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Judgment
Napier, J.—This is an application for revocation of sanction to prosecute the petitioner for an offence u/s 182, I.P.C., in that he gave false
information to a public servant. The petitioner wrote to the District Magistrate informing him that one Soora Chinna Venkata Reddi had in his
custody without license 3 pieces of arms and submitted to the District Magistrate that the possession of such weapons "" by such a person in our
village will be dangerous to our lives and that they are without any license."" The house of Venkata Eeddi was searched and no arms were
discovered. Venkata Reddi then put in a petition, to the District Magistrate u/s 195 of the Criminal Procedure Code asking for sanction for the
prosecution of the person who gave the information for an offence u/s 182, I.P.C. The District Magistrate granted the sanction. The petitioner then
appealed to the Sessions Judge who dismissed his petition holding that the order was passed by the District Magistrate not as a Court but as an
executive officer and that therefore no appeal lay to his court. He expressly followed a decision of this Court in Sankaram Avyar v. Sakkarappa
Mudali (1903) 2 Weir 155. In that case a report had been made by a Village Munsif u/s 45 of the Criminal Procedure Code to the nearest
Magistrate, of the occurrence in the village of a death under suspicious circumstances or of the commission of an offence of murder. The High
Court held that a report made under this section was not made to a Court and that therefore the Sessions Judge had no jurisdiction to entertain an
appeal from a sanction granted by a Magistrate for the offence of giving false information to a public servant. With great deference to the learned
Judges, I think that this view is incorrect, and if the information in this case had been given under that, section, we might have thought it necessary
to refer the matter to a Full Bench. But as I think the information is given under a special Act, we feel at liberty to dispose of it.
It is argued that the information constituted a complaint under the Code. But I do not think that it can be so treated. u/s 28 of the Indian Arms
Act (XI of 1878) every person aware of the commission of an offence shall, in the absence of reasonable excuse, give information of the same to
the nearest Police Officer or Magistrate. I have no doubt that the intention of the informant was to act under this section, especially in view of the
language of his prayer which states that "" the possession is without any license,"" this being an offence punishable u/s 19, Clause (f) of the said Act.
The informant did not go to the Magistrate to make the complaint, and he was not examined on oath as he would have been if it had been a
complaint. It appears that the Magistrate directed the issue of a warrant for the search of the house and the police procured the warrant from the
nearest Magistrate. I am not clear whether the Magistrate in directing the issue of a warrant purported to act specifically under the Criminal
Procedure Code with reference to an offence which had been brought to his notice or purported to act u/s 25 of the Indian Arms Act. If he was
acting under the Code of Criminal Procedure it would be very difficult to argue that the information on which a Court issues a warrant is not
information given to the Court, and it would not matter that the action was taken u/s 190, Sub-section (1), Clause (c) of the Criminal Procedure
Code and not on complaint. But if he did not think at that stage that it was necessary to take cognizance of an offence, but only acted u/s 25 of the
Indian Arms Act the question is more difficult, for if such action is not by a Court, it would necessarily follow as held by the Sessions Judge, that
the information was given to an executive officer and not to a Court Section 25 provides that where a Magistrate has reason to believe that any
person has in his possession any arms for an unlawful purpose, or that Such person cannot be left in the possession of any such arms without
danger to the public peace such Magistrate having first recorded the ""grounds of his belief may cause a search to be made, and may seize and
detain the arms although covered by a licence in safe custody for such time as he thinks necessary. The information in this case was to the effect
that the possession of these arms is dangerous to the lives of the persons in the village, and it may very likely be that the Magistrate was proceeding
u/s 25 of the Act (Act XI of 1878) as a preliminary to any further proceedings which might be necessary for an offence under the Act. Assuming
that he did so, I am still of opinion that he was acting as a Court. It is true that the section does not say he shall issue a warrant. But I know of no
procedure by which the police have a power of search except under the Code and it would seem to follow that except by a warrant the Magistrate
could not authorise the Police to makea search, It would seem to follow therefore that the Magistrate, in exercising his powers under this section,
must have recourse to these powers under Chapter VIII (b) of the Criminal Procedure Code of issuing search warrants subject of course to the
special procedure contained in Section 25 of the Indian Arms Act and such warrants are of course under the language of the section issued by a
Court.
There is another reason why I think the Magistrate is acting as a Court, and that is, the use of the words "" having first recorded. the grounds of
his belief."" If the Magistrate is not a Court when proceeding u/s 25, the provision can have no value whatsoever. These words are always inserted
where the Legislature intends to provide that a Court shall put on record the information on which it is acting for the benefit of any superior Court
having jurisdiction to review its action. I am fortified in this view by the opinion expressed by Brett, J. in Clarke v. Brajendra Kishore Roy
Chowdhury ILR (1909) Cal. 433. In that case a District Magistrate having received information of a formidable riot in which firearms were used,
came to the spot and being informed that the fire-arms were being kept in certain houses, searched the houses. It was held by the majority of the
Bench that his action was justified neither by the Criminal Procedure Code nor the Arms Act. On Appeal to the Privy Council, Clarke v.
Brajendra Kishore Boy Chowdhury ILR (1912) Cal. 953, the first view was negatived, but the latter view was upheld on the ground that he had
not recorded his reasons as required by Section 25 of the Arms Act. Neither the Privy Council nor the majority of the Bench expressed any
opinion on the question whether action u/s 25 was the action of a Court, but the dissenting Judge states his opinion on that point definitely. He
considers the matter on page 476 and says as follows :--"" The distinction between a judicial and an executive act in India is not very clearly drawn
as many acts, which are purely administrative, are generally described as executive, The main distinction between the two appears to be that
judicial acts are those acts done or orders passed in the exercise of the judicial discretion or power with which an officer is vested urider the law,
while executive acts are of a ministerial character either carrying judicial orders into effect or discharging duties not of a judicial nature. In the case
of Hope v. Evered (1886) L.R. 17 Q.B.D. 338 to which we have been referred, it has been clearly laid down that the issue of a search warrant is
a judicial act and in the case of Mahomed Jackriah & Go. v. Ahmed Muhomed ILR (1887) Cal. 109 and in the case of In re Lakshmidas Naranji
(1903) 5 Bom. L.R. 980 a similar view has been taken by the High Courts in India.
I agree with the learned Judge that it is often difficult to say what acts of a Magistrate are administrative and what are judicial. But I think that
where as in the case of a search or the issue of a search warrant the action of a Magistrate under a special Act is'' analogous to his action as a
Court under the Code, the better view would be to hold that in this case too be was acting as a Court. We have already decided in Criminal
Miscellaneous Petition No. 83 of 1918 Arunachallam Pillai Vs. Ponnuswamy, that sanction by a Court u/s 195, Sub-section (1)(a), is appealable
under Sub-section 7. It follows therefore that the view of the Sessions Judge is incorrect and that he had jurisdiction to entertain the appeal. The
petition is allowed and the case will be remitted to the Sessions Judge who will take it on his file and dispose of it according to law in the light of the
above observations.
Sadasiva Aiyar, J.
I agree with the order proposed by my learned brother and I further agree generally and in substance with the reasons given by him. 1 wish
however to add some words of my own. The powers given by Section 195(6) of the Criminal Procedure Code of the superior ''authority'' to
revoke or grant a sanction given by a subordinate ''authority'' is a specific statutory power. There is no express procedure laid down for the party
to follow who wishes to move the superior authority to interfere with the proceedings of the subordinate authority. It seems to be usual to call the
application to the superior authority a petition of "" appeal "" though I am doubtful whether it could be called an ""appeal."" The mere fact that under
Clause 7, the superior authority is (where the subordinate authority is a Court) the Court to which in most cases [though not in all, see Sub-clause
(c)] appeals ""ordinarily lie "" is not a complete justification for the use of the word '' appeal.'' However, the description of such an application as an
appeal is convenient and I only wish to guard myself against the use of that term tending to mislead the mind in certain contingencies
With the greatest respect to the decision in Criminal Revision Case No. 136 of 1903, Sankaram Aiyar v. Karappa Mudaliar (1903) 2 Weir Crl.
155 I feel constrained to dissent from that decision. In that case a Village Munsif sent a false report to the Sub-Magistrate accusing a man of
murder. It is clear that he did so in order that the Sub-Magistrate might as a criminal court take cognizance of the alleged offence. The Sub-
Magistrate accorded sanction to prosecute the Village Munsif for an offence under Sections 177 and 182, I.P.C. The Sub-Divisional Magistrate
revoked the sanction. The Sessions Judge "" restored "" the Sub-Magistrate''s order. [According to Section 195(6) of the Criminal Procedure Code,
it is not, strictly, a restoration of the Magistrate''s order but the fresh granting of the sanction by the Sessions Judge himself. The Sessions Judge in
that case treated himself as an appellate authority instead of an authority who was given a special statutory power and, as I have said above, was
misled by the use of the term '' appeal'' to indicate an application made to a higher authority under Clause (6)]. Then on revision to the High Court,
the learned Judges (Benson and Bhashyam Aiyangar, JJ.) held (a) that the sanction to prosecute was granted by the Sub-Magistrate of Turaiyur in
his capacity as a public servant and not in his capacity as a Court, (b) that he would have acted in his capacity as a Court only if the offence for the
prosecution of which sanction was applied for was one of those mentioned in Clauses (b) and (c) of Section 195(1) and not if it fell under, Section
195(1)(a); and (c), that the Sub-Divisional Magistrate did not act as a Court but ouly as an executive officer and the superior authority over the
Sub-Magistrate in revoking the sanction granted by the Sub-Magistrate and (d) that the Sessions Judge had therefore no jurisdiction to interfere
under Sub-sections 6 and 7 of Section 195.
It seems to me that every Magistrate acting judicially is a criminal court. A Magistrate to whom as a criminal court a report is made in order that
he might take action as a criminal court receives that report as a Court. The presiding officer of the Court is, no doubt, almost always a '' public
servant'' also (Section 195, Clause 1(a)), and is also an ''authority'' (Clause (6). When he grants a sanction in respect of an offence falling under
Sections 177 and 182, I.P.C. (which are two of the offences mentioned in Section 195, Clause 1(a) of the Criminal Procedure Code) he clearly
grants the sanction as a Magistrate, that is, as a Court and Clause 7, in my opinion, directly applies. In the case in Clarke v. Brajendra Kishore
Roy Ghowdhury ILR (1912) Cal., p. 953 their Lordships of the Privy Council decided that a Magistrate making a search even in the absence of a
complaint and on his own knowledge that an offence had been committed is acting as a criminal court. At page 966, they say "" It would seem that
the Trial Judge and both the learned Judges who formed the majority of the Court of appeal were misled by the use of the word '' court '' in
Section 96. For the sake of brevity the cpde uses the terms ''Court'' and ''Magistrate'' generally, if not always, as convertible terms. Section 6
headed "" Classes of Criminal courts"" enacts that "" Besides the High Courts and the Courts constituted under any law under this code for the time
being in force there shall be five classes of criminal courts in British India, namely:--(1) Courts of Sessions, (2) Presidency Magistrates, (3)
Magistrates of the First Class, (4) Magistrates of the Second Class, and (5) Magistrates of the Third Class."" Then their Lordships say that a search
made by a Magistrate is a proceeding conducted by him when "" acting in the discharge of his judicial functions."" I think that this dictum of their
Lordship of the Privy Council must be held as overruling the opinion expressed in Criminal Eevision Case No. 136 of 1903, that a Sub-Magistrate
to whom a report is made as such Magistrate and who grants sanction to prosecute is not acting as a Court but as a public servant other than a
Court.