EMPEROR Vs. SHANKAR BALKRISHNA DESHPANDE

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge of Thana under Section 307, Criminal Procedure Code. The two accused were charged before the Additional Sessions Judge sitting with a Jury under Section 467 or Secs.467 and 109 or Section 114, Indian Penal Code, It was alleged that they had forged the will of one Kashinath Shanker, deceased, or had abetted the forgery thereof. The Jury disagreed, three were in favour of an acquittal, and two were of opinion that both the accused were guilty of abetment of forgery. The Judge, in making the reference, has expressed the opinion that both the accused were guilty, and has given his reasons therefor.

(2.) At the outset a point of law has been raised founded on the fact that no sanction was obtained prior to the prosecution. The will, which it is alleged was forged, was produced on the 19 October 1920 by the first accused in the Small Cause Suit No. 824 of 1920. No objection was taken at the trial on the ground of want of sanction, and if the accused had been convicted, and had filed an appeal to this Court, there can be no doubt that under Section 537, Criminal Procedure Code, that sentence could not have been reversed or altered for want of or any irregularity in any sanction required under Section 195 unless such want or irregularity had occasioned a failure of justice. But it has been argued that because the case comes before us under Section 307, Section 537 is not applicable. Under Sec. 307, Sub-section (3):- In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the Jury, acquit or convict the accused of any offence of which the Jury could have convicted him upon the charge framed and placed before it.

(3.) The whole case, therefore, is open to the Court when hearing a reference under Section 307, Criminal Procedure Code, and in dealing with the reference, the Court exercises all the powers which it exercises on an appeal. But it would not have the power, if it were an appeal, of dealing with the case by altering or reversing the finding, sentence or order passed by a Court of competent jurisdiction for want of or any irregularity in any sanction required by Section 195, Criminal Procedure Code, unless such want or irregularity had occasioned a failure of justice, and it would appear to follow that it is not competent to this Court to take any action in consequence of a want of sanction which would take the form of an order quashing the whole of the proceedings and directing a re-trial since we do not think that any failure of justice has been occasioned. Such being the case, I think that we are entitled, although Section 537, Criminal Procedure Code, does not directly apply to a reference under Section 307, to hold that the fact that there was a want of necessary sanction before the prosecution was instituted is no ground for our declining to interfere in this reference.