1. This was a Rule issued by my learned brothers Mr. Justice Walmsley and Mr. Justice Suhrawardy calling upon the opposite party to show cause why the period of the sanction should not be extended.
2. The rule was granted on the 3rd April 1922, on an application supported by an affidavit which was affirmed on the 27th February, 1922.
3. It appears that the petitioner instituted a suit against one Chandra Mohun Saha and others for rent. It was tried by the Subordinate Judge of Comilla, who gave judgment in favour of the petitioner. Certain rent-receipts had been put in evidence by the defendants and the learned Judge held that the rent-receipts were forgeries. An application was made by the petitioner to the learned Judge for sanction to prosecute the defendants and some of their witnesses under Section 195 of the Code of Criminal Procedure, and on the 13th of June, 1921, sanction was given by the learned Subordinate Judge. An application to revoke the sanction was then made by the defendants to the District Judge. The learned District Judge; after making a small variation in the order of the learned Subordinate Judge, dismissed the application to revoke the sanction and his judgment was given on the 26th September, 1921.
4. The allegation of the petitioner is, that he fell ill in October, 1921, and was confined to bed until February, 1922. Section 195, Sub-section (6) of the Code of Criminal Procedure provides, that, 'any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate; and no such sanction shall remain in force for more than six months from the date on which it was given provided, that the High Court may, for good cause shown, extend the time.' If, therefore, the period of six months referred in Sub-section (6) of Section 195 of the Code of Criminal Procedure, began to run from the date on which the sanction was granted by the learned Subordinate Judge namely, the 13th June, 1921, that period would expire on the 13th December, 1921, and, in my judgment, it must be taken that the period did begin to run from the 13th June, 1921.
5. It was contended on behalf of the opposite parties that inasmuch as the period of six months had expired by reason of the provisions of Sub-section (6) of Section 195 of the Code of Criminal Procedure the sanction was no longer in force, and that the High Court had no jurisdiction at the time this rule was granted, namely, on the 3rd April, 1922, to extend the time, and reliance was placed on a decision of this Court in the case of Kali Kinkar Sett v. Dinobandhu Nandy (1905) 32 Cal. 379. In the judgment which was a judgment of the learned Chief Justice, Sir Francis William Maclean, Mr. Justice Hill and Mr. Justice Harrington, there are some remarks which are relevant to this question. But it is to be noted that those remarks were not necessary for the decision. The decision was based upon another ground altogether. The learned Chief Justice at the end of his judgment is reported to have said as follows:
The other questions do not, in this view become material : but as they have been argued we may say that we do not agree with the view that the time can be extended when it has expired. If the time has expired, there is nothing to extend. The cases in the Madras High Court, upon which the Court of first instance relied, were heard ex parte, apparently without the question being argued and can scarcely be treated as authorities. Any way we respectfully differ.
6. As I have already said, these remarks were not necessary for the decision, and being obiter dicta, they do not amount to a decision binding upon this Court. But being opinions of the learned Chief Justice and two of the learned Judges of this Court they are entitled to the respect and consideration which opinions of such Judges must inspire. With great respect, however, to the learned Judges who were responsible for those remarks, I find myself unable to adopt the reasoning which led them to the conclusion at which they arrived. Beading the words of the section and giving to them their ordinary meaning, it seems to me that the words are wide enough to give the High Court jurisdiction to extend the time, though the period of six months has expired and though the sanction is no longer in force. To hold otherwise, in my judgment, would have the effect of limiting unduly the meaning of Section 195, Sub-section (6) of the Code of Criminal Procedure. It seems to me that the occasions on which it would be necessary for a party who had obtained sanction to prosecute to apply for an extension of time before the period of six months expired would be few and far between and if such an application were made before the expiration of the period of six months, apart from any special circumstances, the reply which would be made to such an application would be that the applicant for extension of time should proceed forthwith to lodge the complaint and should proceed with the prosecution inasmuch as the period of six months had not expired. Consequently, I am prepared to hold, with the greatest deference to the learned Judges who were responsible for the 'obiter dicta,' to which I have referred, that the High Court has jurisdiction to extend the time even though the period of six months for which the sanction was in force has expired; I see no real risk or danger in so holding. It is obvious that the object of the provision relating to the period of six months is a laudable one, namely, to prevent a prosecution from hanging over the head of the accused person or persons for an undue or unreasonable time, and, in my judgment, the High Court, when considering such an application as this, ought to be very careful not to extend the time unless it is clearly shown that 'good cause' for extending the time exists within the meaning of the section. If such care is taken, I see no reason why the interpretation of the section, which I have adopted, should lead to any unfairness or injustice to the accused person.
7. It only remains for me now to consider the facts of this case and I propose to deal with them shortly. They are of no general importance. In my judgment the petitioner has made out a good case why the time should be extended. Although it was open to the petitioner to institute the proceedings at any time after the 13th of June, 1921, which is the date of the sanction, it does not seem to me to be altogether unreasonable that the petitioner should, under the circumstances of this case, have postponed filing his complaint till the defendants' application for revocation of the sanction had been disposed of. This was not until the 26th September; 1921. I desire, however, to make it clear that this must not be taken as a decision that the application to the District Judge for revocation of the sanction was a bar to the institution by the complainant of proceedings in pursuance of the sanction. If the complainant had instituted the proceedings it would, no doubt, have been open to the Court to stay further proceedings until the decision of the learned District Judge was given, I am satisfied that, shortly after the learned District Judge disposed of the application for revocation, the petitioner did become seriously ill and I am also satisfied that he continued to be ill from that time up to February, 1922. In February, 1922, he made his application to this Court and, therefore, in my judgment, there was no undue delay on the part of the petitioner. For these reasons, in my judgment, this rule must be made absolute and the time should be extended. We extend the time by one month from to-day. We give directions to the office to send down the record with copy of our judgment to the lower Court as soon as possible.
8. I agree.