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Judgment
Coutts Trotter, J.—This is an application for sanctioning the prosecution of two persons for offences under Sections 193 and 465 of the
Indian Penal Code. Agreeing, as I do, with the views expressed by Napier, J. in Krishnamma v. Chitturi Chinna Perraju (1914) 17 M.L.T. 15 and
disagreeing with those of Seshagiri Aiyar, J. in Palaniappa Chettiar v. Ramaswami Chettiar (1916) 32 M.L.J. 54 : 20 M.L.T. 567 which
observations, in my opinion, are dicta which were quite unnecessary to the case decided by the Bench on that occasion, I feel myself in very great
difficulty as to what I should do in this case. I am satisfied that the true interest of the accused requires that the Judge who gives sanction should
abstain from giving anything like an analysis of the materials submitted to him for the purpose, or expressing any opinion as to the probability or
otherwise of a conviction. I think that all that a Judge in giving sanction is called upon to do is to feel that the matter is one which, on the face of it,
requires investigation by a Magisterial Court and ultimately by a competent tribunal. To my mind, it would be fatal to the interest of the accused
person that it should be thought that, because an order of sanction has gone, the committing Magistrate should feel that the sanctioning Court has
made up its mind that there is made out against the accused a prima facie case in the sense that would demand committal. That is the duty in my
opinion of the Magistrate before whom the case is brought up and not of the Judge before whom the sanction is applied for; and I think that it is
well put by Ayling, J., in Palaniappa Chettiar v. Ramaswami Chettiar (1916) 20 M.L.T. 557 : 32 M.L.J. 54 where he says "" In effect by according
sanction, it does not say to the Court which tries the case, '' This is a case which I think you will have to convict, ''but'' This is a case which I think
it is worth your while to enquire into.''
That is the only view I express in sanctioning this prosecution.
Various points were taken : The first one was that the affidavit and the promissory note filed along with it which is the foundation for these
proceedings was not done in a proceeding in a Court, on the ground that it was filed not before me directly but before the Official Assignee. In my
opinion, the heading of the affidavit alone is enough to show that this was filed in this Court in a proceeding in this Court, although, as a mere matter
of machinery, certain claims may be adjudicated upon by the Official Assignee as a Subordinate Officer of this Court. In any view, that point is
absolutely unarguable. Then it is said that the sanction u/s 195 1(c) Criminal Procedure Code is not for an offence committed by a party and
therefore it does not fall within the scope of this section. In my opinion, a claimant who files a claim in an insolvency petition in this Court is a party
to the proceedings. If his claim is disputed, he has to appear to support it and then a list is constituted between himself on the one hand and the
Official Assignee as representing the estate of the debtor on the other. If his claim is rejected, and he is not satisfied with it, he appeals to the Court
just like any other party in other proceedings. But, in any event, it is of no moment, because if he is not a party my sanction is not required. In case
it is required I give it and if it is not it does not matter, but I should like to conclude by expressing once more my strong dissent from the view that a
sanction given by this or any other Court is in any way tantamount to an intimation to the Magistrate that it is his duty to find that there is a prima
facie case against the accused and commit him for trial. In my opinion his duty is simply what he should do in any other case, and sanction is only
requisite to prevent a frivolous abuse of the powers of the Criminal Courts. I am satisfied that this prosecution is not that, and that is all I desire to
say about it.
I sanction the prosecution in terms of the notice of motion.