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Sarat Chandra Mandal and anr. Vs. Ram Sashi Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal45,69Ind.Cas.153
AppellantSarat Chandra Mandal and anr.
RespondentRam Sashi Roy and ors.
Cases ReferredHar Prasad v. Emperor
Excerpt:
criminal procedure code (act v of 1898,), section 195 sub-sections (6), (7) - sanction to prosecute--order of sessions judge confirming order of subordinate judge refusing to grant sanction, if can be revised by high court--high court's power of superintendence, exercise of--government of india act, 1915, (5 & 6 geo. v, c. 61), section 107--civil procedure code (act v of 1908), section 115. - .....the provisions of section 107 of the government of india act or under section 115 of the code of civil procedure, and further that having regard to the language used in sub-sections (6) and (7) of section 195 of the code of criminal procedure, only one application by way of appeal or revision against an crier passed by a court of first instance is contemplated in cares which ere not covered by the provisions of section 439, criminal procedure code, and, lastly, in any event, having regard to the facts of this case and having regard to the fact that two courts have refuted to grant sanction, this is not a fit and proper case for this court to interfere.5. in support of the first contention that section 107 of the government of india act does not apply to a case, of this nature, our.....
Judgment:

Ghose, J.

1. This Rule was issued calling upon the District Magistrate of 24 Pergannas and upon the opposite parties to show cause way the order passed by the learned Additional Sessions Judge, dated the 16th March 1922, confirming the order of the learned Subordinate Judge, should not be set aside and sanction granted to the petitioners under Section 195, Criminal Procedure Code, to prosecute the opposite parties on various charges of perjury and forgery.

2. The faces which have given rise to the application on which the Rule was issued are as fallows:

On the 28th October 1919 a suit was instituted being Title Suit No. 233 of 1919, in the Court of the Subordinate Judge of 24-Pargannas, First Court, by a Company called the Chitpur Golabari Company, Ltd., of which the Managing Agents are Messrs. Andrew Yule & Co., against three persons, named Srimati Alladi Dasi, Sarat Chandra Mandal and Sasi Bhusan Mandal for specific performance of an agreement for sale of certain lands for Rs. 10,000, alleged to have been executed by Srimati Alladi Dasi on the 18th May 1919, on receipt of a sum of Rs. 1,201 by way of earnest. The suit was not contested by Srimati Alladi Dasi bat the other two defendants, who were the roversionary heirs, defended the suit on the ground that the agreement in question bad not been executed by Srimati Alladi Dasi. The suit came on for hearing on the 26th July 1921 when the opposite parties Ram Sasi Roy and Kiran Chandra Ghose gave evidence in the causa to the effect that the agreement in question was executed on the 18th May, 4919 and that the sum of Rs. 1,201 was paid in currency notes which, amongst others, consisted in particular of two notes bearing numbers as follows:

VB/81 14-20 for Rs. 500.

VB/81 68788 for Rs. 500.

3. It transpired, however, from the evidence of a witness from the Currency Office, who was subsequently examined, that the carrency note for Rs. 500, which bore the No. VB/81 68788 was not in existence on the date of the said agreement and was in fact issued from the Currency Office more than two months after the said date. The suit itself was withdrawn on the 28th July 1921 on the ground that it had been prematurely instituted inasmuch as the period within which the agreement was to be performed had not expired on the date of the institution of the suit. The petitioners thereafter applied before the learned Subordinate Judge for sanction to prosecute a number of people including the opposite parties under various sections of the Indian Penal Code on the allegation that the agreement in question was a false and fabricated document and brought into existence long after the date it bore and that the opposite parties Ram Sasi Roy and Kiran Chandra Ghose? were guilty of perjury when they stated in the course of their evidence that the consideration mentioned in the agreement was paid in their presents. The learned Subordinate Judge, for the reasons given by him in his judgment, dated the 7th February 1922, was not satisfied that the agreement in question was a forgery. He thought that apparently a wrong number was noted against the currency note in question and that the wrong number had bean evidently taken from a hundred rupee note which had been given to Srimati Alladi Dasi at the time of the agreement. The matter was taken by the unsuccessful petitioners to the District Judge under the provisions of Section 195, Clause (6), Criminal Procedure Code, but the application to the District Judge did not succeed, he being of opinion that there was no reasonable ground for suspicion against the opposite parties on the materials placed before him.

4. On behalf of the opposite parties it has been contended that the present application to this Court is not maintainable either under the provisions of Section 107 of the Government of India Act or under Section 115 of the Code of Civil Procedure, and further that having regard to the language used in Sub-sections (6) and (7) of Section 195 of the Code of Criminal Procedure, only one application by way of appeal or revision against an crier passed by a Court of first instance is contemplated in cares which ere not covered by the provisions of Section 439, Criminal Procedure Code, and, lastly, in any event, having regard to the facts of this case and having regard to the fact that two Courts have refuted to grant sanction, this is not a fit and proper case for this Court to interfere.

5. In support of the first contention that Section 107 of the Government of India Act does not apply to a case, of this nature, our attention has been called by Mr. Sanyal to a number of cases decided in this Court and elsewhere. It is unnecessary to go through the cases. The principle, as we understand, is this that although this Court is vested with very wide powers of superintendence over the proceedings of subordinate Courts, these powers are not to be exercised for the purpose of interfering with the order of a subordinate Court merely on the ground of error in law or error in fact. In other words, the powers of superintendence are not applicable where the only question is whether the decision of the lower Court is against the weight of evidence, Now, applying this principle to the facts of the present case, we cannot but tome to the conclusion that Section 107 of the Government of India Act cannot be invoked in support of the present application for sanction to prosecute, Nor can we bold that this is a sustainable application under the provisions of Section 115 of the Code of Civil Procedure. There has been no excess of jurisdiction nor failure to exercise jurisdiction; and on the facts it is difficult to say that this case can be brought within the last clause of Section 115 see. in this connection Ram Prosad Malla v. Raghubar Malla 4 Ind. Cas. 6 : 37 C. 13 : 13 C.W.N. 1038 : 10 Cr.L.J. 454.

6. There now remains the question whether having regard to the terms of Sub-sections (6) and (7) of Section 195, Criminal Procedure Code one or more applications against an order pasted by a Civil Court of first instance are contemplated in cases not covered by Section 439, Criminal Procedure Code, The decided cases on this point are not uniform and we think the solution of the question ought to be determined on a consideration of the terms of the sub-sections. Now reading the words of Sub-section (6), I doubt if the words any sanction given or refused under the section' could have been intended to mean anything else but the sanction given or refused in the first instance. If that is so, than only one appeal or rather one application in revision would appear to have been contemplate 1 by this sub-section, Then look at the words of Sub-section (7). It provides that for the purposes of the section every Court shall be deemed subordinate only to the Court to which appeals from such Court ordinarily lie. I doubt very much if the Legislature intended in cases not covered by Section 439, Criminal Procedure Code to allow a succession of appeals or applications in revision. However that may be, we think this application must fail on the facts. In this case, two Courts have refused to grant a sanction, because they have held that there is no clear prima facie case against the opposite parties. This is in accordance with the principle that a sanction given under this section is not a mere formal matter and that before sanction can be granted it is necessary for the Court to see if there is a prima facie case against the opposite parties. Farther, the Court will be astute to see that no abuse of the administration or criminal justice takes place. We think there is much to be said in favour of the view taken by the District Judge that a mistake was probably committed by the opposite party, Ram Sasi Roy, in setting out the numbers of the currency notes. At any rate on the entire facts of this case, we are not prepared to differ from the view taken by the two Courts below.

7. The Rule, therefore, fails and must be discharged.

Cuming, J.

8. The facts are these.

9. The petitioners sought for sanction to. prosecute the opposite party for using as genuine a certain Baina-Patra which they allege is a forgery and has been fraudulently ante-dated.

10. The learned Subordinate Judge for reasons which at present it is not necessary to specify, refused the sanction. The District Judge was then moved and he also refused the sanction. The petitioners--have moved this Court and obtained this Bale The first point that has been argued is whether this Court has any power to interfere and, if so, under what provision of the law. The petitioners contend that under Sub-section (6) of Section 195, the Subordinate Judge is a Court subordinate to the High Court and so is the District Judge. The Subordinate Judge having refused sanction, application for sanction could be made to the District Judge and he having refused sanction, application could then be made to the High Court. Sab-section (6) provides 'any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate.' Sub-section (7) provides: 'For the purposes of this section every Court shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie, that is to say, (a) where such appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate.'

11. Reading the plain words of the section, it is quite clear that for the purposes of Section 195 the Court of the Subordinate Judge is subordinate only to the District Judge, The use of the word 'only' would seem to make this clear. The decisions on the point in this Court are some-what conflicting.

12. In favour of the view which the petitioners desire us to take there are the cases of Habibar Rahaman v. Khoda Bux 5 C.L.J. 219 :11 C.W.N. 195 : 5 Cr.L.J. 29 and Girija Sankar Roy v. Binode Sheikh 5 C.L.J. 222 : 5Cr. L.J. 188 These authorities favour the view that ibis Court could deal with the matter under Section 195, Sub-section (6).

13. The contrary view has been taken in the age of Hamijuddi Mondol v. Damodar Ghose 10 C.W.N. 1026 : 4 Cr.L.J. 168. This ruling was followed in the case of Ram Prosad Malla v. Raghubar Malta 4 Ind. Cas. 6 : 37 C. 13 : 13 C.W.N. 1038 : 10 Cr.L.J. 454.

14. In that case Hamijuddi Mondol v. Damodar Ghose 10 C.W.N. 1026 : 4 Cr.L.J. 168 it was held that the High Court was not an appellate authority within the meaning of Sub-section (7). In that case the District Judge had revoked the sanction granted by the Munsif.

15. It is perhaps difficult to distinguish this case from the two cases in Habibar Rahaman v. Khoda Bux 5 C.L.J. 219 : 11 C.W.N. 195 : 5 Cr.L.J. 29; Girja Sankar Roy v. Binode Sheikh 5 C.L.J. 222 : 5Cr. L.J. 188 though one learned Judge was a party to all three rulings. In the case of Ram Prosad Malla v. Raghubar Malla 4 Ind. Cas. 6 : 37 C. 13 : 13 C.W.N. 1038 : 10 Cr.L.J. 454 the learned Judge followed the ruling reported as Hamijuddi Mondol v. Damodar Ghose 10 C.W.N. 1026 : 4 Cr.L.J. 168. Reading the plain words of the section it would seem Quite clear that in the present case the Court has no jurisdiction to interfere under (Section 195(6) and (7) and I have no hesitation in following the rulings in Hamijuddi Mondol v. Damodar Ghose 10 C.W.N. 1026 : 4 Cr.L.J. 168 and Ram Prosad Malla v. Raghubar Malla 4 Ind. Cas. 6 : 37 C. 13 : 13 C.W.N. 1038 : 10 Cr.L.J. 454,

16. The point then remains, is there any provision of law under which this Court can deal with the present case. In the case of Ram Prosad Malla v. Raghubar Malla 4 Ind. Cas. 6 : 37 C. 13 : 13 C.W.N. 1038 : 10 Cr.L.J. 454 this Court held that the matter could be dealt with under Section 115, Civil Procedure Code. In the case of Har Prasad v. Emperor 19 Ind. Cas. 197 : 40 C. 477 : 14 Cr.L.J. 197 : 17 C.W.N. 647 : 17 C.L.J. 245 the Full Court held that the Court could interfere under Section 115 of the Civil Procedure Code or under Section 15 of the Charter, That was a case under Section 476 of the Criminal Procedure Code.,

17. Speaking for myself and with great respect to the learned Judges who have held otherwise I should have great difficulty in holding that an application for sanction to prosecute could be the subject of revision under Section 115, Civil Procedure Code.

18. Section 115 of the Civil Procedure Code obviously refers to civil matters and civil matters only. It is found in the Code of Civil Procedure and can have no application to criminal matters.

19. An application for sanction to prosecute is made under Section 195 of the Criminal Procedure Code. The fact that it is made to a Civil Court seems to me immaterial. It is granted under a section of the Criminal Procedure Code and I must admit I find some difficulty in understanding how a section of the Civil Procedure Code could be invoked to deal with a sanction granted under a section of the Criminal Procedure Code.

20. It has further been suggested that the Court has power under Section 107 of the Government of India Act.

21. Here again speaking for myself and again with great respect I have considerable difficulty in seeing how it can come within the purview of this section. Assuming, however, that matter could be dealt with either under Section 115, Civil Procedure Code, or Section 107, Government of India Act, we could not interfere with the findings of the lower Court. The two Courts have held after considering the evidence that the evidence would not justify granting sanction to prosecute. In doing so they may or may not have come to a wrong finding of fact but it is obviously not a case which would fall within Section 115. It is not a question of exercise or non-exercise of jurisdiction nor is it a material irregularity or illegality.

22. Nor would it fall under Section 107, Government of India Act. That power is exercised only in exceptional cases and this is clearly not an exceptional case. Here two Courts have held that on a review of the evidence they will not grant sanction, I, therefore, agree in discharging the Rule.


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