whereupon he took possession of two villages, and was responsible for the receipts and expenditure in respect of them. By order of Court made on 24-4-1945, the receiver was directed to deliver possession of the villages to the appellant, and, in substance, the receiver-respondent complied with that order, and he was discharged subject to filing and passing his accounts.
3. Thereafter, the appellant, upon examination of accounts, was dissatisfied with regard to them, and she issued applications against the respondent for the purpose of being allowed to surcharge and falsify the accounts and for delivery of account books which the receiver had maintained during his receivership. At the same time, the application, out of which this appeal arises, was also filed. That application was made by reason of information received by the appellant that the respondent, during his receivership had felled a number of trees in the two villages, the value of them being stated to be a sum exceeding Rs. 5,000; he had used the timber for his own purpose, and had not accounted to the estate in respect of their value. Supporting the application, there are affidavits from village officers, such as the manigar, karnam, village munsif and so on containing statements regarding the respondent's conduct. The application was directed to be dealt with by way of oral evidence, since the receiver denied all the allegations charged against him in the several affidavits filed in support of the petition.
4. The learned Judge, with regard to the application for leave to surcharge and falsify and for production of books of account, relegated the appellant to a suit. In regard to the third application, the one with respect to which this appeal is concerned, the learned Judge by his order dismissed the application, after making reference to the appellant having been relegated to a regular suit in respect of her complaints against the receiver and that that suit had been already instituted. In dismissing this application on 28-2- 1947, the learned Judge observed that the appellant was at liberty to appby again for the same relief, if so advised, after evidence in the suit had been recorded.
5. Mr. Shrinivasa Raghavan, at the outset of his argument, stated that the application before Kunhi Raman J. was made, and this appeal has been preferred, in order that hereafter, in the event of a prosecution, the appellant would not be faced with difficulties by a dismissal on the ground that leave was necessary, when leave had not been obtained. He added further that if there was a finding that leave to prosecute the receiver is unnecessary, his client would be quite satisfied, as indeed she would have been had that been so found when the application itself was before the learned Judge.
6. A number of authorities have been cited regarding the question of leave being obtained to prosecute a receiver appointed by the Court. Several of them are decisions of the Calcutta High Court. They are, Anant Nath Dey v. Mohendranath (1912) 15 I.C. 489, Nagendra Nath T. Jogendranath (1912) 15 I. C. 491, Santok Chand v. Emperor : AIR1919Cal64 and Jnanedra Nath Pramanik v. Nilmony De A.I.R. 1989 Cal. 701. The substance of those decisions amounts to this: For infringement of the ordinary criminal laws of this country, leave is not necessary for prosecuting a receiver. When it is alleged that a receiver has committed an offence by virtue of carrying out and observing orders of Court, for instance, taking possession of some property, then the Court should be informed of the intention to prosecute, as a matter of courtesy and respect to the Court, although, it has been observed that, leave in such circumstances is required. Again, if an offence is alleged in respect of property in the possession of a receiver and it is an offence for which the person in pos session is liable, as for instance, some infringement of building lands or nature of the structure of immovable property, the same view is expressed in regard to the prosecution of the receiver. Khimchand v. Devkaran Mulji : AIR1928Bom493 the Bombay High Court held that sanction of that Court is not necessary to prosecute a receiver appointed by the High Court for an offence committed by him in exercise of his authority as receiver, the finding being that when a receiver commits an offence with respect to the property in his possession, leave is unnecessary before a prosecution is launched. Most of the authorities to which reference has been made were considered by Kuppuswami Aiyer J. of this Court in In re Veera Basaa Chikka Royal 31 : AIR1944Mad259 The learned Judge expresssd the view that in the case before him no sanction was necessary to prosecute the receiver. Respectfully, I agree with all the observations of that learned Judge.
7. Nowhere in the Code of Criminal Procedure is there any reference to leave of a Court being required before prosecuting a receiver. A receiver is not referred to in Section 195 of that Code which requires fulfilment of its provisions in respect of prosecution of certain individuals. In the absence of any authority, I would have ventured to come to the conclusion, which I am expressing here, that when a receiver commits an offence in relation to property in his possession, then he can be prosecuted without leave being obtained from the Court by which he is appointed.
8. In light of this conclusion, it follows that this appeal must be dismissed. But since the appellant was anxious only to be safeguarded with regard to the prosecution of the respondent, and had the application before the learned Judge been fully considered and a finding expressed that leave was unnecessary, she would not have been required to come here. In all the circumstances, I feel that the proper order is to direct that there be no costs payable by one party to the other.
9. I agree.