Patna High Court
Kusum Sao vs Janak Lal on 8 April, 1919
Equivalent citations: 52IND. CAS.219, AIR 1919 PATNA 362
JUDGMENT Das, J.
1. This application is directed against the order of the Additional Sessions Judge of Champaran granting sanction to the opposite party under Section 195 of the Code of Criminal Procedure to prosecute the petitioner under Section 211 of the Indian Penal Code. The facts and circumstances leading up to the application for sanction have been fully stated in the judgment of the Additional Sessions Judge and I do not propose to recapitulate them. It appears that in the first instance the District Magistrate of Champaran granted such sanction. Against this there was an appeal to the Court of Session, and a point was taken before it that the District Magistrate had no power to grant such sanction as the alleged offence was not committed in, or in relation to, any proceeding in that Court or in a Court subordinate to that Court. In view of that objection a petition was filed before the; Additional Sessions Judge, who heard the appeal for fresh sanction, and the Additional Sessions Judge, while holding that the District Magistrate had power to grant the sanction, acted on the fresh application made before him and himself granted fresh sanction.
2. At the very outset it was contended by Mr. G.C. Pal that the sanction granted by the District Magistrate was illegal. This was conceded by Mr. Hasan Imam who appeared on behalf of the opposite party, but he argued that the Additional Sessions Judge was competent to grant sanction and that he did in fact grant sanction for the prosecution of the petitioner under Section 211 of the Indian Penal Code. If the Court which heard the criminal case be subordinate to the Court of the Additional Sessions Judge, that is to say, if appeals from the former Court ordinarily lie to the Court of the Additional Sessions Judge, then undoubtedly the Additional Sessions Judge had power to grant sanction in the case. Mr. Pal has taken me through the various sections in the Code of Criminal Procedure for the purpose of making his point that a Magistrate having first class powers is not subordinate to an Additional Sessions Judge. It will be noticed, however, on reference to Section 195 of the Code of Criminal Procedure that the word deliberately used' by the Legislature is "Court" and not "Judge", and the point for my determination is not whether a Magistrate having first class powers is subordinate to the Additional Sessions Judge, but whether an appeal would ordinarily lie from a Court of a Magistrate having 1st class powers to a Court of an Additional Sessions Judge. Now it cannot be disputed that an appeal would ordinarily lie from a Court of such a Magistrate to the Court of Session. If an appeal would lie from the Court of such a Magistrate to the Court of Session, such appeal can, in my opinion, be disposed of only by the Court of Session. Therefore, the point for investigation narrows down to this: what is the Court of Session? In my opinion Section 409 makes it perfectly clear that a Court of Session consists of the Sessions Judge and the Additional Sessions Judge. I hold, therefore, that the Additional Sessions Judge was competent to grant sanction in a matter arising out of a trial before a Magistrate having first class powers.
3. The substantial question that has, however, been argued before me is that the Additional Sessions Judge did not act properly or with discretion in granting sanction in this case. The learned Judge says: "It has been laid do we in the case reported as Mr. Hume, Public Prosecutor of Calcutta v. Paresh Chandra Ghosh, An Attorney 22 Ind Cas. 324 : 19 C.W.N. 593 : 41 C. 734. 15 Cr.L.J. 51 that on an application for sanction the Court is not to try the guilt or innocence of the person for whose prosecution sanction is asked for, but is merely to consider whether the statutory bar imposed by Section 195, Criminal Procedure Code, should be removed and the law allowed to take its ordinary course. What is, however, required to be seen is that no one be permitted to use the penal law merely to satisfy his own private ends or personal spite." As in my experience the judgment of the great and distinguished Judges who heard that case has frequently been misunderstood and misapplied, I propose to deal with that case as shortly as I can, in order to show that that case was decided on its own facts and that the learned Judges did not intend to lay down any general proposition applicable, to all oases.
4. It is to be noted in the first place that there was in that case an enquiry as full and searching as the late Chief Justice of the Calcutta High Court knew how to make it, before the learned Judges made up their mind to remove the statutory bar imposed by Section 195. They held the enquiry themselves and allowed witnesses to be examined and cross examined before them. Not content with this, they placed the papers before Mr. Hume, the Public Prosecutor, "with complete confidence," as the Chief Justice says, "in his absolute integrity.
5. The passage which has been cited from the judgment of the learned Chief Justice by the learned Judge has in my experience been relied on by the Subordinate Courts as completely doing away with their responsibility in the matter, although the judgment of Mr. Justice Chaudhuri in the same case makes it perfectly clear that the power to grant sanction is evidently discretionary and has got to be exercised with caution and discernment. I accept the proposition of law enunciated in the passage cited, for it seems to me that if the sanctioning Court were to try the guilt or innocence of the person for whose prosecution sanction is asked, his subsequent trial would degenerate, to use the words of Mr. Justice Chaudhuri, into a mere formality;" but, on the other hand, if an application for sanction is regarded merely as a mechanical device for removal of the bar, the rule imposing a bar on prosecutions under certain sections specified in Section 195 of the Code of Criminal Procedure would appear to be a meaningless absurdity. I do not read the judgments delivered in that case as overruling, either expressly or by necessary implication, the series of oases that have been decided with reference to Section 195, except such as have gone too far and have laid down that an application for sanction must be conducted on the same lines as a criminal trial. When the late Chief Justice says that he prefers to take his stand upon the section itself he is, in my opinion, merely protesting against the extreme argument advanced by Mr. Norton, and not in any way throwing any doubt on the rules of prudence which have been enunciated by eminent Judges as rules to which any Court exercising its discretion would have recourse. The learned Chief Justice himself refers to one of such rules of prudence, which is not to be found in the section itself but which has been read into the section as of universal application by successive generations of eminent Judges. The truth appears to be that the Legislature has deliberately vests the sanctioning Court with absolute discretion in the matter, because it is impossible to lay down rules governing all cases and now circumstances may arise calling for application of new principles. In my judgment the case of Mr. Hume, Public Prosecutor of Calcutta v. Paresh Chandra Ghose, An Attorney 22 Ind. Cas. 324 : 19 C.W.N. 593 : 41 C. 734. 15 Cr.L.J. 51 has left the law exactly where it stood, and in dealing with an application for sanction the sanctioning Court must still proceed with caution and discernment and must be guided by two principles which, in my opinion, have been well established, namely, (1) whether there is a prima facie case against the person for whose prosecution sanction is asked, and (2) whether the real object of the applicant is not to satisfy his private ends or personal spite.
6. Now, how has the Additional Sessions Judge dealt with this matter? He says: "I am, therefore, not to see in this case as to whether the case brought by the appellant was true or false, but whether in view of the finding of the learned Deputy Magistrate who tried the case and found the principal point of the case to be false, sanction should be granted." He does not record his opinion that there is a prima facie case or, for the matter of that, any case against the petitioner. But he evidently thinks that the finding of the Deputy Magistrate was something upon which he could proceed. Now it seems to me that the Legislature has said as plainly as it knows how to say that the mere acquittal of the accused person is not sufficient for sanction for prosecution under Section 211 of the Indian Penal Code. If that were enough, there would be no meaning in imposing a bar on such prosecutions, and every acquittal would be followed by an application for sanction to prosecute, There must 'be something more than mere acquittal; there must be a reasonable belief in the mind of the sanctioning Court that there was no foundation whatever for the criminal charge; there must be a belief that in instituting criminal proceedings the petitioner acted knowingly without belief in the truth of the allegations made by him or recklessly without caring whether the allegations were true or false, The judgment of the trial Court in this case does not show that there was no foundation whatever for the criminal case against the persons who were acquitted.
7. I have read the judgment of the Magistrate and the record of the case with great care and, I am bound to say that they have left a suspicion in my mind as to whether the complainant had any chance whatever against the wealthy Zemindar of the place. The learned Magistrate was impressed by an entire absence of motive on the part of the accused and yet the same Magistrate records in his judgment that there is a long standing enmity between the petty shopkeepers of Madhuban Bazar and the Madhuban Babus. The question of motive is at all times a difficult matter for speculation, but in this case the finding of the Magistrate itself furnished a strong motive for the act complained against. The learned Magistrate very properly says that there being an old standing enmity between the complainant and the Madhuban Babus, the evidence of the prosecution witnesses must necessarily be received with caution. 1 agree with this and I would only add that the Additional Sessions Judge should have proceeded with the same caution in considering whether in this case, having regard to the admitted enmity between the parties, the statutory bar imposed by Section 195 should be removed.
8. The whole prosecution case, however, rested on a very slender point, namely, whether the complainant bad produced his books of account before the Police immediately after the alleged occurrence. As to this the prosecution case was that the complainant showed his account book to the junior Sub-Inspector who took away the book with him. With reference to this the learned Magistrate who tried the case says this: "The fact that witness Nabijan Chowkidar has said in his evidence that he (that is to say, the junior Sub-Inspector) carried a khata and some paper to the Thana after the close of the investigation on the day of occurrence, combined with the somewhat unusual manner suggestive of interpolation in which the non production of the current account book is recorded on page 11 of the case Diary, has given reason to suspect the veracity of the junior Sub-inspector," and then by a curious piece of reasoning he comes to the conclusion that the account book was not in fact produced before the Police. With reference to the junior Sub-Inspector, the learned Magistrate in another place says: "The conduct of the Police in this case has come in for a good deal of comment and it has been repeatedly insinuated that the Police have been conniving at the conduct of the accused from the beginning and that the report and Case Diary prepared by them are absolutely unreliable. There might be some apparent reason for such insinuation so far as certain acts of the junior Sub-Inspector are concerned, e. g., delay in despatching the Case Diary, writing above the printed head-line on page 11 regarding the non-production of the current account which gives rise to suspicion as being an interpolation and which really led the Sub-Divisional Officer to order the trial of the accused." It is also to be noted that the Sub-Divisional Officer held a local enquiry into the matter and he expressed his deliberate conviction that the account book was actually produced and was taken away by the Police Officer. He says in his report that the entire bazar appeared to be almost deserted and that the bazar people were afraid to tell the troth and did not want to come forward.
9. A perusal of the record of the criminal case has convinced me that in the unequal contest between a petty shopkeeper and the Madhuban Babus the latter had all their own way. I am unable to hold that there was no foundation whatever for the criminal case instituted by the complainant and I think that this matter should have been taken into consideration by the learned' Additional Sessions Judge in granting sanction for the prosecution of the petitioner.
10. In the next place, the Additional Sessions Judge does not exclude the possibility of a personal spite on the part of the Madhuban Babus. With reference to this he makes the following extraordinary observation: "In such a circumstance I think it would be serving a public interest that the matter should be threshed out and if the appellant be found guilty he may be punished so that such things may not occur in future. And if he be found innocent the Babus' men will take a lesson so as never more to assume an air of injured innocence. Under these circumstances I think the sanction granted' by the learned District Magistrate should stand." I am clearly of opinion that sanction should not be so light-heartedly given in order to enable the parties to have a trial of strength. I do not think that the liberty of any person should by any act of the Court be jeopardized so that the person who asks for sanction "may take a lesson."
11. In my opinion, the learned Additional Sessions Judge has failed to exercise his discretion as it should have been exercised and I would, therefore, revoke the sanction granted by him and by the District Magistrate and direct that no further proceedings be taken in the matter.