1. We are invited in this Rule to set aside an order of prosecution under Section 476, Criminal Procedure Code, on the ground that it has been made without jurisdiction. The circumstances under which the order in question has been made may be briefly recited.
2. It appears that, in the course of a rent suit, process was served upon the defendant. The peon learnt subsequently that there had been false personation in connection with the service. He reported the matter to the Court with the result that a fresh summons was issued and served on the real defendant. An application was thereupon made by a stranger to the suit for sanction to prosecute three persons under Section 205, Indian Penal Code. The Court refused the application, mainly, on the ground that sanction ought not to be granted to a person who was not a party to the proceeding and was apparently in no way interested in the matter before the Court. He then appealed to the District Judge under Sub-section (6) of Section 195, Criminal Procedure Code. The learned Judge held that no sanction ought to be granted to a stranger, but upon the facts placed before him, he came to the conclusion that proceedings should be taken under Section 476, Criminal Procedure Code. He, therefore, gave notice to the parties, took evidence and made an order under that section, because, in his opinion, a strong prima facie case was established that the offence alleged had been committed.
3. We are now invited to set aside this order on the ground that it was incompetent to the learned Judge to make an order under Section 476 inasmuch as the commission of the alleged offence was not brought to his notice in the course of a judicial proceeding. In support of this view, reliance has been placed upon the cases of Jadunath Mahta v. Jogadish Chandra Deb 7 C.W.N. 423 and In the matter of Mathura Das 16 A. 80.
4. In the first of these cases it was ruled by a Division Bench of this Court that when a Nazir of a Subordinate Judge has been resisted in execution of a decree and the Subordinate Judge has thereupon taken action under Section 195, Criminal Procedure Code, he cannot be said to have acted judicially. It was further held that a proceeding before the District Judge in the same matter under Sub-section (6) of Section 195 was not a judicial proceeding. In so far as the first of these propositions is concerned, it is clear that it cannot be maintained in view of the decision of a Full Bench of this Court in the case of Shaikh Bahadur v. Eradatullah Mallick 6 Ind. Cas. 801 : 37 C. 642 : 14 C.W.N. 799 : 12 C.L.J. 45, where it was pointed out that an execution proceeding is a judicial proceeding within the meaning of Section 476, Criminal Procedure Code. It is possible that the learned Judge who decided the case of Jadunath Mahta v. Jagdish Cunder Deb 7 C.W.N. 423 acted on the view subsequently adopted in the case of Har Charan Mukerjee v. King-Emperor 1 C.L.J. 161 : 2 Cr. L.J. 110 : 32 C. 367 : 9 C.W.N. 364 that an execution proceeding is not a judicial proceeding. That view, however, as we have just stated, can no longer be maintained. In so far as the second proposition is concerned, the learned Judges stated their opinion with considerable hesitation, and we take it that they did not intend to decide the point finally. But if the case really involves a decision upon that point, we are unable to accept it as sound on principle. It cannot be disputed that the grant of a sanction under Section 195, Criminal Procedure Code, is a judicial act; consequently, the revocation of a sanction already granted is equally a judicial act. It cannot, therefore, be doubted that the refusal of an application to grant sanction is precisely of the same nature as th9 two orders just mentioned.
5. In so far as the case before the learned Judges of the Allahabad High Court is concerned, In re Mathura Das 16 A. 80, it is clearly distinguishable, though based upon very questionable grounds. There it was held that an application under Section 195, Criminal Procedure Code, made to a District Judge was not a judicial proceeding and did not entitle the Judge to make an order under Section 476, Criminal Procedure Code. We are not prepared to accept this view as well founded. Whether the application ought to have been made in the first instance before the primary Court or whether it might have been properly made before the learned Judge, there is no room for doubt that an application under Section 195, Criminal Procedure Code, for grant of sanction is a judicial proceeding. The view we take is supported by the decision of a Full Bench of the Madras High Court in the case of Queen-Empress v. Sheikh Beari 10 M. 232 where it was ruled that sanctioning a prosecution for an offence is a judicial act. The same view was taken in the cases of Queen-Empress v. Seshadri Ayyangar 20 M. 383 and Pampapati Sastri v. Subba Sastri 23 M. 210. In the case before us, the application under Section 195 when presented to the Court of first instance did commence a judicial proceeding and the order of refusal was a judicial act. Consequently, the proceeding before the District Judge, under Sub-section (6) of Section 195 in which he was invited to review the propriety of the order of refusal of the Court of first instance, was also a judicial proceeding. The learned District Judge, undoubtedly, acted properly in refusing to grant sanction to a stranger to the suit. At the same time, it was perfectly open to him to take proceedings under Section 476, inasmuch as the fact of the commission of an offence had been brought to his notice in the course of a judicial proceeding under Sub-section (6) of Section 195. The contention, therefore, that the order of the District Judge was made without jurisdiction cannot be supported.
6. It has been argued, in the next place, that no order should be made in this case during the pendency of the civil suit. We are of opinion that there is no substance in this contention. The matter in controversy in the civil suit has no bearing upon the question to be investigated at the criminal trial, that question is whether an offence has been committed under Section 205, Indian Penal Code, which has obviously n) bearing upon the question to be determined in the suit for rent.
7. It has finally been suggested that Section 476 should be restricted in its application in the same manner as Section 195 has sometimes been restricted in other words, as the Court does not ordinarily grant sanction under Section 195 to a person in no way connected with the proceeding, the Court should similarly refuse to direct a prosecution under Section 476 when the fact of commission of au offence has been brought to its notice by a stranger. We are not prepared to accept the limitation suggested, and are of opinion that the order of the District Judge should not be disturbed.
8. The Rule is, therefore, discharged.