NATARAJA PILLAI Vs. RENGASAMI PILLAI

JUDGEMENT

(1.) This is an application to set aside the order of the Additional District Magistrate of Tanjore wherein he revoked the sanction to prosecute the respondents granted by the Sub-Divisional Magistrate of Tanjore. The application is under Section 195 of the Criminal Procedure Code which has been amended by Act XVIII of 1923. The old section allowed application to be made by a private party. This has now been abolished by the amended section and no Court can take cognizance of any offence punishable under Secs.172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, etc., or of the Court when such offence is alleged to have been committed in, or in relation to, any proceeding in that Court. Mr. A. V. Visvanatha Sastriar, who appears for the respondents, takes more than one preliminary objection. We have only heard him so far on one, and that is the question whether sanction proceedings can now be entertained under the Criminal Procedure Code as amended. Mr. Visvanatha Sastriar maintains that this is not an appeal under Section 195 Criminal Procedure Code and that the amendment of that section has effected an alteration in procedure. Now, it is settled law that new procedure affects bygone transactions and alterations in procedure are always retrospective. Gardner V/s. Lucas (1878) LR 3 AC 582 at 603. It is conceded by Mr. K. S. Jayarama Iyer for the petitioner that if this is a matter of procedure, the contention of the other side is correct. Mr. Jayarama Iyer however contends that there is a right of appeal given under Section 195 Criminal Procedure Code itself and that this section is self-contained and independent of, or additional to, any other right of appeal given by the Code. If this is an appeal, then the right of appeal inhered in the parties at the time the original application for sanction was made, which was on or before the 8 December 1921, for it is clear law that you cannot deprive a suitor of a right in a pending action of an appeal to a superior tribunal which belonged to him as of right. Colonial Sugar Refining Company V/s. Irving (1905) AC 369. So that, if this is an appeal, we can hear the petition; if this is not an appeal, but a mere matter of procedure, then, alterations in procedure being retrospective, we are not at liberty to entertain it. That this is not an appeal under the ordinary appellate chapters of the Code--Chapters 31 and 32- is clear from the ruling in Bapu V/s. Bapu ILR 39 M 750 : 22 MLJ 419 (F.B.). That was a decision of the Full Bench where the Court said they were not prepared to dissent from the conclusion arrived at by the Full Bench in Muthuswami Mudaly V/s. Veeri Chetti (1906) ILR 30 M 382 : 17 MLJ 266 (F B.). They added " we think however, the power conferred upon this Court by Section 195 (6) Criminal Procedure Code is not a part of the appellate and revisional jurisdiction of this Court conferred by chapters 31 and 32 of the Criminal P. C.. It is a special power conferred by Section 195 (6) Criminal Procedure Code." They decided that when the judges are equally divided on a question under Section 195 the matter is governed by Section 36 of the Letters Patent and not by Section 429 or 439 of the Criminal Procedure Code. The bearing of this case on the case in Muthuswami Mudaly V/s. Veeri Chetti (1906) ILR 30 M 382 : 17 MLJ 266 (FB) will be considered in a moment. Meantime it is instructive to refer to the opinions of the referring judges because, in the first instance, there were differing judgments and also an order of reference to the Full Bench, in all of which the matter was considered in some detail. Sundara Iyer, J., in his first opinion held that Clauses 6 and 7 of Section 195 Criminal Procedure Code do not provide on terms that an appeal lies from an order granting or refusing sanction, nor does chapter 31, relating to appeals, provide that an appeal shall lie from such an order, that the power of the superior Court under those clauses is similar to what it possesses in appeals and that the same may be said of the powers of the High Court in proceedings in revision. As to the language of Section 429, Criminal Procedure Code, the learned Judge was of opinion that the language referring to the powers of a Court of appeal under Section 195, Criminal Procedure Code was employed " only because it is the Court to which an appeal lies from the decisions of the Court granting the sanction that has got power to revoke a sanction or to give a sanction refused by an inferior Court. " Spencer, J. also held that there was no rule of law which subjects applications made under the special provisions of Section 195, Cr. P. Code to the periods of limitation contained in the Limitation Act. The learned Judges therefore in their first judgments both concurred that an application under Section 195 (6), Cr. P. Code cannot strictly be regarded as an appeal. To come to the Full Bench decision in Muthuswami Mudali v. Veeri Chetti (1906) ILR 30 M 382 : 17 MLJ 266 (FB), that case decided, that the right of appeal conferred by Section 195 (6), Cr. P. Code, as read with Sub-clause 7, is not restricted to a right of appeal to the appellate Court to which the Court of first instance is immediately subordinate. It also decided that a revocation of a sanction is a refusal of a sanction in the same way as an order confirming a grant of a sanction is giving of a sanction for the purposes of the section. Muthuswami Mudali V/s. Veeri Chetti (1906) ILR 30 M 382 : 17 MLJ 266 (FB) followed Palaniappa Chetti V/s. Annamali Chetti (1902) ILR 27 M 223 : 14 MLJ 74, where it was held that under Sub-section (6) a petition by way of appeal lies to the High Court in every case in which a civil or criminal Court subordinate to it within the meaning of Sub-section 7 (a) gives or refuses a sanction whether in respect of an offence committed before it or in respect of one committed before a Court subordinate to it, and in the latter case, whether it gives a sanction refused by the subordinate Court or revokes a sanction accorded by such Court. In all these three cases it is to be noted that the main question before the Court was, put shortly, whether there was one right of appeal or more than one, and what Palaniappa Chetti v. Annamali Chetti (1902) ILR 27 M 223 : 14 MLJ 74 and Muthuncami Mudali V/s. Veeri Chetti (1906) ILR 30 M 382 : 17 MLJ 266 (FB) decided is that in such a case there is more than one right of appeal. This is the point on which Bapu V/s. Bapu (1911) ILR 39 M 750 : 22 MLJ 419 (FB) confirmed Muthuswami Mudaly V/s. Veeri Chetti (1906) ILR 30 M 382 : 17 MLJ 266 (FB). As stated above Bapu V/s. Bapu (1911) ILR 39 M 750 : 22 MLJ 419 (FB) went further and held that the power conferred by Section 195 (6), Cr. P. Code is not part of the appellate and revisional jurisdiction conferred by Chapters 31 and 32, Cr. P. Code. Section 404, Cr. P. Code says that " no appeal shall lie from any judgment or order except as provided for by this Code. " It is therefore necessary in my opinion to find a distinct and definite right of appeal given by Section 195, Cr. P. Code itself before it can be assumed that any such right of appeal exists. Now, Sub-section 6 says that " any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate, etc. " The wording itself seems to point to an original refusal or an original grant by the High Court as a superior authority itself. Sadasiva Aiyar, J. in Panchalu Reddi V/s. Chinna Venkata Reddi (1902) ILR 27 M 223 : 14 MLJ 74 says that the powers given by Section 195 (6) of the Cr. P. Code to the superior " authority " is a specific statutory power. Though it is usual to call the application to the superior authority a petition of appeal, the learned Judge doubted whether it could be called an appeal. And in Subbasari V/s. Emperor (1921) ILR 44 M 47 the same learned Judge was inclined to hold that the application to the appellate Court to revoke or grant a sanction granted or refused is not an appeal, but an original application. In Public Prosecutor V/s. Raver Unnithiri it was said that a confirmation of sanction by the appellate Court is equivalent to a fresh grant of sanction by that Court. No doubt, Section 439, Cr. P. Code in speaking of the High Court's power of revision, confers on the Court any of the powers conferred on a Court of Appeal by Secs.195, etc. But I am of opinion, which I think is supported by authority quoted above, that the " Court of Appeal " referred to is only a designation of the superior authority to which application for revocation or grant is to be made. Further, it will be noted that Section 429, Cr. P. C. which provides for a difference of opinion between Judges composing the Court of appeal, is not confined to appeals under Chapter 31, whereas Section 428 (1), Cr. P. Code deals with appeals under " this Chapter. " This distinction is important in relation to the decision in Bapu V/s. Bapu (1911) ILR 39 M 750 : 22 MLJ 416 (FB) which held that Clause 36 of the Letters Patent applied and not Section 429, Cr. P. C. on a difference of opinion between the Judges composing the superior Court to which application is made under Section 195 (6), Cr. P. Code. Further, I am of opinion that the alterations made by the amendments to the Code are merely alterations of procedure. Prosecuions for various offences committed in relation to proceedings before public servants or Courts are still punishable, but those proceedings are to be initiated on complaints either of the public servants or the Courts concerned themselves and not on the application for sanction to prosecute by a private party. The public servant or Court will still generally be set in motion by the party aggrieved though of course it will be open to either to take proceedings suo motu.

(2.) For these reasons I am of opinion that no appeal is provided for in the Code under Section 195, Cr. P. Code and further that the amendments made affect only procedure. We have therefore since the amendment no power to entertain this petition, which must be dismissed. Wallace, J.

(3.) This is a petition to set aside an order of the Additional District Magistrate, Tanjore, revoking the sanction granted by the Sub-Divisional Magistrate, Tanjore, for the prosecution of the respondents for an offence under Section 188, Indian Penal Code.