Prinsep and Hill, JJ.
1. This rule was granted for the purpose of considering the legality of an order passed by the Chief Presidency Magistrate on the 20th April 1899, by which he refused, on the application of the petitioner before us, to accord sanction for the prosecution of Mr. N.N. Mitter, an Honorary Magistrate, under Sections 500 and 504 of the Indian Penal Code.
2. If appears from the affidavit and petition put in by the petitioner in support of the rule that he is a pleader of the Judge's Court of the 24-Pergunnahs, and that on the 7th April last he appeared on behalf of the prosecution in the case of Chumroo Singh v. Beni Madhub Singh, which was brought on for trial on that date before a Bench of Honorary Magistrates, of which Mr. N.N. Mitter was Chairman. When the examination of the complainant and of the witnesses for the prosecution who were present in Court had been concluded, Mr. Mitter intimated to the petitioner that he and his colleagues were agreed in thinking that the case ought to be dismissed, and were considering the propriety of calling on the prosecutor to show cause why he should not pay compensation to the accused. It was, thereupon, suggested by the pleader for the accused that instead of being required to pay compensation, the complainant should be prosecuted under Section 211 of the Penal Code, and Mr. Mitter then asked the petitioner whether he had anything to submit to the Court on this question. After this some discussion took place as to the calling of further evidence on behalf of the prosecution, and the petitioner stated, in view of the adverse opinion which had been expressed by the Court, that he considered it his duty to call the complainant's wife as a witness, where upon Mr. Mitter addressed the petitioner as follows: 'You have not properly considered the matter. The application for postponement is made simply to multiply your fees.' At this stage the complainant, who was not present when the petitioner proposed to call his wife as a witness, returned to the Court and was asked by Mr. Mitter if he would call his wife as a witness, to which he replied 'why should she come?' Then the petitioner went to the complainant and informed him of the opinion expressed by the Court during his absence as to the merits of the case and explained to him the necessity for calling his wife, on which the complainant informed the Court that he now thought it necessary to call his wife. The pleader for the accused then intervened and submitted to the Court that it was highly improper that the complainant should on his pleader's advice unsay what he had already said to the Court, and thereupon Mr. Mitter addressed the petitioner to the following effect: You are a dishonest man. You are a disgrace to the legal profession. You tutor witnesses. You do not know good manners; when you can tutor witnesses in the presence of three Honorary Magistrates, I do not know how much you tutor behind the back of the Court. You deal in dishonesty and chicanery. I am going to report your conduct to the Chief Presidency Magistrate; you should not be allowed, dishonest fellow as you are, to practise in this Court any longer.' It is unnecessary to pursue the incident further, though it does appear that Mr. Mitter afterwards in according pardon to the petitioner when 'his fit of anger was past,' again addressed him as a 'dishonest pleader.' There is no denial of any of these allegations, and it was under these circumstances and in respect of the language so used by Mr. Mitter that the petitioner applied to the Chief Presidency Magistrate for sanction under Section 197 of the Code of Criminal Procedure to prosecute Mr. Mitter for the offences of defamation and of provoking the petitioner by intentional insult to commit a breach of the peace.
3. The Chief Presidency Magistrate refused the application on two grounds: firstly, because he considered 'that Section 197 relates only to those acts or omissions by a Judge or public servant which are declared by any Act or Statute relating to India to be offences when they are committed by a Judge or public servant in their capacities as such;' and, secondly, because in his opinion a 'Judge is absolutely privileged when acting judicially, and no statement that he may make in a case, however malicious or untrue it may be, can be made the subject of any proceeding against him, either civilly or criminally.'
4. Before us the order of the Chief Presidency Magistrate was supported by the learned Standing Counsel, who showed cause on the above two grounds, and he also raised the question of the competency of this Court sitting as a Court of Revision to review the order. He relied upon the language of Section 439 of the Code of Criminal Procedure, where the revisional powers of the Court are specified, and pointed out, that while all the powers of a Court of Appeal under Section 195 of the Code are conferred on the High Courts, there is no power given to interfere in any way with a sanction granted under Section 197. To this it was replied that the Legislature, in giving the High Courts authority to exercise the power of granting or revoking a sanction to prosecute conferred on a Court of Appeal by Section 195, must be taken to have given the power to grant or revoke all such sanctions without limitation--a general power, that is, of reviewing the action of a Subordinate Court, whether the case be one that falls under Section 195 or Section 197 of the Code, and it was contended that since the High Court is empowered by Section 435 to call for and examine the proceedings of all Subordinate Courts for the purpose of considering the legality and propriety of such proceedings, it is empowered implicitly to pass proper orders therein.
5. The question does not appear to us to be of any very great importance, for we entertain no doubt that whether the provisions of Section 439 of the Code of Criminal Procedure are or are not wide enough to authorize our interference in the present case, we have quite sufficient authority for that purpose under Section 15 of the 'Charter Act' (24 and 25 Vic, 104). We may, however, say that in our opinion the contention of the learned Standing Counsel is correct. Section 439 of the Code of Criminal Procedure gives the High Courts, as Revisional Courts, authority to exercise any of the powers conferred on a Court of Appeal by Section 195 among other sections of the Code. The powers in this respect--Appellate and Revisional--are clearly co-extensive, and Section 195 does not confer on an Appellate Court any authority in respect of an order made by a Subordinate Court under Section 197. So far, therefore, as concerns the revisional powers conferred by the Code we have not this power.
6. The next question, namely, whether the learned Magistrate was right in holding that the present case does not fall within the purview of Section 197 of the Code, is one of somewhat greater difficulty. But having given the matter careful consideration we are of opinion that the view of the learned Magistrate is correct, and that he was consequently right in refusing to grant sanction for the prosecution of Mr. Mitter.
7. The law relating to the prosecution of Judges and public servants, now embodied in Section 197 of the Code of Criminal Procedure, has undergone modification more than once since the introduction of the Code of 1861. We do not think it necessary to refer more particularly to these changes at present, but we are unable to agree with Mr. Monier in his contention that they are indicative of an alteration of policy, or principle, on the part of the Legislature in the direction of an enlargement of the category of offences in respect of which the protection of a previous sanction to prosecute is afforded to the servants of Government. The changes upon which Mr. Monier commented appear to us to be changes of phraseology merely and not to involve any modification of principle, and we think, speaking generally, that in point of substance the scope and intention of the law as it was enacted in 1861, and as it now exists, are the same; under the Code of 1861 a Circular order was issued by this Court (C.O. 20, 1864) for the guidance of inferior Courts as to the scope of Section 167 of that Code, the section corresponding to Section 197 of the Code of 1898. It was then pointed out that the section related to offences which could be committed by public servants as such, and which are specified in chapter IX of the Penal Code. This explanation of the law was adopted by the Bombay High Court in the case of Beg. v. Prshram Keshav (1870) 7 Bom. H.C. Cr., 61, with a modification not, however, involving any matter of principle. The learned Judges said in relation to this Circular order: 'If the Circular referred to be correctly quoted we cannot fully concur in it, for it seems to us impossible to hold that Section 167 does not relate to such offences as those specified in Sections 217 to 223 of the Indian Penal Code, which are not contained in chapter IX of the Code. But we agree with the view which was no doubt intended to be expressed in the Circular, namely, that Section 167 relates only to those acts and omissions which are declared in the Penal Code to be offences when they are committed by a public servant': This criticism of the Circular order is no doubt correct. The case of Beg. v. Parshram Keshav was decided in the year 1870, and in the year 1877, the question again came before the Bombay Court. In the meantime the Code of 1861 had been superseded by that of 1872, which by Section 566 altered the law by rendering it necessary to procure the previous sanction of the specified authorities, not only in the ca3e of offences punishable under the Penal Code, but in the case of all offences committed by a public servant in his capacity of a public servant. In the case of 1877, Imperatrix v. Lakshman Sakharam (1877) I.L.R., 2 Bom., 481, the principle laid down in the earlier case was followed substantially. West, J., in delivering the judgment of the Court said: 'We are of opinion that the scope of Section 466 extends to all acts ostensibly done by a public servant, i.e., to acts which could have no special signification except as acts done by a public servant.' It may be remarked that in the observations, which immediately precede this passage in the judgment, where the learned Judge refers to the case of Beg. v. Parshram Keshav, the scope of Section 167 of the Code of 1861 appears to have been overlooked, but this consideration is not really material to the present question.
8. Then, in the year 1881, there was the unreported case of Sreemanto Chatterjee in this Court (decided 9th December 1881), in which Pontifex and Field, JJ., seem to have considered the construction placed on the first paragraph of Section 466 by the Bombay Court to be correct. Pontifex, J., there said: 'Now with respect to the first paragraph of Section 466 it would seem that there is room for the argument that the offences contemplated by that paragraph are only the special offences which can be committed by a public servant in his capacity of a public servant, that is, offences which are peculiar to his position as a public servant, and in that view if the first paragraph only of the section were applicable the contention of the present petitioner might be correct that a sanction would not be necessary before proceeding within his particular complaint.' The learned Judge then proceeded to comment on the second paragraph of the section, and by virtue of it he held that sanction was, in the particular case, necessary. The second paragraph of the section has not, however, been re-enacted either in the Code of 1882 or in that of 1898, and so far as the present question is concerned the law, as it now stands, corresponds in substance with the first paragraph of Section 466 of the Code of 1872. Field, J., was of opinion that 'the first paragraph of Section 466 was intended to apply to those cases in which the offence charged is an offence which can be committed by a public servant only, cases, that is, in which the a public servant is a necessary element in the offence.'
9. We are not aware of any other cases of this Court or of the Bombay Court, in which the question now before us has been dealt with. Mr. Monier, however, relied on the case In re Ghulam Muhammad (1886) I.L.R., 9 Mad., 439, in which Parker, Jeo, sitting alone, held under the Code of 1882, which corresponds in material particular with the present law, that, where a Judge was charged with using defamatory language to a witness during the trial of a suit, the complaint could not, under Section 197 of the Code, be entertained by a Magistrate without sanction, the reason assigned being that the Judge was then acting in his official capacity. That however with every deference to the learned Judge, appears to us to be a reason which can hardly be said to throw much light on the question.
10. The weight of authority, as is obvious from this examination of the cases, is decidedly in favour of the view taken by the Chief Presidency Magistrate,' and it is no doubt the View which has controlled the action of the Courts both in this and the Bombay Presidencies for a long series of years. We should hesitate, therefore, even if we were disposed to take a contrary view, to disturb an interpretation of the law so long recognized. But we should ourselves, in the absence of authority, have arrived at the same conclusion. The 'language of the section' is accused as such Judge,' etc., seems to us sufficient to indicate that the offence charged must involve, as one of its elements, that it was committed by a person filling that character, and it is not apparent why, in cases outside that category, the sanction provided for by the section should be required. It is to be observed, moreover, that all public servants, who are irremoveable from office without the sanction of the Government of India or Local Government, are placed on precisely the same footing as Judges. If they are to be exempted from criminal liability for all acts amounting to offences done by them, while acting in their official capacity, unless the sanction for which the section provides can be obtained, it would lead to results which cannot, we think, have been contemplated or intended by the Legislature. There is also the consideration arising from the practically unlimited control reserved to Government by the second clause of the section over the proceedings. The clause applies equally to all cases coming within the purview of the first clause, but we think it would be unreasonable to suppose that in a case such as the present, for example, it was the intention of the Legislature that the Government should determine not only the tribunal and manner of trial, but also the offence for which the trial is to take place. The existence of the power given by this clause, which, it may be remarked, is of wider scope than the corresponding clause of the earlier Codes, militates in our opinion strongly against the view for which the petitioner contends.
11. We would add that an order passed under Section 197 supersedes all powers of transfer conferred on the High Court by Section 526(see Sub-section 7 of that section.)
12. We are then of opinion, as we have already stated, that the learned Magistrate was right in holding that sanction to prosecute under Section 197 of the Code was unnecessary in the present case, and the rule must consequently be discharged.
13. It is unnecessary, and we think undesirable, that we should go into the further question dealt with by the Magistrate as the immunity of judges from criminal liability for acts done in the exercise of their judicial powers.