Motha vs Moral Motha

In this case one Motha was said to have committed an offence punishable u/s 193, Indian Penal Code, in a case before a Magistrate, and the

Magistrate in giving sanction u/s 195, Criminal Procedure Code, for his prosecution, held an enquiry and recorded other evidence beside that in

the case before him to show-that there was prima facie ground for the prosecution. It is contended for the petitioner before us that the original case

before the Magistrate disclosed no foundation for the charge u/s 193 Indian Penal Code, and that, therefore, the Magistrate had no power to make

any enquiry or grant the sanction. In support of this argument reliance is placed on Zamindar of Sivagiri v. The Queen ILR 19 C. 816 and Abdul

Khadar v. Meera Saheb ILR 15 M., 224. We are unable to accede to the petitioner''s contention. The decision in, Zamindat of Sivagiri v. The

Queen ILR 19 C. 816 was based on the language of Section 468 of the Criminal Procedure Code then in force (Act X of 1872), and on certain

remark of Garth, C.J., in a case reported in In the Matter of the Petition of Kasi Chunder Mozumdar, I.L.E., 6 C, 440 under the same Code. In

neither of these cases did the learned Judges refer to the effect of Section 471 of the then Criminal Procedure Code, though the section appears to

beyond the record, to hold an enquiry and take fresh evedece for the pur-posu of determining whether or not sanction should be granted, even

though the record itself discloses no foundation for the charges alleged. Zamindar of Sivagiri v. The Queen ILR 19 C. 816 dissented from. Shashi

Kumar Dey v. Shashi Kumar Dey ILR 19 C. 345 followed Petition under Sections 435 and 439 of the Criminal Procedure Code praying the High

Court to revise the judgment of the Joint Magistrate of Tinnevelly in criminal appeal No. 45 of 1897, confirming the order of the Sub-Magistrate of

Tuticorn in criminal petition No. 230 of 1896 sanctioning the prosecution of the petitioner for making false statements in calender case No. 399 of

1896 on his file. have been mentioned in the course of the argument in the Madras Case. We find it difficult to reconcile the decisions with the

provisions of that section; but since those cases were decided, the provisions of the Code of Criminal Procedure upon the point under

consideration have been altered and enlarged. Section 468 of Act X of 1872 provided that "" a complaint of an offence against public justice:

described in certain sections of the Indian Penal Code "" when such offence is committed before or against a Civil or Criminal Court, shall not be

entertained in the criminal courts, except with the sanction of the court before or against which the offence was committed, or of some other court

to which such court is subordinate,"" Section 195 of Act X of 1882 provides that "" no court shall take cognizance of any offence punishable under

the same sections "" when such offence is committed in on in relation to any proceeding in any court, except with the previous sanction or on the

complaint of such court, or of some other Court to which such court is subordinate."" Then Section 476 of Act X of 1882 provides that "" when any

civil, criminal or revenue court is of opinion that there is ground for enquiring into any offence referred to in Section 195, and committed before it

or brought under its notice in the course of a judicial proceeding, such court after making any preliminary inquiry that may be necessary, may send

the case for inquiry or trial to the nearest Magistrate of the first class, and may send the accused in custody, or take sufficient security for his

appearance before such Magistrate, and may bind over any person to appear and give evidence on such enquiry or trial."" The powers conferred

by this section are much more extensive than those conferred by Section 471 of Act X of 1872, and we have no doubt but that it is now open to a

Magistrate, when a person is accused of having committed before him an offence punishable u/s 193 of the Indian Penal Code, to enquire into the

truth of the accusation, and, then, if it seems proper in the interests of public justice to give sanction for the prosecution, even though the original

record did not, on its face, disclose that the offence had been committed.

The words of the sections contain no limitation to an offence appearing on the face of the record, though nothing would have been easier than to

have expressed such limitation if it was intended to have effect. To admit the petitioner''s contention would be by an artificial rule to screen from

prosecution men who might have committed the grossest of offences against public justice and offences perfectly capable of being proved, merely

because owing to surprise, accident, oversight, or unavoidable circumstances, evidence of the offence was not, or could not be, produced before

the court at the same time that the offence was committed.

It is however, argued for the petitioner that the decision in 114, E., 6 M-, 29 was followed in 1b. 15 M., 225 . The former case is, no doubt,

referred to in the latter but without any reference to the fact that in the interval the law had been materially altered, nor was it necessary for the

decision of the 1.5 Madras case to follow the decision in 6 Madras.

The report in the 15 Madras Case is very brief and imperfect, but there the sanction was revoked, because the document "" had not been given

in evidence"" in the case, and, therefore, no offence under Sections 403 and 471, Indian Penal Code, had been committed.

The approval of the 6 Madras Case (if it was approved) was a mere obiter dictum, It was not necessary for the decision of the case then before

the Court, nor was it, in fact, the ground of that decision, and no reference was made to the change in the law made by Act Xof 1882.

We must, therefore, hold that that decision does not support the petitioner''s contention.

In the recent case of Shashi Kumar Dey v. Shashi Kumar Dey, the view we have taken was expressly maintained with reference to the language

of the present Criminal Procedure Code.

We dismiss the petition.