Woodroffe and Mookerjee, JJ.
1. This is a Reference under Section 432 of the Criminal Procedure Code by the Third Presidency Magistrate. It is alleged that the petitioner obtained a fraudulent decree in the Small Cause Court in a suit which was tried by Mr. Dobbin, the Registrar of that Court. As that officer subsequently left this country on leave, an application was made to the Officiating Chief Judge of the Small Cause Court for sanction to prosecute the petitioner under Sections 209 and 210 of the Indian Penal Code, The learned Chief Judge inquired into the matter and took evidence, and arrived at the conclusion that a strong case had been made out for the prosecution, which was subsequently, on his sanction under Section 195 of the Criminal Procedure Code, instituted. The Magistrate in making the Reference states that on behalf of the accused certain points of law have been raised with reference to the validity of the sanction given by the Chief Judge, and that, if this Court is of opinion that the sanction was invalid, the prosecution fails, otherwise the accused should, in his opinion, be convicted of offences under the sections mentioned. We desire to say at once that we express no opinion as regards the facts of the case with which we have been invited to deal, but which are not properly before us upon a reference of this nature. We deal only with the particular points of law referred to us by the judgment. We therefore do not consider any other contention such as that which has been raised, namely, that the accused had no notice of the proceedings taken before the learned Chief Judge to obtain the sanction. The arguments which have been addressed to us, and which have been embodied in the judgment of the learned Presidency Magistrate, are twofold, inasmuch as the second and third questions referred relate to the same point. It is said, firstly, that the sanction under section 195 was not a good sanction, in that it was granted by the learned Chief Judge and not by Mr. Dobbin, the Judge 'before whom the case was tried. It has been contended that the words ' such Court' in clause (b) of section 195 of the Criminal Procedure Code mean the particular Judge of a Court (composed of several Judges) who tried the ease in, or in relation to, which the offence was committed. In other words, the section is said to mean that no Court shall take cognizance of any offence when such offence is committed in, or in relation to, any proceeding in any Court except with the preivous sanction, or on the complaint, of the particular Judge who tried the case. Mr. Dobbin, it is admitted, could have given sanction; but it is argued, as he was absent, no other Judge of the Small Cause Court could do so. It is contended that there are as many Courts in the Small Cause Court as there are Judges of it. It is further suggested that, id the circumstances, an application should have been made to the Original Side of this Court as the Court to which the Small Cause Court is subordinate. Neither of these contentions is, in our opinion, sound. As regards the latter, an application can only be made to the Superior Court after sanction has been given or refused by the Subordinate Court. And as regards the first argument, it is to be observed that the object of the sanction is to ensure that a prosecution shall be instituted only after due consideration on the part of the Court granting it. No doubt ordinarily, as a matter of convenience and expediency, an application for sanction should be made to the Judge who tried the case, if he be present in the Court. If, as in the present case, he is not, it is open to the Court, that is, any other Judge of the Court, to grant sanction. A contrary construction would, having regard to the frequent absences and transfers of Judges in the country, lead to grave inconvenience and inequality of justice. It has been forcibly argued that it could hardly have been the intention of the Legislature that the conviction and punishment of a person, who had committed an offence, should be made to depend upon the question whether the Judge before whom it was committed was or was not alive, or absent, or had or had not been transferred from the Court. We have been referred to the decision of In the matter of Krishna Gobinda Dutt(1872) 9 C.W.N. 859. That was a case under Section 476 of the Criminal Procedure Code, and the sanction in the present case was granted under Section 195. We arc, however, unable, with all respect, to agree with the principle of that decision; and, had it been one under the section with which we are now concerned, we should have considered it necessary to refer the matter to a Full Bench. This decision was distinguished and doubted in Ambica Roy v. Emperor (1905) 2 C.L.J. 65n. The view which we and the Court in that case have expressed is. supported by a ruling which is to be found reported in High Court Proceedings, 12th November 1872(1872) 7 Mad. H.C. Ap. xii, in which it was held that it is the Court, and not the Judge before whom the offence is alleged to have been committed, that is to give sanction or make the complaint, and that the change of the incumbent, therefore, does not alter the constitution of the Court.
2. The second point which has been raised is, that the decree, which is for a sum of Rs. 18, and which is alleged by the prosecution to be a fraudulent decree, has not boon set aside by the parties against whom it was made. These persons live in the Punjab, and it is scarcely to be expected, and may have been counted upon by the accused (for it is stated that the present is one of numerous other similar cases in which fraudulent decrees have been obtained in Calcutta against persons living up-country) that they would incur the trouble and expense of coming from the Punjab to Calcutta to set aside a decree for Rs. 18. In the first place, an offence is committed under Section 210 of the Indian Penal Code when the decree is fraudulently obtained. Secondly, even had the decree been set aside by a Civil Court on the ground of fraud, that fact would not have been evidence in the Criminal Court of the existence of fraud, which it would have been necessary to independently prove in the criminal proceedings, We are therefore of opinion that, though the fact that the decree has not been set aside might be admissible as evidence to prove that there was no fraud, it is not a bar to the prosecution. We are further of opinion that the sanction which was granted by the learned Chief Judge of the Small Cause Court was a good sanction, though he was not the Judge who tried the case.
3. The second question which has been referred to us is, whether the sanction is had in law, it not having been granted on the evidence recorded by the learned Chief Judge of the Small Cause Court in a judicial proceeding. It is, not quite clear what is meant by the question as so stated. But from the argument of learned Counsel we gather that it is really ancillary to that which we have already dealt with. It raises in another form the contention that sanction could only be granted by Mr. Dobbin, the Judge who heard the evidence, that is, who tried the case, and not by the Officiating Chief Judge. We have already said that in our opinion this is not so. We answer the reference by stating that none of the matters referred to us, in our opinion, constitute any valid objection to the prosecution.
4. The case will go back to the Third Presidency Magistrate for disposal under Section 433 of the Criminal Procedure Code.