Arunachalam Pillai vs Ponnuswami Pillai

Napier, J.—These are two petitions, one to revise an order of the District Magistrate of Trichinopoly of the 12th January 1918, the other to

revise the order of the Sessions Judge of Trichinopoly of the 1st March 1918. The order of the District Magistrate was made on appeal from an

order of the Stationary Sub-Magistrate of Trichinopoly refusing to sanction the prosecution of the present petitioner and another for an offence u/s

18 6, Indian Penal Code. The petitions were the result of an order of the Stationary Sub-Magistrate passed on the 8th May 1917 u/s 144,

Criminal Procedure Code, restraining this petitioner and others from taking the Pidari deity in procession through a lane claimed to be the private

property of the present counter petitioners. This order was alleged to have been violated and hence the petition for sanction.

The Stationary Sub-Magistrate declined to grant the sanction on two grounds, one, that the order should not have been passed and that,

therefore, disobedience cannot be considered to be an offence; the other, that the petition for sanction was the outcome of previously existing

spite. The present counter petitioner appealed to the District Magistrate of Trichinopoly, who decided that, the order having been passed, rightly or

wrongly, disobedience to it was an offence and granted the sanction."" This is one of the orders appealed against. The petitioner appealed from that

decision to the Sessions Judge, who passed the following order: ""The order appears to have been made by the District Magistrate as an

administrative officer, and I think, therefore, that no appeal lies to this Court. Petition is dismissed."" This is the other order appealed against.

The petitioner before us first argued that the order of the District Magistrate granting sanction against him was passed by him as a public servant,

that no appeal lay to the Sessions Judge and that, therefore, he was entitled to come to the High Court. On this petition it is, in our opinion, enough

to say that if the order was passed by the District Magistrate administratively, the High Court has no appellate or revisional power. We asked the

learned Vakil to invite our attention to any provision either in the Government of India Act or the Letters Patent, or in the Criminal Procedure Code

which makes a public servant qua such servant and not qua Court subordinate to the authority of the High Court as required by Section 195, Sub-

section 6, and he was unable to show us any. We, therefore, dismiss this petition.

On the second petition by way of what is, for convenience, called an appeal from the order of the Sessions Judge, the petitioner took up the

opposite position, namely, that the order was one, of a Court and that, therefore, the Sessions Judge was in error in declining to exercise his

jurisdiction. We have, therefore) to decide whether the (appeal) provisions in Section 195, Sub-section (7), Criminal Procedure Code, apply to

this order. We are clear that the Stationary Sub-Magistrate, in passing this order refusing sanction, was acting judicially, for the original order

which, it was alleged, was disobeyed was an order passed u/s 144, Criminal Procedure Code. These orders have always been treated as judicial

orders and we cannot separate the authority issuing the order from the authority granting sanction for disobedience of it.

But the more difficult question is whether, on the language of Section 195, Criminal Procedure Code, even though the order was passed by a

Court, the ""appeal"" lies to another Court. Section 195, Sub-section (1), deals with three classes of offences. The first group are Sections 172 to

188 of the Indian Penal Code, which are classed in Chapter X of the Code under the heading ""of contempts of the lawful authority of public

servants;"" the second group refers to Section 193 and others, which are classed in the Code under the beading ""of false evidence and offences

against public justice""; and the third group contains the sections in Chapter XVIII of the Code and classed of offences relating to documents and to

trade and property marks."" With regard to the first group Section 195, Criminal Procedure Code, provides that no Court shall take cognizance of

any such offence except with the previous sanction, or on the complaint, of the public servant or of some public servant to whom he is subordinate.

With regard to the second group, the provision is that no Court shall take cognizance of any such offence when such offence is committed in or in

relation to any proceeding in any Court, except with the previous ""sanction, or on the complaint, of such Court, etc. With reference to the third

group it is provided that no Court shall take cognizance of any such offence 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, etc. With reference to the second and third groups, the section provides that the term ""Court"" means Civil, Revenue or Criminal

Court, but not a Registrar. The appeal in all cases is provided for by Sub-section 6: Any sanction given or refused may be revoked or granted by

any authority to which the authority giving or refusing it is subordinate."" Then subsection 7 provides: ""for the purposes of this section every Court

shall be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie."" The question is whether the word

Court"" in Sub-section 7 refers to Court mentioned in Sub-section (1), Clauses (6) and (c), only, or whether it applies also to order made by a

public servant as a Court under Sub-section (1), Clause (a). The Sessions Judge took the former view, following the decision of this Court

reported as Sankaram Aiyar v. Sakkarappi Mudaliar 2 Weir 155. That decision is, however, no authority for his view, as the High Court held that

the order was not one of a Court. It is, of course, clear that the offences grouped in Clause (a) include disobedience of orders of Courts, such as

contempts of summonses issued by Courts (section 172, Indian Penal Code), refusal to produce documents before Courts (section 175), refusal

to take an oath or affirmation before a Court (section 178), giving false information to Court (section 181), obstructing sale of property offered for

sale by the lawful authority of the Court (sec tion 184), and disobeying a direction to abstain from a certain act promulgated by a Court u/s 188,

which is the present case. There can be no doubt that the various summonses and orders referred to in those sections when issued by a Magistrate

or a Judge are issued judicially, and as pointed out above, it surely must follow from that that the sanction to prosecute for disobedience of such

summons or order must be issued by the same authority, namely, line Court.

But this still leaves the other question open, namely, whether sub Section 7 applies to such sanction. I am of opinion that the word ''Court'' in

Sub-section 7 is not confined to Clauses (b) and (c). The Legislature must have been aware that offences against the authority of the Courts were

covered by Chapter X of the Indian Penal Code and there is, of course, no reason why any difference should be made with regard to appeals

between offences against the lawful authority of Courts and offences against public justice in relation to proceedings in Courts. The word ''public

servant'' was obviously used in Clause (a) because it is used in the Penal Code throughout the provisions in Chapter X and ''public servant'' is

defined in Section 21 of the Code as including Judges and Magistrates. Sub-section 7 is, I think enacted for the purpose of explaining what is

subordination within the meaning of Sub-section 6, where the authority giving or refusing sanction is a Court, and does not purport to confine its

operation to Clauses (6) and (c) of Sub-section (1), nor do I think that the Legislature bad that intention. It seems to me that the word ''Court'' was

used in Clauses (b) and (c) because it was intended to limit the operation of those clauses to proceedings in relation to Courts, thereby constituting

a narrower class than is dealt with in Clause (a), and I see no reason why, because a narrower class of cases, confined to Courts only is provided

for in those two clauses, the word ''Court'' in sub Section 7 should be confined to those two groups and not read as applicable to the wider group

in Clause (a), which applies to both Courts and other public servants, both of whom are clearly covered by the word ''authority'' in subsection 6.

In the result I hold that where the sanction is given with reference to an offence against a Court, the appeal is governed by Sub-section 7. The

order of the Sessions Judge is set aside and he is directed to take the petition on his file and dispose of it according to law.

Sadasiva Aiyar, J.

I agree entirely. It is not essential for the decision of this case to express an opinion on the question whether the particular order of the Sub-

Magistrate mentioned in Criminal Revision Case No. 136 of 1903 reported as Sankaram Aiyar v. Sakkarappa Mudaliar 2 Weir 155 was rightly

held by this Court on the facts of that case to have been passed by that public servant, not as a Criminal Court but as a public servant who was not

a Court. It is, however, necessary to guard myself from subscribing to the opinion suggested by a sentence in that decision, that opinion being that

a Sub-Magistrate would act as'' a Court only when he grants sanction for offences mentioned in Section 195, Clauses (b) and (c), that he could

never act as a Court when he grants sanction for any of the offences mentioned in Clause (a) and that therefore Sub-section (7) could never apply

to a sanction given by a Sub-Magistrate for such an offence.