Ramdhari Ahir and another vs King-Emperor

Sultan Ahmed, J.—This is an application against an order of the Sessions Judge of Saran, dated the 13th January, 1920, directing the prosecution of the petitioners u/s 476 of the Criminal Procedure Code, for an offence u/s 193 of the Indian Penal Code.

The circumstances under which this application has come to be made to this Court are as follows.

A certain decree was obtained in the Court of the Second Munsif of Chapra, against one Umrao Nonia. In execution of that decree notices under Order XXI,. Rule 22 and Order XXI, Rule 66, were issued. The sale proclamation was issued and the sale was held in execution of that decree.

An application was then filed by the son of Umrao Nonia named Ramdhan Nonia for the cancellation of all the execution proceedings and a declaration that the sale was a nullity because those execution procedings were against a dead man and were taken fraudulently. He therefore applied for sanction to prosecute the petitioners u/s 193, I. P.C. There were also other persons against whom the application for sanction was directed but we are not concerned with them in the present application.

The learned Munsif came to the conclusion that the application should not be granted and accordingly rejected it.

An appeal having been preferred against that order to the learned Sessions Judge u/s 195, Clause (6), the learned Judge refused the application u/s 195, but directed the prosecution of the petitioners u/s 476 of the Code of Criminal Procedure. Hence the present application to this Court.

Mr. Sen appearing on behalf of the petitioners has mainly contended that the Sessions Judge had no jurisdiction to pass the order which he has done after recording fresh evidence in the appeal u/s 195, Clause (6).

It appears that the only witness to prove Umrao Nonia''s death before the Munsif was Ramdhan Nonia who spoke to his father having been dead before the execution proceedings. In appeal the learned Judge on having been informed that the death of Umrao Nonia had been reported at the thana where there was an entry in the death register with respect to his death, called for the chowkidar who reported the death of Umrao Nonia to the thana, called for the register in which there was an entry with respect to his death, and also examined the Head Constable who had made that entry.

Mr. Sen contends that the learned Judge had no jurisdiction to lake this evidence. It is needless to consider in any detail the elaborate arguments which he has advanced in support of this proposition, because in my opinion, so far as the law on the point is concerned, it is determined by the authorities. The case reported in Budhu Lal Vs. Chattu Gope, is conclusive on the point. This decision has been followed in this Court, and it seems to me to be too late in the day to contend that a Sessions Judge in appeal exercising his powers u/s 195 (6), cannot take fresh evidence before granting sanction. In my opinion therefore the contention of Mr. Sen on this point fails.

It has been contended that on the facts of the present case the learned Sessions Judge was not justified in taking the fresh evidence; and he relies upon a decision of Mr. Justice Das in the case of Jagdeo Lal v. Ramlagan Singh (1919) 53 I. C. 826. It may be noted that that case was under Order XLI, Rule 27, and it was laid down there by Mr. Justice Das that Order XLI, Rule 27 of the Code of Civil Procedure, does not provide that in order to enable the appellate Court to pronounce judgment in favour of a particular party additional evidence may be admitted in appeal. It only provides that where it is impossible to pronounce judgment at all on the evidence, the Court might admit additional evidence.

Whatever may be the law under Order XLI, Rule 27, the Court exercising its powers as an appellate Court u/s 195 (6), has got ample powers to examine any number of witnesses, or to take any evidence it thinks fit in order to satisfy itself whether it should or should not grant sanction, or direct the prosecution of any person. It would be lamentable if the Court''s powers to satisfy itself before granting sanction were in the least curtailed.

What, as a matter of fact, has been done in this case is, that the appellate Court had the evidence of only one witness to prove Umrao''s death before it, and it therefore called further evidence to satisfy itself whether the statement made by the one witness in the case was acceptable or not. Whether that evidence is sufficient for the purpose of conviction of the accused or not is neither here nor there; it will be for the trial Court now to find out whether it will rely upon this evidence, act upon it, and convict the accused.

The sole question before the learned Sessions judge was whether the bar to the prosecution of the petitioners should be removed or not; and having satisfied himself as the learned Sessions Judge has done, I think this Court ought not to interfere with the order that he has passed.

Under these circumstances I discharge the rule and uphold the order of the learned Sessions Judge.

The learned Assistant Government Advocate has asked for costs. I decline to accede to his prayer.