Nataraja Pillai vs Rengasami Pillai and Others

Odgers, J.—This is an application to set aside the order of the Additional District Magistrate of Tanjore wherein he revoked the sanction to

prosecute the respondents granted by the Sub-Divisional Magistrate of Tanjore. The application is u/s 195 of the Criminal Procedure Code which

has been amended by Act XVIII of 1923. The old section allowed application to be made by a private party. This has now been abolished by the

amended section and no Court can take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the

complaint in writing of the public servant concerned, etc., or of the Court when such offence is alleged to have been committed in, or in relation to,

any proceeding in that Court. Mr. A. V. Visvanatha Sastriar, who appears for the respondents, takes more than one preliminary objection. We

have only heard him so far on one, and that is the question whether sanction proceedings can now be entertained under the Criminal Procedure

Code as amended. Mr. Visvanatha Sastriar maintains that this is not an appeal u/s 195 Criminal Procedure Code and that the amendment of that

section has effected an alteration in procedure. Now, it is settled law that new procedure affects bygone transactions and alterations in procedure

are always retrospective. Gardner v. Lucas (1878) LR 3 AC 582. It is conceded by Mr. K. S. Jayarama Iyer for the petitioner that if this is a

matter of procedure, the contention of the other side is correct. Mr. Jayarama Iyer however contends that there is a right of appeal given u/s 195

Criminal Procedure Code itself and that this section is self-contained and independent of, or additional to, any other right of appeal given by the

Code. If this is an appeal, then the right of appeal inhered in the parties at the time the original application for sanction was made, which was on or

before the 8th December 1921, for it is clear law that you cannot deprive a suitor of a right in a pending action of an appeal to a superior tribunal

which belonged to him as of right. Colonial Sugar Refining Company v. Irving (1905) AC 369. So that, if this is an appeal, we can hear the

petition; if this is not an appeal, but a mere matter of procedure, then, alterations in procedure being retrospective, we are not at liberty to entertain

it. That this is not an appeal under the ordinary appellate chapters of the Code--Chapters 31 and 32- is clear from the ruling in Bapu v. Bapu 22

MLJ 419 (F.B.). That was a decision of the Full Bench where the Court said they were not prepared to dissent from the conclusion arrived at by

the Full Bench in Muthuswami Mudaly v. Veeri Chetti 17 MLJ 266 (F B.). They added "" we think however, the power conferred upon this Court

by Section 195 (6) Criminal Procedure Code is not a part of the appellate and revisional jurisdiction of this Court conferred by chapters 31 and 32

of the Code of Criminal Procedure. It is a special power conferred by Section 195 (6) Criminal Procedure Code."" They decided that when the

judges are equally divided on a question u/s 195 the matter is governed by Section 36 of the Letters Patent and not by Section 429 or 439 of the

Criminal Procedure Code. The bearing of this case on the case in Muthuswami Mudaly v. Veeri Chetti 17 MLJ 266 (FB) will be considered in a

moment. Meantime it is instructive to refer to the opinions of the referring judges because, in the first instance, there were differing judgments and

also an order of reference to the Full Bench, in all of which the matter was considered in some detail. Sundara Iyer, J., in his first opinion held that

Clauses 6 and 7 of Section 195 Criminal Procedure Code do not provide on terms that an appeal lies from an order granting or refusing sanction,

nor does chapter 31, relating to appeals, provide that an appeal shall lie from such an order, that the power of the superior Court under those

clauses is similar to what it possesses in appeals and that the same may be said of the powers of the High Court in proceedings in revision. As to

the language of Section 429, Criminal Procedure Code, the learned Judge was of opinion that the language referring to the powers of a Court of

appeal u/s 195, Criminal Procedure Code was employed "" only because it is the Court to which an appeal lies from the decisions of the Court

granting the sanction that has got power to revoke a sanction or to give a sanction refused by an inferior Court. "" Spencer, J. also held that there

was no rule of law which subjects applications made under the special provisions of Section 195, Cr. P. Code to the periods of limitation

contained in the Limitation Act. The learned Judges therefore in their first judgments both concurred that an application u/s 195 (6), Cr. P. Code

cannot strictly be regarded as an appeal. To come to the Full Bench decision in Muthuswami Mudali v. Veeri Chetti 17 MLJ 266 (FB) , that case

decided, that the right of appeal conferred by Section 195 (6), Cr. P. Code, as read with Sub-clause 7, is not restricted to a right of appeal to the

appellate Court to which the Court of first instance is immediately subordinate. It also decided that a revocation of a sanction is a refusal of a

sanction in the same way as an order confirming a grant of a sanction is giving of a sanction for the purposes of the section. Muthuswami Mudali v.

Veeri Chetti 17 MLJ 266 (FB) followed Palaniappa Chetti v. Annamali Chetti 14 MLJ 74, where it was held '' that under Sub-section (6) a

petition by way of appeal lies to the High Court in every case in which a civil or criminal Court subordinate to it within the meaning of Sub-section

7 (a) gives or refuses a sanction whether in respect of an offence committed before it or in respect of one committed before a Court subordinate to

it, and in the latter case, whether it gives a sanction refused by the subordinate Court or revokes a sanction accorded by such Court. In all these

three cases it is to be noted that the main question before the Court was, put shortly, whether there was one right of appeal or more than one, and

what Palaniappa Chetti v. Annamali Chetti 14 MLJ 74 and Muthuncami Mudali v. Veeri Chetti 17 MLJ 266 (FB) decided is that in such a case

there is more than one right of appeal. This is the point on which Bapu v. Bapu 22 MLJ 419 (FB) confirmed Muthuswami Mudaly v. Veeri Chetti

17 MLJ 266 (FB). As stated above Bapu v. Bapu 22 MLJ 419 (FB) went further and held that the power conferred by Section 195 (6), Cr. P.

Code is not part of the appellate and revisional jurisdiction conferred by Chapters 31 and 32, Cr. P. Code. Section 404, Cr. P. Code says that

no appeal shall lie from any judgment or order except as provided for by this Code. "" It is therefore necessary in my opinion to find a distinct and

definite right of appeal given by Section 195, Cr. P. Code itself before it can be assumed that any such right of appeal exists. Now, Sub-section 6

says that "" any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is

subordinate, etc. "" The wording itself seems to point to an original refusal or an original grant by the High Court as a superior authority itself.

Sadasiva Aiyar, J. in Panchalu Reddi v. Chinna Venkata Reddi 14 MLJ 74 says that the powers given by Section 195 (6) of the Cr. P. Code to

the superior "" authority "" is a specific statutory power. Though it is usual to call the application to the superior authority a petition of appeal, the

learned Judge doubted whether it could be called an appeal. And in Subbasari v. Emperor ILR(1921) M 47 the same learned Judge was inclined

to hold that the application to the appellate Court to revoke or grant a sanction granted or refused is not an appeal, but an original application. In

The Public Prosecutor Vs. Raver Unithiri, Marvather Vittil and Ambumarar, it was said that a confirmation of sanction by the appellate Court is

equivalent to a fresh grant of sanction by that Court. No doubt, Section 439, Cr. P. Code in speaking of the High Court''s power of revision,

confers on the Court any of the powers conferred on a Court of Appeal by Sections 195, etc. But I am of opinion, which I think is supported by

authority quoted above, that the "" Court of Appeal "" referred to is only a designation of the superior authority to which application for revocation or

grant is to be made. Further, it will be noted that Section 429, Cr. P. C. which provides for a difference of opinion between Judges composing the

Court of appeal, is not confined to appeals under Chapter 31, whereas Section 428 (1), Cr. P. Code deals with appeals under "" this Chapter.

This distinction is important in relation to the decision in Bapu v. Bapu 22 MLJ 416 (FB) which held that Clause 36 of the Letters Patent applied

and not Section 429, Cr. P. C. on a difference of opinion between the Judges composing the superior Court to which application is made u/s 195

(6), Cr. P. Code. Further, I am of opinion that the alterations made by the amendments to the Code are merely alterations of procedure.

Prosecuions for various offences committed in relation to proceedings before public servants or Courts are still punishable, but those proceedings

are to be initiated on complaints either of the public servants or the Courts concerned themselves and not on the application for sanction to

prosecute by a private party. The public servant or Court will still generally be set in motion by the party aggrieved though of course it will be open

to either to take proceedings suo motu.

For these reasons I am of opinion that no appeal is provided for in the Code u/s 195, Cr. P. Code and further that the amendments made affect

only procedure. We have therefore since the amendment no power to entertain this petition, which must be dismissed.

Wallace, J.

This is a petition to set aside an order of the Additional District Magistrate, Tanjore, revoking the sanction granted by the Sub-Divisional

Magistrate, Tanjore, for the prosecution of the respondents for an offence u/s 188, Indian Penal Code.

A preliminary legal point is raised by the respondents, namely that, since the new amended Cr. P. Code has abolished such sanctions and since

that is now the law in force in this case, this petition does not lie. The petitioner rejoins that the right to move this Court for sanction is of the nature

of a substantive right, such as a right of appeal, which cannot be taken away by any alteration of the processual law. I think the respondent''s

contention must be upheld for two reasons: first, that there is no substantive right now taken away; and the right conferred by the old Section 195

(6) of the Cr. P. Code is not a right in the nature of a right of appeal; and secondly, to comply with the petitioner''s request and grant a sanction

now, would be futile proceeding since no Court can now take cognizance of complaints under any such sanction.

To take the first point the substantive right which the petitioner possesses is the right of setting a criminal prosecution in train against a party who

has committed a breach of an order u/s 144, Cr. P. Code. The necessary preliminary under the old Section 195 (1) to such a prosecution was the

obtaining by the party of a sanction or the prosecution of a complaint by a public servant named therein. Now the method of proceeding by first

obtaining a sanction has been abolished. Clearly the change is a change in the processual law and does not deprive the petitioner of his substantive

right to set the criminal law in motion. The petitioner still has a method under the new procedure for setting the law in motion, since he may apply to

the public servant, or any authority to whom that public servant is subordinate to present a complaint.

Such an application as is now before us is not defined anywhere in the old Criminal Procedure Code as an appeal, nor do any provisions of

Chapter 31 extend to it. The petitioner points out that u/s 439, old Criminal Procedure Code, it was laid down that the High Court may in

proceeding under that section exercise any of the rights conferred on "" a Court of appeal "" by Sections 195, etc., which seems to imply that

Section 195 confers some powers of the nature of appellate powers on a superior Court, and the omission of Section 195 in the new Section 439

emphasises the fact that the phrase "" Court of appeal "" as hitherto used had reference to the powers conferred on Courts in the matter of sanctions

now abolished. However the question whether, in taking proceedings under the old Section 195 (6), this Court is a Court of appeal has been fully

discussed in the Full Bench case of this Court reported in Bapu v. Bapu 22 MLJ 416 (FB), which lays down that the power exercised under the

old Section 195 (6) is neither appellate nor revisional power, but a special power. The previous rulings of this Court which used the words ''

appeal '' and '' appellate Court'' with reference to these powers, for example, In re Paree Kunhammed ILR (1902) M 116, In re Muthu Krishna

Pillai ILR(1902) M 190, Palaniappa Chetti v. Annamalai Chetti 14 MLJ 74, Muthuswami Mudali v. Veeri Chetti 17 MLJ 266 (FB) Jamna Doss

v. Sabapathy Chetty 21 MLJ 1074 must therefore be taken to have Been using these words loosely and not with strict technical accuracy. Section

439 also indicates plainly enough that the powers of this Court as a Court of appeal under the old Section 195 (6) are to be found in that section

alone and are limited to the terms of that section. It is significant that there was no other section which laid down that the powers of the High Court

under the old Section 195 (6) Criminal Procedure Code, consisted of any of the powers which were under the old Sections 423, 426, 427 and

428, the other sections quoted in Section 439, conferred on it. Another significant fact is that no where was any period of limitation fixed for

petitions u/s 195 (6), whereas a regular right of appeal has always a defined period fixed within which it must be exercised. Old Section 195 (6) to

my mind, indicates that, in a case like the present, the power of the Court as a "" Court of appeal,"" to adopt the phraseology of old Section 439 is

limited to granting a sanction reused by the lower appellate Court, which sanction is a fresh sanction and is not a revival or resuscitation of the

original sanction granted by the original Court which had been revoked by the lower appellate Court. No reported case controverting this view has

been quoted to us. There is no reported case in this Presidency, so far as I know, which e. g., lays down that when a sanction has been granted

and revoked and again granted, the six months are to date from the date of the original grant as if that had been resuscitated. The case reported in

In re Muthu Krishna Pillai ILR(1902) M 190 is not in point, as there the original sanction had never been interfered with.

The same result will be obtained by considering the matter from another point of view. Assuming, without deciding, petitioner''s contention that,

for the purposes of a petition under old Section 195 (6) the District Magistrate as a public servant is within the meaning of Section 195 (1)

subordinate to this Court, it is clear that petitioner might have applied in the first instance in this Court for the sanction he now seeks. It follows that

his right to move this Court does not depend on there being in existence an order against him against which he can "" appeal."" Such right as was

given him by the section was a right to apply to this Court for a sanction, irrespective of what had happened to similar applications in any Court

subordinate to this Court.

For the above reasons I hold that petitioner''s right to apply for a sanction is purely a matter of processual law and not a right of the nature of a

right of appeal.

As to the 2nd point, it rests on petitioner''s contention that the grant of sanction by this Court will restore the sanction of the original Court so as

to enable the prosecution already instituted on that sanction to continue from where it left off when the sanction was revoked; that is, in his view,

the revocation of sanction has not destroyed the sanction but merely holds it in abeyance if and while an appeal is pending. The petitioner goes

further and contends that, since the Criminal Procedure Code does not contemplate a case once begun ending merely because a requisite sanction

had not been obtained or because the sanction on which it was instituted has been revoked, no subsequent discovery of absence of sanction or

revocation of sanction can interfere with its jurisdiction. Such a position, I must hold to be untenable, since it would imply that the right to have a

sanction revoked would be quite futile, if a complaint based on a sanction had already been put in, since on this theory any subsequent revocation

would not affect the jurisdiction of the Court to proceed with the trial of the complaint already filed. The petitioner appeals to Section 537 of the

Criminal Procedure Code for his position but it does not really help him since that section has no application to cases under trial when it is

discovered that no sanction exists or that the sanction given has been revoked. Obviously the Court has power to discharge or acquit an accused

person of a charge which requires previous sanction if, in the course of the trial and before judgment is pronounced it is brought to its notice that no

sanction has been obtained, and I can see no difference between such a case and a case where the sanction on which the trial is proceeding has

been set aside during the trial. Revocation of a sanction must have some legal effect and can only imply, to my mind that the prosecution started

under the sanction can proceed no further and has come to an end.

For reasons already given, I have held that the petitioner can now ask, and is now asking, this Court only to grant a fresh sanction and that this

is not a petition of appeal against, or a petition to revise, any order of the lower Court and for reasons now given I hold that the original sanction

given has, by the revocation, been swept away for ever and cannot be revived by any order on this petition.

The new Criminal Procedure Code has abolished the right to present such a petition and this petition must be heard under the existing

processual law. That law now forbids any prosecution being instituted merely upon a sanction granted to a private party. It follows then that, even

if this Court does grant the petitioner the sanction that he seeks, such a sanction would be of no avail for instituting any prosecution; and this is an

additional reason for refusing to grant the petitioner the sanction which he seeks, since to grant it would be a merely empty formal proceeding of no

use whatever to the petitioner.

As I have already pointed out, the petitioner is not left without a remedy, since it is still open to him to move the authorities to whom the

Additional District Magistrate is subordinate within the meaning of Section 195 (1) to present a complaint on which the respondents may be

prosecuted for their disobedience of the order passed by the Original public servant.

I therefore agree that the petitioner''s petition is not maintainable and must be dismissed.