1. This was a rule calling upon the District Magistrate of Sahabad to show cause why the order to prosecute the petitioners under Sections 466, 467 and 471, Indian Penal Code, should not be set aside on the ground that it was made without jurisdiction inasmuch as the sanction of the Civil Court was necessary, because the petitioners are only liable to be tried as abettors or joint offenders with the party to the probate suit.
2. As regards the charge under Section 467 of forging the Will and abetting such forgery by the attesting witness there is, we find, a strong body of authority in the Madras, Bombay and Allahabad Courts that sanction is not necessary against any person who is not a party to the suit and that witnesses are; not to be considered parties to the suit. Moreover, the Judge is not competent to grant such sanction even if it is asked for against any but the actual parties in the case before him. We have considered the cases of Eadara Virana v. Queen 3 M. 400; In re Devje valad Bhavani 18 B. 581; Sequeira v. Luja Bai 25 M. 671; Noor Mahamad v. Kaikhosru 4 Bom. L.R. 268; Anna Ayyar v. Emperor 30 M. 226 : 6 Cr. L.J. 131 and Emperor v. Ghansham Singh 32 A. 74 : 4 Ind. Cas. 105 : 6 A L.J. 983 : 10 Cr L.J. 497 and there are other cases to the same effect and no case per contra. There is no direct authority on the point in this Court but the Judges in Akhil Chandra Deo v. Queen Empress 22 C. 1004 seem to have taken the rule for granted at page 1006 where they point Out the difference in the power of a Civil Court in directing a prosecution under Section 476 in respect of any document or act which is brought under its notice in the course of a judicial proceedings and the power to grant sanction under Section 195 which is qualified in certain cases like the present where sanction can Only be given against a party to any proceeding in Court. Had the matter been res Integra this is the view that we should have had to take on the word of the statute.
3. But it is argued on the authority of Giridhari Marwari v. Emperor 12 C.W.N. 822 : 8 C.L.J. 73 : 8 Cr. L.J. 51, to which one of us was a party, that sanction is necessary where there are other charges involving the necessity of sanction which may be made against the accused.
4. It is pointed out that the private prosecutor did actually apply for sanction to prosecute the petitioners and the lady who propounded the Will as a party to the probate case, tinder Sections 467, 471, 193 and 182. This application was for some reason withdrawn. Now, it is obvious that had the application gone on, the Judge could only have given sanction as regards Sections 193 and 182 against the present petitioners and would have been obliged to decline jurisdiction in respect of Sections 467 and 471 except as regards the lady who was a party to the probate suit. The fact that there were other charges intimately connected with the charges under Section 467 and Section 471 might induce this Court to exercise its powers of supervision by directing the stay of proceedings until the whole case against an individual was complete and ready for trial by obtaining sanction upon other necessary charges and this is precisely what happened in Giridhari's case 12 C.W.N. 822 : 8 C.L.J. 73 : 8 Cr. L.J. 51. Giridhari was a party to the suit and had hotly contested the genuineness of the document which he was alleged to have forged. It was further alleged that he had defrauded the complainant under Section 423 by executing the document and had been guilty of false personation under Section 82 of the Indian Registration Act.
5. The Judges held that it was desirable that the case under these latter sections should not proceed until sanction had been obtained as regards the forgery, for it was unfair on the accused to be tried piecemeal for a single transaction.
6. But here the facts are quite different. One petitioner is the scribe who is alleged to have forged the Will before it was brought into Court, and the other is an attesting witness who abetted such forgery at the time by affixing his signature. If the Civil Court did not see fit to commit these persons for perjury and giving false information under Sections 193 and 182 in respect of the evidence they gave in Court, it was certainly not incumbent on the private prosecutor to refrain from prosecuting them for forgery on the ground that they had subsequently also committed perjury. In Giridhari's case 12 C.W.N. 822 : 8 C.L.J. 73 : 8 Cr. L.J. 51 the forgery, the user and the fraud under Section 423 were all one transaction supported by false personation.
7. Here the petitioners are not parties to the probate suit and the forgery is an offence antecedent to, and quite independent of, the probate proceedings. As regards the charge of user under Section 471 it is argued with some force that the only user alleged is the user in the Probate Court and that the present petitioners could only be charged with abetment of such user in Court. On this it is contended that the new Sub-section (3) to Section 195 makes the provisions of Sub-section (1) with reference to the offences named therein, apply also to the abetment of such offences and attempts to commit them, and, therefore, sanction is necessary against the abettor of user in Court.
8. It is doubtful whether a witness who swears to the truth of a document in Court can be said to abet its use. It has been ruled in the case of Asimuddi v. Emperor 11 C.W.N. 833 : 5 C.L.J. 454 : 5 Cr. L.J. 351, that it is impossible to say that a person who merely gives evidence uses the document, unless he endeavours to induce some person or the Court to do some act which he or it would not do if it was known to be a forgery.
9. If the wide proposition of law laid down by the Allahabad Court in Ghansham Singh's case 32 A. 74 : 4 Ind. Cas. 105 : 6 A L.J. 983 : 10 Cr L.J. 497 is followed no question arises on the abetment by a witness, as that ruling clearly lays down that it is only abetment by a party which requires sanction.
10. We see no reason to differ from that decision at the present stage of the case. It has much to support it. If the words abetment of such offence' be substituted for the word offence' in every passage in which the word offence appears in Clause (c) Sub-section (1) the interpretation of the Allahabad Court is on the face of it correct.
11. If it only be substituted for the word offence' in the first line of the clause the interpretation might conceivably be the other way, but that question does not at present arise as the petitioners are charged with actual user and not with abetment.
12. If that user was confined to their action in giving evidence in Court they will have a good defence on the authority of this Court in Asimuddi's case 11 C.W.N. 833 : 5 C.L.J. 454 : 5 Cr. L.J. 351 above referred to, but if the user consists in other acts preparatory to the case in Court, as for instance, if they made use of the lady petitioner in probate as a mere tool to further their own designs there may be a case of user under Section 471 which should go to trial.
13. At present we are not concerned with the allegations of the parties but only with the question whether sanction is or is not necessary. On a consideration of the authorities we have cited 'we find that sanction is not necessary and we accordingly discharge the rule.