1. This is a Rule obtained by the Deputy Legal Remembrancer and Public Prosecutor of Behar and Orissa calling upon the opposite party to show cause why sanction for his prosecution under Section 208 of the Indian Penal Code should not be granted.
2. It appears that the opposite party on the 10th of December 1912 brought a Hint against Naik Lahera and Hira Lahera in the Court of the 2nd Munsif of Muzaffarpore to recover the sum of Rs. 35.
3. This suit was on the 3rd of February 1913 dismissed the claim being found to be false and malicious. On the 20th of November id IS an application was made to the 2nd Munsif for sanction to prosecute the opposite party. The Munsif heard such application and examined witnesses. The conclusion arrived at by the Munsif was that although the suit brought by the opposite party was false, sanction ought to be refused on the ground of delay in making the application An appeal was then preferred to the learned Additional District and Sessions Judge, but he refused to interfere on the ground of delay. Acting under instruction from the Govern in out of Bihar and Orissa, the present applicant applied for and obtained the present Rule
4. On the hearing of the present Rule it has been argued that we have no jurisdiction to revise the order of the Additional District Judge, such order not having been passed by a Criminal Court. A large number of authorities have been cited before us, but in the view I take it is unnecessary to consider these authorities. In my opinion the Jaw, so far as this Court is concerned, has beem finally settled by the decision of tins Full Bench in the case of Har Prasad Das v. Emperor 19 Ind. Cas. 197 : 17 C.W.N. 647 40 C. 477 : 17 C.L.J. 245 : 14 Cr.L.J. 197. The cast: defore the Full Bench was no doubt an order passed under Section 476 of the Code of Criminal Procedure, hut no distinction can be drawn between an order under Section 476 and a sanction under Section 195 for the purpose of considering the question of jurisdiction. What, however, is abundantly clear from the decision of the Full Bench is that the orders of the munsif and the Additional District Judge are not orders of a Criminal Court and, therefore, cannot be revised by us under Section 439 of the Code of Criminal Procedure. We have, however, been duly authorised by the Chief Justice under Section 14 of 24 and 25 Vic., C. 104, power to deal with these orders under Section 115 of the Civil Procedure Code and Section 15 of 24 and 25 Vic., C. 104. The point arisen whether we ought to exercise such jurisdiction in the case before us.
5. It has not been suggested in the argument that there is any general rule of practice followed in this Court as to the Court exercising or refusing to exercise the powers that it possesses to revise orders of this nature. The authorities that were cited during the argument are in many instances difficult to reconcile with each other and in some cases difficult to understand. Ought we, therefore, to interfere with these orders refusing sanction by the lower Courts? The ground for refusing sanction in the Courts below was solely that of delay. Doubtless in many cases where there is delay by a person in applying for the sanction to prosecute, the delay may suggest a want of: good faith on the part of the applicant. The present case, however, is in substance a prosecution undertaken by the Government and mere delay cannot, therefore, be taken as suggesting mala fides.
6. I think the reasons assigned by the lower Courts for refusing to grant a sanction when they came to the conclusion that the suit was false and malicious, are insufficient and have occasioned a failure of justice. I think the present Rule ought to he made absolute and sanction should be granted to prosecute the opposite party under Section 209 of the Indian Penal Code. We accordingly sanction the prosecution of Ram Udar Singh under Section 209 of the Indian Penal Code for having on the 10th December 1912 dishonestly made a false claim in Court, viz., in Suit No. 308 of 1912 in the second Court of the Munsiff at Muzaffarpore against Naik Lahera and Hira Labera.
7. I agree.