MUHAMMAD FAKHR-UD DIN Vs. BHIKHI RAM

JUDGEMENT

(1.) THIS proceeding, though registered as a First Appeal from an Order of a Civil Court, is in reality an application to this Court to exercise its powers under Clause 6 of Section 195 of the Code of Criminal Procedure to revoke a sanction which has been given by the District Judge of Cawnpore for the prosecution of one Haji Hafiz Muhammad Fakhruddin on charges under Sections 182 and 211 of the Indian Penal Code. The said Haji Hafiz Muhammad Fakhruddin had been declared insolvent in the court of the District Judge of Cawnpore and proceedings against him were pending. He presented on the 4th of June, 1913, a written petition to the District Judge of Cawnpore in which he alleged, in effect, that one Bhikhi Ram had, under cover of proceedings which were being taken by the Receiver appointed under orders of the Court, and in collusion with a subordinate agent of the Receiver and with another person, dishonestly taken possession of certain property, to wit, a large number of steel bars, and appropriated it to his own use, knowing that he had no right to do so. The petition asked the District Judge to take action in various ways, one of these ways being by procuring a police search of Bhikhi Ram s premises. THIS petition was forwarded by the District Judge to the Magistrate with a request that immediate action might be taken by the police. The result was that Bhikhi Ram was arrested, and his house was searched. He was placed before a Magistrate, but released on bail. Eventually the investigating police officer reported that there was no sufficient evidence to warrant further proceedings being taken against Bhikhi Ram and the Magistrate discharged his security. It is under these circumstances that on the application of Bhikhi Ram the District Judge of Cawnpore has sanctioned the prosecution of Haji Hafiz Muhammad Fakhruddin for offences under Sections 182 and 211 as aforesaid. The objection taken before us is that the sanction given is bad in law and not warranted by the circumstances of the case. So far as it concerns the alleged offence under Section 182 of the Indian Penal Code, we are satisfied that Mr. Kendall, the District Judge of Cawnpore, was a public servant to whom the alleged false information was given and that ho had before him materials sufficient to warrant his granting sanction to the institution of proceedings under that section. With regard to the alleged commission of an offence punishable under Section 211 of the Indian Penal Code, our position is this: We think that criminal proceedings were instituted against Bhikhi Ram within the meaning of that section; but looking to the words of Section 195 of the Code of Criminal Procedure we are quite clear that the court of the District Judge of Cawnpore was not the court in which these proceedings were instituted and we are at any rate doubtful whether it could be said that this offence of causing to be instituted "criminal proceedings without just or lawful ground was committed in relation to a proceeding pending in the court of the District Judge. The record of the police investigation and the orders of the Magistrate thereon have not been before us. Consequently, we think it better that we should refrain from expressing any opinion one way or the other as to whether the sanction of the Magistrate who directed the release of Bhikhi Ram on hail, and eventually discharged his security, may not be required before proceedings under the section are taken against Haji Hafiz Muhammad Fakhruddin. At the same time, however, to avoid the possibility of any technical objection that might be raised hereafter as to the necessity for the District Judge s sanction, we think it advisable to leave the Judge s order as it stands. The result is that we dismiss this appeal with costs, including in this Court the fees paid by the respondent to the amount certified in this Court.