Aiyasami Iyer vs Aiyasami Iyer

Abdur Rahim, J.—The petitioner, who is a Pleader practising in the District Munsif''s Court of Shiyali and senior member of the profession,

was party to a suit in which he was the plaintiff. He obtained a decree and the defendants deposited the amount of costs in Court. The petitioner

for the purpose of drawing this amount from Court made an affidavit, and in that affidavit he stated that the property which he gave as security

according to the order of the Court was subject only to one encumbrance and was not subject to a mortgage in favour of one Vaidynatha Aiyar.

This apparently was not correct. When an amin was deputed to enquire whether the mortgage in favour of Vaidyanatha Aiyar did actually subsist,

the petitioner admitted that he had made a mistake and that, as a matter of fact, there was this encumbrance also on the property. The learned

District Munsif who heard the application made by one of the unsuccessful defendants in the suit for sanction for the prosecution of the Pleader,

considered all the circumstances and came to the conclusion that it was not a proper case for prosecution. Having regard to the position and

character of the petitioner and the nature of the statement made by him and the fact that, when the amin was sent, he admitted the mistake the

District Munsif was of opinion that it was not a proper case for prosecution for making a false declaration u/s 199 of the Indian Penal Code. The

learned District Judge has reversed that order, holding that since there was a prima facie case of making a false statement, all the other

circumstances must be left for consideration at the trial. This, in my opinion, is a wrong view of the law. When sanction is asked for, for the

prosecution of a person for making a false statement in the course of a judicial proceeding or for any other offence of a like nature, it is the duty of

the Court to which the application is made, not only to see that there is a prima facie ease, but also to decide whether it is a fit case for prosecution

in the interests of justice. The Court ought not to forget that statements which in fact are false are often made by men through the merest

inadvertence or slip of memory. It is, no doubt, true that when a person makes an affidavit, he ought to be extremely careful to see that every

statement that is made there, is strictly accurate. At the same time Section 199, Indian Penal Code, contemplates that a statement, in order to

come within the purview of the section, must be one which is either false to the defendant''s knowledge or which he ought to have known to be

false or could not have believed to be true. Here there were facts upon which the District Munsif was justified in saying that although the statement

in question was made in a rather reckless manner, it was not a fit case for prosecution. The position and character of the petitioner, the fact that the

property even with both the mortgages was sufficient security and that other circumstances in which the statement was made, were matters which

the District Munsif was entitled to take into consideration in coming to a conclusion whether there ought to be a prosecution or not. I am of opinion

that the order of the learned District Judge granting sanction should be set aside.

Napier, J.

I agree. The learned District Judge in his order states as follows:

""His pleas and his previous character are matters which would be more relevantly taken into consideration by the trying Court."" This statement

of the law I consider to be incorrect. Section 195 of the Criminal Procedure Code states that no Court should take cognizance of certain offences

except with the previous sanction of Court, but does not state on what materials that sanction is to be based. Speaking for myself, I have always

held that the view largely prevailing in this Court that the important matter to which Court should direct its attention is whether there was a prima

facie case, is incorrect. To my mind, that is not the function of the Court granting sanction. That is the function of the Magistrate who hears the

case. It is the function of the Court which grants sanction to consider the whole of the circumstances of the case and decide whether it is in the

interests of justice and purity of judicial proceedings, that the person who has made the statement should be prosecuted. The Munsif has come to

the conclusion that this statement was made not deliberately and intentionally to gain a benefit, but, as he puts it, in a reckless and haphazard

manner that makes the petitioner liable to blame of a reprehensible character. That seems to be exactly the right manner in which to view the action

of the Vakil in this case. It is further pointed out by the Munsif that he is a gentleman of respectability and position and he obviously thinks that

although he has been grossly reckless and may shave brought himself within the mischief of Section 199, Indian Penal Code, he cannot have

intended deliberately to mislead. That being so, I think the District Munsif very properly refused sanction and I would set aside the order of the

District Judge.