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Chattu Gope and ors. Vs. Budhu Lal and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.472
AppellantChattu Gope and ors.
RespondentBudhu Lal and anr.
Excerpt:
criminal procedure code (act v of 1898), section 195 - sanction to prosecute, application for--delay, when not fatal--judicial proceeding, whether application for leave to sue is--presidency small cause court, power of, to administer oath--high court, pouter of, to interfere with order of presidency small cause court refusing to sanction prosecution. - .....them should not be set aside, or why an enquiry should not be directed in order to grant such sanction. the application was headed 'in the matter of section 115 of the code of civil procedure,' but when it was made, it appeared to me to be more appropriate to head it under the criminal procedure code, and in fact the learned standing counsel treated it as such an application. it has been argued that it does not come under section 115 of the code of civil procedure. this is not necessary, to consider. under section 195 of the code of criminal procedure this court is the superior court of the presidency small cause court and has power to deal with the order which was made by that court. this has not been seriously contested by learned counsel who appeared for the plaintiffs. formal.....
Judgment:

Chaudhuri, J.

1. In these matters, 1 issued lJules on the plaintiffs in the above suits to show cause why the order refusing sanction to prosecute them should not be set aside, or why an enquiry should not be directed in order to grant such sanction. The application was headed 'in the matter of Section 115 of the Code of Civil Procedure,' but when it was made, it appeared to me to be more appropriate to head it under the Criminal Procedure Code, and in fact the learned Standing Counsel treated it as such an application. It has been argued that it does not come under Section 115 of the Code of Civil Procedure. This is not necessary, to consider. Under Section 195 of the Code of Criminal Procedure this Court is the superior Court of the Presidency Small Cause Court and has power to deal with the order which was made by that Court. This has not been seriously contested by learned Counsel who appeared for the plaintiffs. Formal amendment of the heading will, if necessary be made. So far as the verification of the application before me is concerned it is undoubtedly faulty; but inasmuch as I think that this is a fit case for an enquiry before sanction is granted, I do not think that such faulty verification much matters. The learned Judge who dealt with the application in the Small Cause Court does not appear to me to have taken a correct view of the nature of an application for leave to sue. He has held that such an application is not a stage in a judicial proceeding. It seems to me that it is, where such leave is necessary to give the Court jurisdiction. Rule 87 of the Small Cause Court requires an application for leave to sue to be verified as a plaint. It requires the party making such an application to be present with such evidence as may be required by the Court in support of the applicant's allegations. The practice in the Small Cause Court has apparently been to take the oath of the party when he makes such an application. There is ample jurisdiction in the Court to administer an oath at that stage, and such oath, when administered, is an oath taken in the course of a judicial proceeding. I do not; think it necessary in the view I take to deal with the cases which have been cited on this point. Learned Counsel, Mr. Norton, has rightly contended there has been considerable delay in this matter. The delay has been explained in the affidavits before me. No doubt there was no explanation of the delay before the learned Judge, before whom the application was originally made; and although Mr. Pearson, who appeared for the plaintiffs, asked for such explanation, no explanation was given. It has, however, been given now. It would undoubtedly have been better if such explanation had been then given; but there is no reason to doubt the facts which have now been placed before me. In the circumstances some of the delay was unavoidable especially, as references had' to be made to the Bihar Government. The delay in this matter is not such as to lead me to think that there is any likelihood of the plaintiffs being prejudiced the prosecution has been taken up by the Crown. I direct that an enquiry be held by the learned Judge as to whether sanction should be given upon the materials placed before the Court. The Oaths Act, under which the suits were dismissed, has nothing to do with the matter. The merits of the cases were not decided, as upon a trial, but the result of the special oath was the dismissal of the suits. But the grounds, upon which the jurisdiction of the Court was invoked, when leave was asked for to institute the suits, are alleged to be false. Whether such grounds are true or untrue, are to be enquired into. I think these are fit cases for such an enquiry. If upon such enquiry it be found that the allegations were false and leave to sue was improperly obtained, sanction should be given to the Crown to prosecute the persons concerned. I make the Rules absolute. The matters being in the nature of criminal proceedings. I do not direct any costs.


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