MUQADDAS HUSSAIN Vs. ZAHUR UDDIN

JUDGEMENT

(1.) This application in revision comes before this Court under the following circumstances: One Shamshul Hasan brought a complaint before a Magistrate accusing Zahur Uddin and seven other persons of offences under Sections 147 and 323 of the Indian Penal Code. At the trial the present applicant in revision, named Muqaddas Husain, appeared as a witness for the complainant Shamshul Hasan. The evidence then given by him has been read to me and I find that, if the Court had felt itself able to act upon that evidence, it would have convicted Zahur Uddin and other persons of the offences alleged against them. As a matter of fact, the trial ended on the 1st of October 1918 in the acquittal of the accused persons. About a month later Zahur Uddin, passing over the complainant Shamshul Hasan and selecting Muqaddas Husain out of the various persons who had given evidence in support of Shamshul Hasan s complaint, applied for sanction under Section 195 of the Code of Criminal Procedure for the prosecution of Muqaddas Husain for the offence of giving false evidence, punishable under Section 193 of the Indian Penal Code, alleged to have been committed by him when giving evidence in the criminal case above referred to. Sanction was not sought in respect of any of the statements of fact which formed the material substance of Muqaddas Husain s evidence. Three detached statements were abstracted from amongst the answers which Muqaddas Husain had given in cross-examination and sanction was sought for his prosecution in respect of the same. The Magistrate directed Muqaddas Husain to show cause why the sanction applied for should not be granted, but eventually passed an order as desired in Zahur Uddin s application. That order was dated the 24th January 1919. Muqaddas Husain thereupon applied to the Sessions Judge to revoke the sanction so granted in virtue of his authority under Section 195, Clause 6, of the Code of Criminal Procedure. The Sessions Judge revoked the sanction granted in respect of two of the statements referred to in the order of sanction but has upheld the same in respect of the one remaining statement. Against this order, dated March the 8th, 1919, Muqaddas Husain comes to this Court in revision. It took him more than a month to present his application in revision before this Court and it has taken about a month and a half more for the said application to come up for hearing. The result is that more than 2/3rds of the entire period of six months, which the Legislature contemplates as being the period for which an order of sanction shall remain in force, have gone by, and all proceedings based upon the said order have remained pending, having been stayed by the order of this Court passed at the time when this application was admitted. The rights and remedies open to Muqaddas Husain under Section 195 of the Code of Criminal Procedure were exhausted by his application to the Sessions Judge. If the order of sanction had been one passed by a Civil or Revenue Court of competent jurisdiction in respect of any statements made by Muqaddas Husain as a witness in a civil or revenue proceeding, it is fully settled law that no further remedy would have been open to Muqaddas Husain; he would have had to stand his trial upon any complaint which Zahur Uddin might see fit to file, within the statutory period of six months, on the strength of the sanction granted to him. It so happens in the present case that the original order of sanction was passed by a Magistrate exercising jurisdiction under the Code of Criminal Procedure and the subsequent order under Section 195, Clause (6), of the same Code was passed by a Sessions Judge, that is to say, by a Court of criminal jurisdiction inferior to this Court within the meaning of Section 435, Clause I, of the same Code. It cannot, therefore, be denied that, as the law stands at present, this Court has jurisdiction to call for and examine the record of a proceeding like the present, that is to say of a proceeding: under Section 195, Clause (6), held in the Court of a Sessions Judge. A further opportunity is, therefore, afforded to any person against whom sanction has been granted by one authority, and confirmed by an authority no less competent than that of a Sessions Judge, of further obstructing the process of justice by carrying the matter before this Court in the way of an application for revision. I have been referred to more than one reported case in which this Court has not merely entertained an application for revision similar to the one now under consideration, but has actually interfered with the order granting or refusing sanction. I have never myself denied the authority of this Court to interfere under Sections 435 and 439 of the Code of Criminal Procedure as it stands at present. In the case of Ahsanullah Khan v. Mansukh Ram 25 Ind. Cas. 350 : 12 A.L.J. 511 : 36 A. 403 : 15 Cr.L.J. 598 I made an express reservation in favour of the revisional jurisdiction of this Court as an ultimate resource to be employed, if necessary, in order to avoid a failure of justice. The question, as it presents itself to my mind, is wholly one of discretion. The result of an order of sanction is at worst that the person against whom that order is passed may have to stand his trial before a competent Court. The law allows a person against whom the allegation, is made that he has committed the grave offence of giving false evidence an opportunity of contesting the propriety of any order of sanction which may be passed against him before one Court of superior jurisdiction to that which passed the said order. My own feeling in the matter is that it would be better in the interests of justice that Courts, at any rate, of so high a standing as the Court of Session, should be trusted to make a fair and equitable use of the powers given them by Section 195, Clause 6, of the Criminal Procedure Code, and that persons against whom an order of sanction has been passed and has been affirmed by an authority like that of a Sessions Judge should, generally speaking, be discouraged from delaying and obstructing the cause of justice further by invoking the revisional jurisdiction of this Court, unless and until they can show wholly exceptional reasons for so invoking that jurisdiction. This is an easy enough principle to lay down, but the difficulty of applying it lies in the fact that a person coming up to this Court in revision is necessarily heard in the first instance ex parte, and upon inadequate materials. Once he has obtained an order admitting his application, the main purpose of that application is more often than not fully served.

(2.) In the present case at any rate, the application of Muqaddas Husain was admitted, and proceedings were stayed, by order of a learned Judge of this Court. Under Section 435 of the Criminal Procedure Code the duty has been laid upon me of examining the records of the proceedings in the Sessions Court in this matter of sanction for the purpose of satisfying myself as to the propriety of the order passed. I have-been driven to the conclusion that it is wholly impossible for me to profess to be satisfied with the propriety of the order in question. It is an order which I should certainly have refused to pass had the application come before me as a Court of first instance; and had it been my duty to deal under Section 195, Clause 6, of the Criminal Procedure Code with the order of sanction passed by the Magistrate in this case, I should have unhesitatingly revoked the same. The statement in respect of which sanction has been granted for the prosecution of Muqaddas Hussain is in the following words: I am acquainted with Yakub Ali son of Unas Ali. He bears no sort of relationship to me.

(3.) I understand from an examination of the record of the original criminal trial that it was contended on behalf of Zahur Uddin that there was a feud between himself and the man Yakub Ali son of Unas Ali, referred to in the above statement Presumably the intention was to suggest that that fend was so bitter that any one connected with the said Yakub Ali by any sort of relationship must necessarily be regarded as a prejudiced witness in a case brought against Zahur Uddin. It appears that Zahur Uddin is in possession of information showing that Unas Ali, father of Yakub Ali, was married to a lady whose maternal grandfather was also the paternal grandfather of Muqaddas Husain. I find it difficult conceive that, if the Court had not before it any stronger reasons for distrusting the evidence of Muqaddas Husain, its opinion as to the veracity of this witness would have been seriously affected one way or the other by the existence of this relationship. Moreover, the matter was not pressed in cross examination, as, in my opinion, it should undoubtedly have been if there was latent intention of making the witness s answer the basis for a charge of perjury. The form of the question put to the witness simply directed his attention to Yakub Ali son of Unas Ali. I do not know now whether Zahur Uddin claims to be in a position to prove that the lady Imtiazunnissa above referred to is actually the mother of Yakab Ali, or is merely one of the wives of Yakub Ali s father. The Magistrate s order of sanction suggests the former, but his review of the documentary evidence laid before him on behalf of Zahur Uddin suggests the latter. In any case the attention of the witness was not drawn to the question of the names of any lady or ladies to whom Unas Ali was married. The answer returned by Muqaddas Hussain may have been a rash one. It may have been merely hasty. If it was intended to make that answer the basis of prosecution for perjury, the question should have been pressed home. His attention should have been definitely drawn to the fact that his cross examiner was in possession of instructions according to which a relationship between himself and Yakub Ali was trace-able, not through Unas Ali himself, but through a lady whom Unas Ali had married. It seems to me that those con-ducting the defence of Zahur Uddin at the criminal trial never seriously intended to make anything of this question. They were well content with a hasty answer, which it was possible to represent as false in fact and to use as such hereafter for the annoyance of the witness. Had the question of the relationship between the witness and Yakub Ali been regarded by those responsible for the defence as one of any serious importance, the matter could not have been left where it was. For these reasons I am unable to hold that the order under revision satisfies me as to its propriety and, once the revisional jurisdiction of this Court has been invoked in a matter of this sort, it has to be exercised. My order, therefore, is that I set aside the sanction in question.