Ameer Ali and Handley, JJ.
1. It appears that a charge under Section 406 of the Indian Penal Code was brought by one Ramadhin Singh against Buchar Gope. That case was tried by Moulvi Mohammed Abdul Kadir, the Deputy Magistrate of Bhagalpore. He discharged the accused Buchar Gope under Section 258 of the Code of Criminal Procedure, declaring the case to be a false one, and directed prosecution of the complainant in that case under Section 211 of the Indian Penal Code. The present petitioner Jhalan Jha was examined in that case as a defence witness, and the Deputy Magistrate says that it was argued in Buchar's defence that Ramadhin had been set up by Jhalan Jha's tehsilar Pradip Roy under Jhalan Jha's instructions. The Deputy Magistrate in his judgment commented severely upon the evidence for the prosecution and also on the alleged connection of Jhalan with Ramadhin. His impression at that time apparently was that Jhalan Jha was at the bottom of that prosecution. Application was made to him under Section 195 of the Code of Criminal Procedure for sanction to prosecute, under Sections 211 and 193 of the Indian Penal Code, Jhalan Jha, Ramadhin and others. The Deputy Magistrate in a careful and considered judgment, in which he reviewed the entire evidence with extreme discrimination came to the conclusion that it was not a case, in which he should grant sanction for the prosecution of Jhalan Jha, and he expressed himself thus: 'I therefore refused to accord sanction, and discharged the Rule with the remark that Ekradeswar Singh put up Buchar Gope to make the application and procured the witnesses to satisfy his old grudge against Jhalan Jha, who has already been put to much trouble and expense.' Bearing in mind the fact that in his previous judgment he had expressed himself strongly on the alleged connection of Jhalan Jha with the complainant in the criminal breach of trust case, it appears to us that in dealing with the application under Section 195 of the Code of Criminal Procedure he approached the case with an open and fair mind to consider upon its merits the application for sanction.
2. Sanction, being refused by the Deputy Magistrate, application was made to the Sessions Judge, ostensibly on behalf of Buchar Gope. The learned Sessions Judge has refused sanction under Section 211. But he has come to the conclusion that sanction may be given to prosecute Jhalan Jha for having given false testimony in respect of one particular matter, viz., that he did not know Ramadhin Singh.
3. We have gone through the judgments of both the Deputy Magistrate and the Sessions Judge, and after a careful consideration we have come to the conclusion that this is not a fit case in which the sanction granted by the Sessions Judge should be maintained. The Deputy Magistrate, who had the witnesses before him and who was in a position to observe their demeanour and to weigh their testimony upon a careful analysis of theirs and weighment of their statements, thought it inexpedient in the ends of justice to grant the sanction. The learned Sessions Judge did not have the same advantage. Upon a small residuum of the case lie thought that sanction may be given for the prosecution of Jhalan Jha under Section 193 of the Indian Penal Code. We are of opinion that such sanction would lead to no result excepting harassment and become the means of satisfying what the Deputy Magistrate called an 'old grudge.' The power of granting sanctions possessed by Appellate Courts ought in our opinion to be exercised carefully, especially when sanction is refused by the Court of first instance.
4. For these reasons we are of opinion that the Rule ought to be made absolute, and we accordingly make it absolute.
5. The opposite party appeared by learned Counsel and wanted to be heard. The Rule was issued upon the Magistrate of the district, and sanction having been granted by the Sessions Judge for purposes of public justice, Buchar Gope as the opposite party has no locus standi. We do not seen disposed to vary the practice of this Court by hearing Mr. Hill on behalf of Buchar Gope.