IQBAL HUSAIN Vs. WILAYAT HUSAIN

JUDGEMENT

(1.) THE learned Sessions Judge of Moradabad had before him a paper purporting to be a petition from one Wilayat Husain, prisoner in Jail. It was apparently presented through Mr. Kedar Nath, Barrister-at-Law. It purported to be an application asking for sanction to prosecute Sub-Inspector of Police by name Iqbal Husain for offences said to have been committed under Sections 193, 211, 465, 471, etc., Indian Penal Code. It must have been known to the learned Judge that Wilayat Husain was a man at the time in Jail and a person who had several times been previously prosecuted and convicted of offences against the Indian Penal Code. THE person aimed at in the application was a Sub-Inspector of Police. If ever there was a case in which the discretionary power to give sanction should have been most carefully considered, this was such a case. This Court has on several occasions pointed out that an application for sanction when made under Section 1 95, Criminal Procedure Code, must be carefully considered before the sanction is given. See Kishan Lull v. Sheo Dial A.W.N. (1893) 104; Empress v. Mahadeo Singh A.W.N. (1887) 142 and many other cases. Applications asking for sanction stand on quite a different footing from action taken under Section 476, Criminal Procedure Code, and what I now say refers in particular to applications for sanction made under Section 195 and not to action taken under Section 476, Criminal Procedure Code. If I had been satisfied that proper care had been taken before the sanction was granted under Section 195, I should have felt it difficult to interfere; but after carefully considering the matters on record and the arguments addressed to me by the learned Counsel, I am not satisfied that such care was exercised by the Court below. In the first place, the sanction has been given upon what were considered by the Court below to be contradictory statements. That Court in its judgment says that in the case of Iqbal Husain some of the statements quoted in the application are no doubt false; but it has been shown to me that as regards one of the statements so characterised the learned Judge has misunderstood or misinterpreted the statement made before the Committing. Magistrate. In the second place I cannot find that an opportunity was given, as it should always be given to the person supposed to have made contradictory statements, to give on oath his explanation of the statements which he made. It appears to me that the statements which were read over to me are not so impossible of explanation that I must be forced to consider one of them to be false. I do not think it was a wise discretion to grant an application said to have been presented by a person like Wilayat Husain against an officer holding a responsible post of Sub-Inspector of Police without much more care than appears to have been exercised. Had the matter been before me in the first instance; I should have hesitated long as to whether sanction in such a case should be granted at all without further opportunity being given to the Sub-Inspector to explain the statements fully and to state the circumstances under which they came to be made. A person holding the office of Sub-Inspector of Police is entitled to be guarded against reckless statements made by a convict. For these reasons I revoke the sanction granted by the lower Court.