Sesha Aiyar vs The Public Prosecutor and Another

Krishnan, J.—This is an application to revoke a sanction given u/s 195 of the Criminal Procedure Code, Act V of 1898, as it stood before

the recent amendment, to prosecute the petitioner under Sections 467 and 109, Indian Penal Code. A preliminary objection is raised by the Public

Prosecutor that this application does not lie as under the Code now in force, there is no provision for any sanction to be produced, for a Court to

take cognisance of any offence. The Amending Act XVIII of 1923, which came into force in September, 1923, has abolished the procedure of

obtaining sanction and has substituted for it a complaint in writing by the Court itself, or by the Court to which that Court is subordinate. The

question we have to decide is what the effect of this amendment is, as to a sanction already granted before the amendment came into force. u/s

195 of the Code, as it stood before amendment, it is conceded that according to the rulings of this High Court the petitioner could bring to our

notice the sanction that had been given against him and pray that it might be revoked. Is that power now gone or is it still subsisting? The question

was considered at length in a judgment recently delivered by another Bench of this Court, in Crl. M.P. No. 374 of 1923, is which an order of the

lower Court; revoking sanction was sought to be set aside and sanction obtained from this Court. Tee learned Judges considered the nature of the

application u/s 195 to this Court and holding it was neither an appeal nor a petition under the revisional jurisdiction of this Court, following the

previous rulings of this Court, and that no private party had a vested right of appeal in the matter, which would be preserved in spite of the

amendment of the law, dismissed that application as incompetent. I respectfully agree with that view. It is however, argued by Dr. Swaminadhan

that that case is distinguishable from the present one, as there the application was to set aside the refusal of a sanction by the lower Court and for

the issue of a sanction; whereas here, the application is for the revocation of a sanction, already granted, which was being used against his client in

his prosecution. I do not think this is a valid distinction. If a party had under the old law a right to get a sanction revoked, it would have to be held

that a party who had got a sanction, which had been wrongly revoked, or who had been refused a sanction, which ought to have been given to

him, had equally well, a right to get a sanction from the superior Court. If the one is a right, the other was equally a right; but, in my view, neither of

them is a right. Under the old section, power was given to the superior Court to grant or revoke a sanction, refused or granted by a Subordinate

Court. What a party did by his application was simply to bring the matter to the notice of the superior Court. That Court could, if it thought fit,

have even acted suo motu, u/s 6 of the General Clauses Act, it cannot therefore be said that any party had any vested right in the matter unaffected

by the Repealing Act.

The production of a sanction for the cognisance of certain specified offences was purely a matter of procedure: it was pre-requisite for certain

prosecutions. Now that the law requiring sanction is repealed, the procedure prescribed by the new Act must be adopted for such prosecutions

launched after that Act has come into force. I hold, for the reasons stated above, that the present application made under the provisions of Section

195, now repealed, does not lie and I would dismiss it.

Waller, J.

I agree.