Lancelot Sanderson, C.J.
1. This is a Rule calling upon the District Magistrate of Midnapur and on the opposite party to show cause why the orders of the lower Courts referred to in the petition should not be set aside and suit other or further order made as to this occur may seem fit and proper. The order referred to are, 17 W.R. 46 Cr, that of Mr. Jagat Chandri Mitra, and 1 A. 17 (F.B.) : 1 Ind. Dec. (N.S.) 11 that of the First Additional Special Judge of Midnapur. The case of the petitioner is, that the opposite party filed a kobala during the bearing of an application made by the petitioner against the opposite party under Section 105 of the Bengal Tenancy Act. The case was heard by Mr. Rajendra Nath Rakhit who found the Kobala to be a forgery. The said Mr. R.N. Rakhit is described in the petition as an Assistant Settlement Officer,' the more correct description would be Assistant 'Revenue Officer,' the term used in Section 105 of the Bengal Tenancy Act. The petitioner applied to Mr. R.N. Rakhit fir sanction to prosecute the opposite party under Sections 193, 46 j 471, Indian Penal Code.
2. Mr. Rakhit was on the point of going to Jessore, he having been transferred to that place, and he consequently did not take any action.
3. Applieation was then made to Mr. K.C. Ganguli, who was then acting as the Revenue Officer, he transferred the application to an Assistant Revenue Officer in the District of Midnapur, Mr. J.C. Mitra, who dismissed the application, holding that he had no jurisdiction to deal with it. Ha directed the applicant to move the proper Court for the sanction asked for and further directed the petition to be filed. The petitioner then made an application to the First Additional Special Judge of Midnapur, who, on the 24th July 1910, dismissed the application on the ground that the application to him was not by way of appeal, but was a substantive application, and that as sanction had been neither given nor refused by the Subordinate Court, he held that the application was not maintainable.
4. It is clear that the application to the Additional Special Judge was a substantive application and was not by way of appeal and the question is, whether the Additional Special Judge has jurisdiction to entertain the application.
5. The statutory provision whish applies to this matter is Section 195(c) of the Code of Criminal Procedure, 1898, which provides as follows: 'No Court shall fate cognizance...(c) of any offence described in Section 463 or punishable under Section 471, 475 or 476 of the same Code, when such offence has been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except with the previous sanction, or on the complaint, of such Court, or of some other Court to which such Court is subordinate.
6. It is not disputed that Mr. R.N. Rakhit, who heard the case under Section 105 of the Bengal Tenancy Act, was a Court within the meaning of Section 195(c) of the Code of Criminal Procedure. Mr. R.N. Rakhit's Court, however, ceased to exist when Mr. R.N. Rakhit was transferred to Jessore. It was agreed by the learned Rakils, appearing for the respective parties on the hearing of this Rule, that Mr. J.C. Mitra could not be said to be a successor of Mr. R. N. Rakhit and they further agreed that Mr. J.C. Mitra had no jurisdiction to grant the sanction to prosecute, which the petitioner applied for, on the ground that the proceedings under Section 105 of the Bengal Tenancy Act, in the course of which the kobala had been put in evidence, had not been taken in his Court.
7. There is no doubt that the Court of the Additional Special Judge was a Court to which the Court of Mr. R.N. Rakhit and that of Mr. J.C. Mitra were subordinate within the meaning of Section 195(c), but it was argued that the Additional Special Judge could not entertain the application, as it was a substantive application for sanction and an application in respect thereof could only be entertained by the Additional Special Judge after sanction had been given or refused by a subordinate Court. In this case the subordinate Court was Mr. R.X, Rakhit, he had declined to take action as he had been transferred to Jessore and was going to make over charge and proceed to Jessore on the day on which the application was made to him. Therefore, if the ruling of the Additional Special Judge was correct, there was, at the time the application was made to him, no Court capable of dealing with the application for sanction.
8. In my judgment, the judgment of the Additional Special Judge should not be upheld, The words of the section show cause Court. Mr. Dobbin left the country on lave; application was made to the Officiating Chief Judge of the Small Cause Court for sanction to prosecute the petitioner under Sections 209 and 210 of the Indian penal Code, The learned Chief Judge granted sanction. It was admitted that Mr. Dobbin could have granted sanction, but it was argued that, as he was absent, no other Judge of the Small Cause Court could do so. This argument the learned judges in the High Court rejected and held that the learned Chief Judge had jurisdiction to grant the sanction. It was, saving regard to the above-mentioned circumstances, that the learned Judges laid, an application can only be made to the superior Court after sanction, has been given or refused by the subordinate Court.
9. In my judgment, the learned Judges did not intend to decide that, under no circumstances could the superior Court grant sanction, unless the sanction had been given or refused by the subordinate Court.
10. In my judgment, the present case, the facts of which show that the subordinate Court had ceased to exist at the time the application was made to the Additional Special Judge by reason of Mr. R.N. Rakhit's transfer to Jessore, and that no application could then be made to the subordinate Court, is not covered by the case cited.
11. The Rule is made absolute to the extent already mentioned and the matter is remitted to the Additional Special Judge so that he may dispose of the application on its merits.
12. I agree that this Rule must be made absolute and the matter remitted to the Special Judge for consideration of the application for sanction on the merits.
13. Section 195, Sub-section (l), Clauses (6) and (c), contemplate the grant of sanction by the Court where the alleged offence has been committed, or by some other Court to which such Court is subordinate. If we strictly interpret the words of the Statute, it follows that prima facie the subordinate and superior Courts have concurrent jurisdiction in this respect. It has been decided, however, is a long series of cases that as a general rule, the application for sanction should be made to the Court before which the alleged offense was committed, and that, in the absence of exceptional circumstances, the superior Court should not allow its authority to be invoked in the first instance. This principle was enunciated so far bask as 1872, with respect to Section 169 of the Criminal Procedure Code (Act XXV of 1861), in the case of Sheebpershad Chwkerbutty, In re 17 W.R. 46 Cr. where Markby, J, observed that, although either the High Court or the subordinate Court before which the case was heard was empowered to authorise the prosecution for perjury, it was undesirable for the superior Court to entertain such an application in the first instance. Not that the superior Court had no power to do so; it has full discretion in the matter; but, except under very peculiar circumstances, the application should be made, in the first instance at any rate, to the subordinate Court. The same view was maintained with regard to Section 469 of the Criminal Procedure Code (Act X) of 1872, in the case of Barkat-ullah-Khan v. Rennie 1 A. 17 (F.B.) : 1 Ind. Dec. (N.S.) 11 where Turner, C.J., observed that the Legislature had not Confined the power of sanction to the Court before which the offence had been committed, but had vested that Court and any other Court to which that Court was subordinate, with independent powers of sanction. In this view, it was ruled that although, in practice, a superior Court should refuse to entertain the application until it was shown that an application had been made to the subordinate Court and had been refused by that Court, it could not be maintains as an inflexible rule of law that sanction could only be given by a superior Court, when the case in which the offence was committed name before it in appeal, To accede to such a proposition would be to import into the Statute a condition neither explicitly formulated there nor warranted by any other provision. The same view was taken with regard to Section 195 of the Criminal Procedure Code (Act V) of 1898, in the case of palaniappa Chetti v. Annamalai Chetti 27 M. 223 : 2 Weir 208 and 577 : 14 M.L.J. 74, in which it ruled that under Clauses (b) and (c) of the Sub-section (1), the sanction might be accorded in the first instance by the Court to which the Court in which the offence was committed was subordinate, even though no application for sanction had been made to the latter Court. The decision in Emperor v. Molla Fuzla Karim 33 C. 193 : 3 Cr. L.J. 365 does not militate against the construction which has thus been uniformly placed on the provisions of the Criminal Procedure Code relevant to this matter. The observation in the judgment in that case, that an application can only be made to the superior Court after sanction has been given or refused by the subordinate Court,' cannot be isolated from the context and cannot be treated as the formulation of a new rule of law restrictive of the provisions of the Statute. In the case before us, as the Court of the Revenue Officer in which the alleged offense was committed was abolished, when the special work for which it had been created came to an end, the application under Section 195 could not possibly be made in that Court. This fact constituted, in my opinion, such an exceptional circumstance as to justify the exercise of jurisdiction by the superior Court in the first instance. However expedient it might have been, that the application for sanction should, in the first place, be made to the Court in which the alleged offence was committed, if that Court had continued to exist, the adoption of that source was rendered impossible by its abolition. Consequently, it become incumbent on the superior Court to deal with the original application which would otherwise have been presented to the primary Court in the first instance.