1. We are invited in this Rule to set aside an order made by the Subordinate Judge of 24-Pergannahs, under Section 195, Criminal Procedure Code, which has been confirmed by the learned District Judge under Clause (c) of that section. The circumstances under which the order has been made are not disputed.
2. The petitioner before us obtained a certificate under the Succession Certificate Act in respect of the estate of his deceased brother. An application was subsequently made by the widow of his brother, Muktarani Dasi, an infant represented by her father Hari Mohan Das for revocation of the certificate on the ground that it had been obtained by fraud. This application was allowed and the certificate was revoked. The learned Subordinate Judge in his judgment in that erise held that the . certificate had been obtained by fraud and observed that the petitioner Rajendra Nath Das ought to be prosecuted for perjury and forgery. On the 8th February 1909, on which date the revocation case was decided, notices were directed to issue upon Rajendra Nath Das calling upon him to deliver up the certificate which had been revoked and also to show cause why he should not be criminally prosecuted. Cause was shown and the Subordinate Judge on the 5fch Jane 1909, recorded an order to the following effect: I, therefore, accord my sanction to Muktarani Dasi to prosecute Rajendra Nath Ghosh for forgery and perjury in the Criminal Court'. This order, it is not disputed, was open to objection on three grounds:first, that there was an error in the name of the person directed to be prosecuted, as his correct name was Rajendra Nath Das while he was described in the order as Rajendra Nath Ghosh; secondly, that while the proceedings had obviously been instituted under Section 476, Criminal Procedure Code, the order purported to grant sanction to Muktarani under Section 195 of the Code, though she had not applied for sanction under that section; and thirdly, that the order was vague as no details were given as to the charges of perjury and forgery. After this order had been made, the father of Muktarani Dasi applied to the Magistrate to issue process against Rajendra Nath Das. The Magistrate, however, declined to take any action, apparently on the ground that the person directed to be prosecuted was Rajendra Nath Ghose whereas process was sought against Rajendra Nafch Das. An application was accordingly made on the 31st July 190.9 to the Subordinate Judge, on behalf of Muktarani, to amend his order. Notice was thereupon issued to Rajendra Nath Das and cause wag shown. On the 4th September the Subordinate Judge recorded the following order : Fresh, petition be filed by Muktarani Dasi praying for sanction. Let this case be disposed of'. As we understand this order, the Subordinate Judge abandoned the proceedings which he had. initiated under Section 476 and in which he had by mistake recorded an order under Section 195. On that very date, Muktarani made an application under Section 195, in which she prayed for sanction to prosecute Rajendra Nath Das, setting out in detail the circumstances under which the offences of perjury and forgery were alleged to have been committed. Notice was issued again upon Rajendra Nath Das and cause was shown. Ultimately on the 2nd October 1909, an order under Section 195 was made. Rajendra Nath. Das subsequently applied to the District Judge to revoke this order, but he refused to interfere under Clause (c) of Section 195, Criminal Procedure Code. In this Court the order of the Subordinate Judge thus confirmed by the District Judge has been assailed substantially on two grounds, namely, first, that after the proceedings . under Section 476 had been commenced and had proved infructuous, no application under Section 195 ought to have been entertained; and, secondly, that the application under Section 195 presented by the minor Muktarani herself, without any next friend, ought not to have been entertained at all.
3. In so far as the first of these contentions is concerned, there is, in our opinion, no substance in it. After action has been taken under Section 476, and an order has been made which proves infructuous because not made in accordance with that section, or because it is defective in form, there is no reason why an application properly made under Section 195, should not be entertained. The position, of course, would be different if the order under Section 476 was set aside on the merits, but it is not contended that the order under Section 476 in this case was discharged on the ground that it was unjust on the merits. In fact, it is quite clear that if that order had been assailed in this Court in proper time, it would have been set aside on the ground that it was defective in form and as we have already seen, the proceedings were, as a matter of fact, abandoned by the Subordinate Judge as soon as he discovered the mistake he had made. We must, therefore, overrule the first contention on behalf of the petitioner.
4. In so far as the second ground is Concerned, it must, in our opinion, prevail. The application in the present case was made to a Civil Court under Section 195, Criminal Procedure Code. It was made by an infant who had in the original proceedings been represented by her father as her next friend. It was through some unexplained oversight that the proceedings under Section 195 were instituted in Tier own mime, and tile vakalatnarna also appears to have been given by her. It has not been disputed by the learned Vakil who has appeared to show cause that if an application is presented under Section 195, Criminal Procedure Code, to a Civil Court by a person who is an infant, it ought to be presented on his behalf by a properly appointed next friend. But it has been suggested, on the authority of the cases of Kamalakshi v. Ramasami Chetti 19 M. 127 and Doorga Mohuu Dass v. Tahir Ally 22 C. 270 that this objection comes too late, as it was not taken before the Subordinate Judge on the District Judge. We are unable to hold, however, that there has been any waiver on the part of the petitioner of this objection which goes to the root of the matter. The grant of an application under Section 195 is a matter of some consequence, and an application made in that behalf ought not to be entertained unless it is presented by some responsible person acting as the next friend of the infant concerned. The second contention of the petitioner must, therefore, prevail.
5. The result is that this Rule is made absolute and the order of the Court below discharged. U ruler the circumstances stated, we must also set aside the order which was made by the Subordinate Judge on the 5th June 1909 under Section 476, Criminal Procedure Code, as there is no room for controversy that the order as it stands is entirely erroneous. It purported to be an order under Section 476 but was in reality an order under Section 195 by which sanction was granted to a person who had never applied for it. The consequence will be that the whole matter will be set at large, and the Court as well as the parties will be at liberty to take such action as they may be advised. There will be no order as to costs.