Norris and Beverley, JJ.
1. The rule was argued before us on the 14th December 1891, and we took time to consider our judgment.
2. In support of the rule it was argued that the sanction was illegal, because the Registrar ought not to have travelled outside the record of the Small Cause Court case, which disclosed no foundation for the charges made. In other words, it was argued that the Registrar ought not to have made any enquiry; and in support of the argument the following cases were relied upon:Hurro Nath Roy and others (Petitioners) (7 W.R., 482), In re Kasi Chunder Mozumdar I.L.R., 6 Cal., 440, and Zemindar of Sivagari v. The Queen I.L.R. 6 Mad. 29.
3. The facts of the case of Hurro Nath Roy and others are as follows:Sristeedhur Dass, alleging himself to be a mokuraridar, sued Hurro Nath Roy and others to have his mokurari right declared, and obtained a decree. On special appeal to this Court the case was remanded to the Lower Appellate Court in order to determine whether a document filed by the plaintiff was a forgery. The Lower Appellate Court, without hearing the appeal, instituted an inquiry as to the genuineness of the document and as to whether the defendant's written statement was untrue, and he required the personal attendance of the mukhtear who had verified the written statement. The mukhtear did not appear: thereupon the appeal was struck off the file, and the defendants were required to appear in person. The defendants filed a special appeal against the order striking the appeal off the file, and also moved this Court to have the order for their personal attendance quashed. L.S. Jackson, J., after reading Sections 16 and 19 of Act XXIII of 1861, says: 'Under these two sections Civil Courts have power to refer to the Magistrate, or to make commitments to the Sessions in cases coming under the XIth or the XVIIIth Chapters of the Indian Penal Code, but they are to make orders of that kind when a witness or other person 'shall appear to the Court' to have been guilty of any offence, or when there shall appear to the Court sufficient ground for an investigation.' It seems quite clearly, I think, the meaning of these sections that the Civil Court must come to some conclusion in respect of the guilt of the party concerned, or the truth or otherwise of the document or evidence.'
4. When the learned Judge says 'that the Civil Court must come to some conclusion in respect of the guilt of the party concerned, or the truth or otherwise of the document or evidence,' it is clear that he means to say that such conclusion must be arrived at from something that transpires during the hearing of the case; that the Civil Court cannot enter upon an altogether independent inquiry as to whether a prima facie case of an offence under the sections of the Indian Penal Code, enumerated in Sections 16 and 19 of Act XXIII of 1861, is made out, for he goes on to say: 'If on hearing the appeal in this case the Principal Sudder Amin had been of opinion that the plaintiff had produced a forged document, or that the defendants had knowingly tendered a false written statement, he might have proceeded under the 16th or 19th section as the case might be.'
5. The decision in that case turned upon the construction to be put upon Sections 16 and 19 of Act XXIII of 1861, the provisions of which have been reproduced in Section 643 of the present Code of Civil Procedure. Those provisions deal with a case in which a Civil Court of its own motion during the pendency of a case is of opinion that one of the offences therein referred to has been committed before it. It is no authority in respect of proceedings which are authorized to be taken by the Code of Criminal Procedure.
6. We shall examine these provisions later on.
7. In the case of In re Kasi Chunder Mozumdar I.L.R., 6 Cal., 440 the facts were as follows:In July 1868 Juggut Chunder Mozumdar mortgaged certain property to Kasi Chunder Mozumdar to secure a certain sum of money with interest. In October 1878 the mortgagee presented under Regulation XVII of 1806 a verified petition to the Court of Rajshahi for the foreclosure of the mortgage. Subsequently to the date of the petition, the Rajshahi district was divided, and the land, the subject of the mortgage, was included in the newly-formed district of Pabna. In December 1879 the mortgagor presented a counter-petition to the Rajshahi Court, alleging that the mortgage money had been paid in full, and in support thereof filed a registered receipt which, on the face of it, purported to show that the repayment had been made in 1869, and prayed chat the property might be declared free from the mortgage charge. The mortgagee denied the truth of these statements. In February 1880 the mortgagee presented a second petition to the Rajshahi Court, stating that matters had been amicably settled, and praying that the first petition might be taken off the file. A decree by consent was accordingly drawn up and filed. In July 1880 the mortgagor applied to the District Judge of Pabna for sanction to prosecute the mortgagee under Section 193, Indian Penal Code, for the statements contained in the petition of October 1878, and the Judge gave the sanction. The Court (Garth, C.J., and Maclean, J.) set aside the sanction upon the ground that the application for it, should have been made to the District Judge of Rajshahi and not to the District Judge of Pabna.
8. In the course of his judgment Garth, C.J., made the following observations: 'It seems to me that the reason of the rule laid down in Section 468 consists in this, that suitors in a Court of justice ought to be allowed the fullest liberty of speech and action in support of their respective contentions, and so long as they use that liberty in good faith and honestly, they ought not to be subjected to malicious prosecutions.
The Court which has the best means of forming an opinion upon the bona fides of the parties and the truthfulness of the witnesses is the Judge who hears the evidence, and therefore, upon that Court, or upon some superior Court which has the power of looking into the proceedings, the law imposes the duty of sanctioning or refusing to sanction criminal proceedings against the parties or their witnesses.
But if a case is settled without any evidence being gone into, it seems to me that the Court in which the suit was brought has no opportunity of judging of the bona fides of the claim or defence; and if it has any power at all under such circumstances, which I very much doubt, to give its sanction to criminal proceedings against either party, I think it would be guilty of a great impropriety and indiscretion in so doing. In this particular case no evidence was gone into. The proceedings taken by the mortgagee in 1878 were instituted under Regulation XVII of 1806, which does not make it necessary that his petition should even be verified in the ordinary way. The suit was subsequently compromised by consent, each party paying his own costs; and it seems to me that as no evidence was given on either side, it was quite impossible for them to form anything like a correct judgment as to whether the mortgage money had or had not been paid when the proceedings were instituted in 1878.
9. These observations are entirely obiter; they were in no way necessary for the decision of the case; they were apparently not concurred in by Maclean, J., who based his judgment simply 'on the ground that the Court of the Judge of Pabna and Bogra was not the Court before which the alleged offence was committed.'
10. We are unable to agree with the observations of Garth, C.J. It appears to us that the provisions of Section 471 of Act X of 1872, the Code of Criminal Procedure then in force, escaped the attention of the learned Judge, as it does not appear to have been referred to either in the argument or in the judgment.
11. That section runs as follows:When any Court, Civil or Criminal, is of opinion that there is sufficient ground for inquiring into any charge mentioned in Sections 467, 468, and 469, such Court, after making such preliminary inquiry as may be necessary, may either commit the case itself or may send the case for enquiry to any Magistrate having power to try or commit for trial the accused person for the offence charged.'
12. That section seems to us clearly to contemplate the making of a preliminary inquiry when the materials already before the Court are in themselves insufficient to establish a prima facie case, or when the Court is sought to be put in motion after the termination of the original proceedings. It seems difficult to imagine why the Legislature should have distinctly recognized the possibility of a preliminary inquiry being necessary if it intended a Court to act only upon materials presented to it during the hearing of the case.
13. The decision in Zemindar of Sivagiri v. The Queen I.L.R. 6 Mad. 29 followed the obiter dicta of Garth, C.J. in Kasi Chunder Mozumdar's case, and we are unable to agree with it.
14. Since these cases were decided the provisions of the Code of Criminal Procedure upon the point under consideration have been altered and enlarged. Section 468 of Act X of 1872 provided that 'a complaint of an offence against public justice described in (certain sections) of the Indian Penal Code, when such offence is committed before or against a Civil or Criminal Court, shall not be entertained in the Criminal Courts, except with the sanction of the Court before or against which the offence was committed, or of some other Court to which such Court is subordinate.' Section 195 of Act X of 1882 provides that 'no Court shall take cognizance of any offence punishable under' the same section 'when such offence is committed in or in relation to any proceeding in any Court, except with the previous sanction, or on the complaint of such Court, or of some other Court to which such Court is subordinate.'
15. Then Section 476 of Act X of 1882 provides that 'when any Civil, Criminal or Revenue Court is of opinion that there is ground for enquiring into any offence referred to in Section 195, and committed before it, or brought under its notice in the course of a judicial proceeding, such Court, after making any preliminary inquiry that may be necessary, may send the case for inquiry or trial to the nearest Magistrate of the first class, and may send the accused in custody or take sufficient security for his appearance before such Magistrate, and may bind over any person to appear and give evidence on such enquiry or trial.' The powers conferred by this section are much more extensive than those conferred by Section 471 of Act X of 1872.
16. Now, upon the facts as above stated, we think that it is clear that a Civil Court, viz., the Registrar of the Sealdah Small Cause Court, had ground for enquiring into an offence referred to in Section 195, Code of Criminal Procedure, and committed before it, viz., an offence by Shashi Kumar Dey of Paikparah under Section 205 of Indian Penal Code of falsely personating Shashi Kumar Dey of Khilparah, and in such assumed character confessing judgment; and we are further of opinion that it was competent to such Court to make a preliminary inquiry and thus satisfy itself whether a prima facie case had been made out for granting a sanction.
17. It is clear that the alleged personation and confession of judgment took place in the Small Cause Court, and under Section 195 of the Code of Criminal Procedure no Court could take cognizance of that offence except with the previous sanction or on the complaint of that Court. It is equally clear that upon the record of the suit as it stands no sanction could properly have been given, inasmuch as it does not disclose either the personation or the confession of judgment. Unless, therefore, the Court was at liberty to make a preliminary inquiry and travel outside the record, the charge against the petitioner could never have been tried.
18. Whether sanction was necessary for the proceedings against the petitioner for an offences under Section 195, Indian Penal Code, and for abetment of offences under Sections 196, 209, and 471, we express no opinion. Supposing that sanction was necessary, we think it was rightly given. Neither do we express any opinion as to the legality or otherwise of the sanction accorded for the prosecution of Chunder Kishore Dutt, as his case is not before us.
19. We are thus of opinion that the rule should be discharged.