Turner, Officiating C.J., Pearson and Oldfield, JJ.
1. q.v. supra, I All. 17. Section 469 of the Criminal Procedure Code, in declaring that the Magistrate shall not entertain a prosecution of any of the offences therein specified without the sanction of the Court before which the offence was committed, or of some Court to which it is subordinate by implication gives the Court before which the alleged offence has been committed, and to the Courts to which that Court is subordinate, a discretionary power to sanction the prosecution. If this discretionary power is exercised and sanction accorded, the law gives no appeal from such an order. This was ruled by this Court in the case of Balwant Rai decided on the 4th April 1874 H.C.R., N.–W.P., 1874, p. 124 : and there being no appeal, the Court cannot interfere on motion in the nature of an appeal; this was ruled by the High Court of Calcutta in the case of Ram Pershad Hazaree 5 W.E. Mis. App., 24. But the refusal of one Court to exercise its power does not deprive the other Courts of the right to exercise the same power. If the Court before which the alleged offence is committed refuses to exercise its power, the application to the superior Court is in the nature of an original application and not of an appeal. It is an application to one of two or more Courts which are vested with independent powers of sanction. If the law declares that a person may act with the consent of A or B or C, although A and B may refuse to give consent, the consent of C will be sufficient. In placing a restriction on the right of prosecution in respect of certain offences, the legislature has not confined the power of sanction to the Court before which the offence is committed, but has conferred it on that Court and on any other Court to which that Court is subordinate, and the sanction accorded by any one of those Courts satisfies the restriction. This view of the law is supported by the rulings of the High Court, Calcutta, (Dinobundhoo Chuckerbutty 5 W.R. Mis. App., 6), and of this Court, and we are aware of no ruling to the contrary. But it is contended that sanction can only be given by a superior Court when the case in which the offence was committed comes before it in appeal. To accede to this contention would be to import into the Act a condition which we do not find there, and which we cannot find anything in the Act itself to warrant us in introducing. Again, it has been objected that in the view here taken of the existence of independent powers of sanction in two or more Courts, it may happen that a subordinate Court may grant sanction after it has been refused by a superior Court. Doubtless this is so, but to obviate the unseemliness of such procedure, it has been the practice of this Court, and we think it should be the practice of all superior Courts, to refuse to entertain the application until it is shown that an application has been made to the subordinate Court and that by that Court sanction has been refused. In reply to the reference made to us, we answer that in our judgment, a sanction given by any one of the Courts empowered under the Act cannot be disturbed by a superior Court, and that where sanction is refused by one of those Courts the refusal does not deprive the other Court of the discretion given to them.
2. I cannot agree with the entire draft of the proposed judgment. I think that there is force, and great force too, in the objection that, in the view taken of the existence of independent powers of sanction with two or more Courts, it may happen that a subordinate Court may grant sanction after it has been refused by a superior Court. The objection to such a course is on the surface, and it is met with the reply that it has been the practice of this Court, and should be the practice of all superior Courts to refuse to entertain an application until it is shown that an application has been made to the subordinate Court and that by that Court sanction has been refused. But, in my opinion, there is no need of any such practice in order to get rid of any such objection. It appears to me that the words of Section 469, Criminal Procedure Code, do not admit of the suggestion that there are two or more Courts with independent powers, and that if one refuses, the other can grant sanction. The words are that a complaint “shall not be entertained against a party to such proceedings except with the sanction of the Court in which the document was given in evidence, or of some other Court to which that Court is subordinate.” These words signify, I think, that the Court to which such Court is subordinate may, by virtue of its superiority, grant the sanction withheld by the lower Court. At the same time, I hold that sanction, once given by the Court to which the first Court is immediately subordinate, cannot be withheld by any Court superior to that Court. When no sanction has ever been applied for in the two Courts below, it may, I think, be given by this Court as the superior of both, and so, where no sanction has been granted by the first, it may be given by the second Court.
3. There is no appeal from one Court to the other. But an application may, I apprehend, be made on what is known as the miscellaneous side of the superior Court, and sanction, if not already given, may be granted.
4. With these remarks, I may say that I agree in substance with the proposed reply to the reference made; that is to say, sanction given by any one Court cannot be disturbed by a superior Court, and that when sanction is refused by one of those Courts, the refusal does not deprive the superior Courts of the discretion given to them.