1. The first of these Kales was granted at the instance of Baldeo Misser calling upon the Deputy Inspector-General of Police, C.I.D., Bengal, to show cause why an order of the 4th October 1923 of Mr. Moudad Rahman, one of the Judges of the Calcutta Court of Small Causes, granting sanction to the Deputy Inspector-General of Police, C.I.D., Bengal, to prosecute Baldeo Misser under the provisions of Section 109 and Sections 209/109 of the Indian Penal Code, should not be set aside on the ground that the order of sanction granted by the learned Judge of the Calcutta Court of Small Causes is not warranted by the provisions of the Code of Criminal Procedure and is illegal.
2. The second Rule was granted on exactly similar grounds at, the instance of Harendra Nath Mitra.
3. The material facts are as follows. On the 3rd January 1922 Harendra Nath Mitra instituted a suit in the Calcutta Court of Small Causes against Ramrup Lohar and Baldeo Misser. Ramrup stated that the claim was false, and that the suit was instituted as the result of a conspiracy between the second defendant, Baldeo Misser, and the plaintiff. He complained to the Criminal Investigation Department who took up the matter, but in the meantime the suit was compromised, between the plaintiff and Baldeo in the absence of Ramrup.
4. On the 11th September 1922 the Deputy Inspector-General of Police applied to the Judge presiding over the 7th Bench of the Calcutta Court of Small Causes for sanction to prosecute Harendra and Baldeo under the provisions of Section 209 and Sections 209/109 of the Indian Penal Code. After the lapse of over nine months, namely, in May 1923, the application was transferred to Mr. Moudad Rahman who had originally dealt with the suit, and on the 4th October 1923 the sanction, which is now attacked, was granted. By this time the amended Code of Criminal Procedure had come into operation, and as a result of the amendments introduced into Section 195 of that Code sanctions were abolished, and no Criminal Court can now take cognizance of the offence with which Harendra and Baldeo were charged except on the complaint in writing of the Court in which the offence is alleged to have been committed in the course of, or in relation to, any proceeding therein. It is conceded before us that Mr. Moudad Rahman, having regard to the amendment of the Code of Criminal Procedure, had no jurisdiction to make the order of the 4th October and that no Criminal Court could thereon take cognizance of the offence alleged. There is no doubt that when the application was originally made, namely on the 11th September 1922, it was a proper application and one upon which, but for the amendment of the Code of Criminal Procedure, Mr. Moudad Rahman could properly have given sanction, and that it was only the unfortunate delay which occurred in the Calcutta Court of Small Causes in disposing of the matter which rendered the application of no avail.
5. It is accordingly suggested that we should say that Mr. Moudad Rahman's order of the 4th October 1923, although valueless as a sanction by reason of the amendment of the Code of Criminal Procedure, is a good complaint within Section 195(b) or Section 476 of the Code of Criminal Procedure. I am not prepared to take this course. In a criminal case involving the liberty of the subject this does not seem to me a proper course to adopt. The Judge's order, as the law now stands, is not an order which he could make, and I do not think it is for a Criminal Appeal Court to take a course which would turn it into something which it is not to get over this difficulty which has occurred by reason of the alteration in the law. Then it has been suggested that we should send back the matter to the Judge with a direction that he should consider whether, upon the facts, he should make a complaint as provided by Section 476 of the Code of Criminal Procedure. This again I do not consider a proper course for this Court to adopt: for if we do this the Judge might take our order as an intimation to him as to the course he should adopt and act accordingly.
6. Finally it has been suggested that we should indicate, in any order that we make, that it is now open to the Judge to deal with the matter under Section 476, if an application is made to him, but I think this procedure involves the same difficulty as I have suggested in dealing with the last course suggested. And so far as both these courses are concerned, there is, I think, this additional difficulty that it involves giving a decision upon a question which does not directly arise and which may hereafter come up for judicial determination by this Court.
7. The only order which I would make is to make the Rules absolute upon the grounds upon which they were granted.
8. I agree to the extent that the order having been passed under an obsolete provision of law was bad and must be set aside. I desire to add that the delay in dealing with this application in the Court of Small Causes was lamentable.