1. Two main questions have been argued before us. In the first place it is contended that the Judge had no jurisdiction to entertain the appeal, and secondly that no offence had been committed.
2. The first question turns upon the construction of Section 487 of the Code of Criminal Procedure. The Sessions Judge who tried the case, Mr. Cameron had given sanction for the institution of the charge. The charge was one under Section 210 of the Indian Penal Code for causing a decree to be executed against the complainant after it had been satisfied. The Munsif had refused sanction the Judge had given it. A prosecution was accordingly instituted, and the case was heard by a Deputy Magistrate, and then came up on appeal before the Judge who had given sanction.
3. Section 487 provides that, except as provided in certain of the preceding sections, no Judge of a Criminal Court or Magistrate other than a Judge of the High Court shall try any person for any offence referred to in Section 195, when such offence is committed before himself or is brought under the notice of such Judge or Magistrate in the course of a judicial proceeding.
4. In the first place there can be no doubt, we think, that the trial of an appeal is included in the expression 'shall try any person.' The offence which is charged was undoubtedly an offence referred to in Section 195, and the offence charged here is one of the offences mentioned in that section. The only real question as to the applicability of Section 487 is, whether the offence was brought under the notice of this Judge in the course of a judicial proceeding.
5. With regard to that there can be no doubt that the hearing of the appeal from the order refusing the sanction was a judicial proceeding within the meaning of the Code of Criminal Procedure. That Code defines 'judicial proceeding' as any proceeding in the course of which evidence is or may be legally taken. On the appeal from the order of the Munsif refusing sanction, the Judge undoubtedly had power to take evidence, and therefore it was; a judicial proceeding, and it was in the course of that proceeding that the offence: was brought under his notice, because the appeal was with reference to the refusal to sanction the prosecution. When that offence is established, Section 487 applies, and the Judge had no jurisdiction to entertain the appeal.
6. With regard to the second objection, inasmuch as there will be a fresh trial, we think it undesirable to prejudge the question now. It will be open to the defendant to argue it when the appeal is heard and all the facts have been gone into (see next case). Under the circumstances we think it would be better that the appeal should be heard in this Court, and we direct that it be so heard, and that notice thereof be given to both parties and to the Magistrate. The prisoner to be released on bail to the satisfaction of the Magistrate pending the hearing of the appeal.