Full Judgment
Aikman, J.
1. This is an application for the revision of an order of the Sessions Judge of Gorakhpur. From the record submitted it appears that one Lalla was sent up by the Police for trial on a charge of attempt to commit housebreaking by night. He was convicted by Mr. Lemaistre, Deputy Magistrate, and sentenced to six months' rigorous imprisonment. On appeal he was acquitted by the Sessions Judge. The following are the concluding words of the Sessions Judge's appellate judgment: 'The appeal is allowed and the conviction and sentence of Lalla are quashed. He will be immediately released, and is at liberty to prosecute Banarsi Das under Sections 211, 193, Penal Code, or other sections applicable, for getting up and falsely testifying in this case.' This order was passed on the 27th of April 1895. On the 23rd of October following Lalla filed a complaint against Banarsi Das the applicant, for offences punishable under Sections 211 and 193 of the Indian Penal Code. An objection was taken that there was no sanction for the prosecution. The Magistrate overruled this objection. The applicant then petitioned the Sessions Judge, who passed the following order: 'The application is rejected. The sanction is perfectly adequate, and I intended it to be a sanction.' It is this order the revision of which is prayed for.
2. It is urged that the so-called sanction is not a proper sanction. It appears that no application was made for sanction. In my opinion, this being the case, the Sessions Judge, if he considered that there was ground for inquiring into an offence referred to in Section 195 of the Code of Criminal Procedure, ought to have himself taken action under the provisions of Section 476 of the Code, and not to have left it to a private person to take proceedings if he felt so inclined. In the case Empress of India v. Gobardhan Das I.L.R. 3 All. 62, which was decided under the former Code of Criminal Procedure, PEARSON, J., remarked that Section 469 of the then Code, which corresponds to Section 195 of the present Code, presupposed a complaint or at least an application for sanction for a complaint. Section 468 of that Code differs, it is true, from Section 195 of the present Code. The former section provides that a complaint of offences against public justice shall not be entertained in the Criminal Courts except with the sanction of the Court before or against which the offence was committed or some other Court to which such Court is subordinate. Section 195 provides that no Court should take cognizance of such offences except with the previous sanction or on the complaint of the Court or some Court to which it is subordinate. It has been held that 'sanction' here refers to cases in which a prosecution is instituted by some private person, whilst the word 'complaint' refers to cases in which the Court itself takes action under Section 476. The learned Government pleader contends that sanction may be given, even though no application for sanction has been made. The question is not free from difficulty, but I am inclined to think that a sanction presupposes an application for sanction, and that where no such application is made, a Court ought not to take upon itself to grant sanction, but should take action in the manner provided by Section 476. I cannot agree with the Sessions Judge in thinking that his sanction in this case was 'perfectly adequate.' It did not comply fully with the provisions of Section 195.
3. As to the merits of the case, it is urged that there is no ground for the institution of a prosecution against the applicant. I have read through carefully all the evidence which was recorded in the case for both and against Lalla, and l am clearly of opinion that this is not a case in which the complainant, Banarsi Das, should be prosecuted. If the concluding remark of the Sessions Judge in his judgment can be looked upon as a sanction, I revoke that sanction and direct that any proceedings instituted upon it be stayed and abandoned.