DEBILAL Vs. DHAJADHARI GOSHAMI

JUDGEMENT

(1.) This was a rule calling upon the District Magistrate of Sahabad to show cause why the order to prosecute the petitioners under Sections 466, 467 and 471, Indian Penal Code, should not be set aside on the ground that it was made without jurisdiction inasmuch as the sanction of the Civil Court was necessary, because the petitioners are only liable to be tried as abettors or joint offenders with the party to the probate suit.

(2.) As regards the charge under Section 467 of forging the Will and abetting such forgery by the attesting witness there is, we find, a strong body of authority in the Madras, Bombay and Allahabad Courts that sanction is not necessary against any person who is not a party to the suit and that witnesses are; not to be considered parties to the suit. Moreover, the Judge is not competent to grant such sanction even if it is asked for against any but the actual parties in the case before him. We have considered the cases of Eadara Virana v. Queen 3 M. 400; In re Devje valad Bhavani 18 B. 581; Sequeira v. Luja Bai 25 M. 671; Noor Mahamad v. Kaikhosru 4 Bom. L.R. 268; Anna Ayyar v. Emperor 30 M. 226 : 6 Cr. L.J. 131 and Emperor v. Ghansham Singh 32 A. 74 : 4 Ind. Cas. 105 : 6 A L.J. 983 : 10 Cr L.J. 497 and there are other cases to the same effect and no case per contra. There is no direct authority on the point in this Court but the Judges in Akhil Chandra Deo v. Queen Empress 22 C. 1004 seem to have taken the rule for granted at page 1006 where they point Out the difference in the power of a Civil Court in directing a prosecution under Section 476 in respect of any document or act which is brought under its notice in the course of a judicial proceedings and the power to grant sanction under Section 195 which is qualified in certain cases like the present where sanction can Only be given against a party to any proceeding in Court. Had the matter been res Integra this is the view that we should have had to take on the word of the statute.

(3.) But it is argued on the authority of Giridhari Marwari v. Emperor 12 C.W.N. 822 : 8 C.L.J. 73 : 8 Cr. L.J. 51, to which one of us was a party, that sanction is necessary where there are other charges involving the necessity of sanction which may be made against the accused.