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Judgment
Oldfield, J.—It is not disputed that interference, with the order of the District Munsif, granting sanction, can be justified only u/s 115(c) of
the Civil Procedure Code. Both the learned Judges have dealt with the case on that assumption and it is therefore unnecessary to refer to
authorities in support of it. Abdur Rahim, J., further referred to Section 15 of the Charter Act and something was said regarding it by accused''s
counsel. We have however been shown only one reported case, in which this Court proceeded under it in circumstances similar to those now in
question: Palaniappa Chetti v. Annamalai Chetti ILR (1903) M. 223 and the facts in it were of a very special character. I moreover agree with
Ayling, J., that our power of superintendence should be invoked only in exceptional cases; and. this is not one. The question then is whether the
District Munsif in the words of Section 115(c) acted in passing his order illegally or with material irregularity in the exercise of his jurisdiction; and I
therefore note once for all that we are in my opinion at liberty to consider, not (as we might u/s 439 of the Code of Criminal Proeedure) whether
his order is founded on a sound use of his discretion, but only whether it complies with the minimumrequirements of the law.
The facts need not be repeated as they have been stated fully in the Judgments of the two learned Judges; and the arguments relied on here are
with one exception stated fully in them. It is accordingly possible to deal shortly with the first two objections to the District Munsifs order, that he
had before him no evidence or insufficient evidence to justify it. Accused''s alleged false statement was that his land was never known by a
particular name. The evidence to prove it false was that of two pleaders, who heard him say shortly before that it was known by that name, their
depositions to that effect Having been recorded by the District Munsif at the preliminary anquiry, which he held. Cantra it is urged first that the
District.
Munsif could not take action or even initiate a preliminary enquiry, until gome legal evidence was before him and that it was not sufficient for him
to secure it afterwards. But this is supported by nothing in the section, is opposed to Baperam Surma v. Gouri Nath Dutt ILR (1893) C. 474 and
is unreasonable, when, as here, the District Munsif himself heard the earlier statement made and merely recorded the pleaders'' depositions in order
to obtain legal evidence of the fact. Secondly it is said that the earlier statement was privileged u/s 126 of the Indian Evidence Act. This is not in
accordance with the facts. For the statement was not made by accused to his pleader in the course of and for the purpose of bis employment as
such, but merely in the presence of his pleader as well as those of his opponents and of the District Munsif in the course of the conversation
regarding compromise, in which the last mentioned appears to have officiously and perhaps injudiciously taken part.
Next, was the evidence sufficient? The sufficiency of evidence is not a matter, which can in my opinion be considered u/s 115(c) except in so far
as it can be shown that the evidence available is so weak as to be negligible and that the Court was unreasonable in acting on it. But that is not the
case here. For in the absence of direct evidence, which (as Ayling, J, says) may in fact be available at the trial, a previous contradictory statement
by the deponent is as good a reason for distrusting his later deposition as can be imagined. It is said that there is no reason for assuming that the
earlier statement was true and the later, which alone was on oath, was false; and no doubt there could be no assignment of perjury in the
alternative. But the Court, which tries the case, will have to decide which statement is false with reference to the circumstances, if not to other
direct evidence; and it is easily intelligible that the District Munsif found sufficient reason in those circumstances for holding that prima facie the false
statement was that made on oath. It is for obvious reasons undesirable to attempt in this Court to anticipate the course, which argument at any
future trial may take ; and I therefore hold without furtherdiscussion that the District Munsif had sufficient evidence before him.
The remaining objection is that the order of sanction was passed before the conclusion of the trial, in which the alleged false statement was
made. The contention before the learned Judges was that an order so passed should be set aside, because the inevitable result would, as stated by
Abdur Rahim, J., be to keep away any other witnesses, who might give valuable evidence and in other ways impede a fair trial of the cause.
Ayling, J. met this by reference to the probability that any injustice, which the litigant might suffer, could be corrected on appeal. But with all
respect I prefer the broader grounds that (1) the applicability of our revisional powers depends on the existence of material irregularity or illegality
in the order under consideration itself, not on its possible consequences and the Court''s use of its discretion in risking them and (2) the order
cannot fairly be regarded as likely to deter other witnesses than those, who had reason for apprehending similar orders in their own cases and their
failure to give evidence would not be matt3r for regret. In connection with (2) it is to be observed that, even had the District Munsif reserved his
order of sanction, until the judgment in accused''s suit had not been delivered, the postponement would not have deprived that order of its
deterrent effect on other litigants and witnesses before him.
The objection, thus failing in the form first referred to, has, been taken before us in another, in which it merits fuller consideration, namely, that
the pissing of the sanction order before the Court has heard all the evidence, which the accused might adduce, if the trial were completed, is not
only illadvised, but also illegitimate, because the Court might change its opinion after hearing the whole. It is not shown that this argument
corresponds with any request to the District Munsif by the accused or his pleader to postpone passing the sanction order, until all the witnesses
had been examined. I however deal with the principle involved. It is supported by reference to general considerations and also to authority,
especially to Aiyakannu Pillai v. Emperor ILR (1908) M. 49.
The authorities relied on are Gendan Singh v. The. King. Emperor (1906) 3 C.L.J. 302 Emperor v. Rustonji (1902) 4 Bom. L.R. 778 and In re
Kolli Appiah (1912) 11 M.L.T. 191. But in the first case the ground of decision was not that the Court had not heard all the evidence to be
adduced at the trial, but that an. appeal against its decision at the trial was pending and the general objection to all these cases is that they relate to
magisterial orders of sanction and that therefore thewider provisions of Section 439 of the Criminal Procedure Coder, not those of Section 115(c)
of tne Civil ProcedureCode, which we are concerned,were inquestion. These cases therefore afford no guidance. The argum^ut from Aiyyakannu
Pittai v. Emperor ILR (1908) M. 49 also is inconclusive, because the question decided in that case was not, as here, at how early, but at how late
a stage the Court''s powers u/s 476 dan be exercised, the objection being that their exercise had been deferred unduly after the judgment and,
though I am unwillng to rely on implications from language used, when a different issue was under decision, it may be pointed out that the
observations of Sankaran Nair, J, at page 58 are at least consistent with the view that action may be taken at any time during the course of the trial.
Turning to the merits, I observe that the argument derives no support from the wording of Section 476. Proceedings thereunder are to take
place, when the court is of opinion that there is ground for ""enquiry""; and I do not feel entitled to introduce the requirement that this opinion shall
have been formed on the whole of. the evidence or at any particular stage in its production. The opinion has to be supplemented by ""any enquiry
which may be necessary ""; but that means only "" necessary ""in the reasonable and judicial exercise of the Court''s discretion. It has in fact bee held
that no preliminary enquiry is necessary, even when there is no evidence on record contradicting the case, in respect of which sanction on a charge
u/s 211 of the Indianpenal Code has been granted, Bdperam Surma v. Gouri Nath Dutt ILR (1893) Cal. 474 and that the enquiry need not be
held in the presence of the accused and need not include"" cross-examination by him of the witness, Chota Sadoo v. Bhoobun Chukerbutty (1868)
9 W.R.C.R.S. and Queen Empress v. Matabadal ILR (1908) A. 392 approved in Abdul Ghafur v. Raza Hussain ILR (1912) A. 257. A fortiori
an accused is not entitled as of right to insist on all his evidence beittg taken in the Substantive proceeding before sanction is granted against him.
And there is nothing in the wording of the section inconsistent with this conculsion. For it postulates, not any decision by the court that a case has
been established even prima facie, but merely its adoption of an opininon that there is ground for enquiry. No doubt that must be its opinion as
distinguished from its mere surmise or assumption and we are accordingly entitled to satisfy ourselves that it has not acted on no evidence or
perversely. But we cannot on the view I take go further and attempt to fix the quantity or nature of the material on which the Court''s opinion is to
be formed or restrict its exercise of the general discretion, which the Legislature has conferred, in the way. proposed by the accused. T. therefore
cannot accept the latter''s contention.
I would allow the Letters Patent Appeal and restore the sanction order of the District Munsif.
Sadasiva Aiyar, J.
This betters Patent Appeal is from the judgment of the learned Officiating Chief. Justice who, differing from Mr. Justice Ayling, held that the
District Munsif of Peddapuram ought not to have sent the petitioner (appellant) to the nearest Magistrate u/s 476 of the Criminal Procedure Code
to be prosecuted on a charge of perjury. The learned Judge set aside that order u/s 115, CPC and u/s 15 of the Charter Act. The Government is
the appellant before us.
During the hearing of the appeal, I threw out a strong suggestion that even when the Court taking proceedings u/s 476 of the Criminal
Procedure Code is a Civil Court, the proper section under which the High Court''s power of revision (see Sbmayajipad v. Emperor ILR (1909)
M. 48 : 19 M.L.J. 766 should be exercised is Section 439 of the Criminal Procedure Code and not Section 115, Civil Procedure Code.
Till 1902, it was assumed, without question, that the revision of such proceedings, (even when the proceedings were passed by a Civil Court)
lay u/s 439, Criminal Procedure Code. In that year, that eminent Judge, Sir Bashyam lyengar, J., sitting as a single Judge, held (see In re Chennana
Goud ILR (1902) M. 139 that he had no jurisdiction under Sections 435 and 439 of the Criminal Procedure Code to revise the criminal order in
question before him in/that case, whichi was an order granting sanction u/s 195, Criminal Procedure Code and not an order u/s 476, Criminal
Procedura Code. He then threw out the saggestion, that orders of a Civil Court passed, under that Section 195, Criminal Procedure Code, may
be revised u/s 622 of the old Civil Proceduer Code corresponding to Section 115 of the present Code. Later decisions of this Court have held that
against the order on an application for sanction u/s 195, Criminal Procedure Code successive applications to higher Courts lay in the nature of
successive appeals. However, the suggestion of that eminent Judge seems to have been accepted as a matter of practice even as regards orders
passed by Civil Courta u/s 476, Criminal Procedure Code though the question seems never to have been directly raised and decided in this Court
by a Bench. In Allahabad also till December 1902, the practice was (as in Madras) to treat applications for revision of proceedings of even Civil
Courts, made u/s 476 of the Criminal Procedure Code as falling u/s 439 of the Criminal Procedure Code and not Section 622 of the Civil
Procedure Code. But in that year Burkitt, J., sitting as a single Judge decided otherwise {Emperor v. Muhammad Khan (1902) W.N.P. 202 and
in the case reported in In the matter of the petition of Bhup Kunwar ILR (1908) All. 249 the Chief Justice and Mr. Justice Blair (Justice Banerji
dissenting) followed in 1903 the opinion of Burkitt, J.
While the inclination of my mind is to agree with the dissenting judgment of Banerji, J., who pointed out that Courts should be loath to depart
from an established practice unless they are convinced that that practice has not the sanction of law and is grossly erroneous, I do not wish to
reconsider now the correctness of the decision in In re Chennana Goud ILR (1902) M. 189 as the long practice previous to 1902 was unsettled in
that year and that unsettlement seems to have given rise to another settled practice during the last 14 years.
Taking it then that this Court has power to interfere either u/s 115, CPC or u/s 15 of the Charter Act the questions for determination are:
(1) Whether the order of the District Munsif was passed without jurisdiction or whether he acted illegally or with material irregularity in the passing
of that order ; and
(2) Whether in Section 115, Civil Procedure Code, does not apply, it is a fit case for interference u/s 15 of the Charter Act.
I might here conveniently set out the facts. The appellant was the 2nd plaintiff in O. S No. 96 of 1914 on the file of the District Munsif''s Court
of Peddapuram. When the case came on for hearing on the 15th or 16th March 1915, the 2nd plaintiff stated in the hearing of the District Munsif
during the Course of compromise negotiations in the Court-house that his land was known as "" Munnurivari Cheruvu Istuva,"" a statement which, if
true, was though not inconsistent with his claim to the exclusive right to the water of another tank put forward in the suit, a fact which the defence
could fairly rely on as making their contentions more probable than the plaintiff''s contentions. When the 2nd plaintiff was, however, put into the
box on the 18th March (two or three days afterwards), he denied on solemn affirmation that his land was known as "" Munnurivari Cheruvu Istuva.
As the District Munsif seems to have remembered the contrary statement made by the 2nd plaintiff two or three days before that, he at once drew
up proceedings u/s 476, holding that there was ground for enquiry as to whether the 2nd plaintiff had not been guilty of perjury in denying as
witness that the land was called "" Munnurivari Cheruvu Istuva.
I agree with Mr. Justice Abdur Rahim in the view that the District Munsif ought to have waited till the whole evidence had been let in before
taking proceedings u/s 476 as his action seems to have led the plaintiff''s vakil to abandon the further conduct of the Civil Suit. But it was stated by
the learned Government Pleader before us (and was not denied on the other side) that the District Munsif''s judgment against the plaintiffs has been
set aside on appeal and the suit is now pending before a different District Munsif for a full and complete enquiry. It is therefore not necessary now
to set aside the proceedings u/s 476 on the ground that the conduct of the Civil Suit might seriously suffer though, no doubt, there is still some
danger of other witnesses of the plaintiffs being scared away from giving evidence on that same point, that is, in support of 2nd plaintiffs denial.
It is argued for the respondent that the Judge ought not to have used his knowledge of what the 2nd plaintiff had said during the compromise
negotiations in arriving at his conclusion that there was a fair case for sending the 2nd plaintiff to the Magistrate. I am not prepared to accept this
contention. My views on this question have been set out by me in Lahshmayya v. Raja Varadaraja Appa Row (1912) 25 M.L.J. 624. I also agree
with the opinion of Ayling, J, in In re Kachi Madar Labbai (1911) 10 M.L.T. 47 that the words of Section 476 are very wide and that an order
under it may be based on materials which have not been strictly made legal evidence. In the present case, moreover, the accused was sent to the
Magistrate after taking the evidence of two vakils and it was therefore perfectly legal.
Section 476 of the Criminal Procedure Code does not in terms state that the Court should not send a person to the Magistrate till it had taken
the whole evidence and decide the judicial proceeding in the course of which the Court arrived at the opinion that there was ground for inquiring
into any offence (referred to in Section 195, Criminal Procedure Code) and committed before it or brought to its notice. It would, no doubt, be
improper "" in most cases to do so. In exceptional cases, as where the perjury committed by the witness called for a party is so barefaced that the
party himself represented at once to the Court that he did not mean to call further evidence in support of the perjured statement of his witness, the
Court can, in my opinion properly send the witness at once to the Magistrate. I cannot therefore accept that it shoutd be an invariable rule that no
proceedings u/s 476, Criminal Procedure Code should be taken till the conclusion of the case. In Emperor v. Rustomji (1902) 4 Bom. L.R. 778
the headnote runs "" It is not competent to a Magistrate to order the prosecution of a witness for perjury while the proceedings... are pending
before him (the Magistrate)"" and this passage looks as if the decision intended to lay down that the Magistrate had no jurisdiction to do so. The
headnote is, however, misleading as the body of the short judgment says merely that the order in that case was ""improper"" and not incompetent. I
am clear therefore that no objection on the ground of want of jurisdiction or on the ground that the District Munsif "" acted illegally "" u/s 115, CPC
can be sustained in this case. I shall next consider the objection based on the District Munsif''s having acted with "" material irregularity. "" I shall try
to clear the ground in respect of two subsidiary matters. I am inclined to think that if the parties and pleaders do not object, there is nothing
improper in a judicial officer making suggestions in the matter of compromise negotiations made in his presence and that he does not thereby
necessarily act against his duty as a judge. I am not against judicial officers suggesting compromises in suitable cases though, of course, it is
possible (as might be expected) that a few lazy judicial officers might suggest them, not in order to do good to the litigants but in order to save.,
themselves the trouble of deciding suits in the regular course. The sending by a Court of a witness to the Magistrate before the judicial proceedings
are over would be acting with impropriety which I take to mean "" irregularity "" in all but exceptional cases. Whether such irregularity was a
material irregularity "" would depend on the facts and circumstances of each case. After anxious consideration, I have come to the conclusion
(though not without hesitation) that the irregularity committed by the District Munsif in this case cannot be called ""material irregularity."" The
respondent has not alleged that he was prepared with the evidence of other witnesses in the suit to prove that the Istuva was not known as
Munnurivari Cheruvu Istuva, the arguments put forward before us on his behalf being all based on hypothetical surmises and not on any affidavits
disclosing the existence of such evidence.
The prejudice to the conduct of the civil litigation (if the other three plaintiffs in the suit are unable to conduct it on behalf of the respondent
also) might be met by the stay of the criminal proceedings till the suit is decided, a stay which would, on proper cause being shown, no doubt, be
granted by the Magistrate himself or by this Court.
I have always held the view that interference u/s 115, Civil Procedure Code, should be very strictly exercised, having regard to the opinion of
their Lordships of the Privy Council in the well known case of Ameer Hassan Khan ILR (1884) C. 6 decided thirty years ago. If Section 439 of
the Criminal Procedure Code were held applicable to this case in revision, I would not have felt so much hesitation to interfere in revision. (Mr.
Justice Ayling sitting with Mr. Justice Hannay seems to have interfered u/s 439 of the Criminal Procedure Code in a similar case, Karnam Yelluppa
v. Emperor (1914) 4 Cr. L.R. 387 the order revised having been passed by a Criminal Court).
As regards interference u/s 15 of the Charter Act that section should be resorted to in practice only where irremediable wrong would be done;
but for such interference (sea per Spencer, J. in Sambasiva Aiyar v. Ganapathy Aiyar (1914) 23 I.C. 564 and I do not think this is such a case.
I would therefore allow this appeal.
Seshagiri Aiyar, J.
I respectfully dissent from the view which has found favour with my learned colleagues.
The facts of the case are not in dispute. Both the learned Judges have condemned the course adopted by the District Munsif. The only question
is whether the proceedings were tainted with material irregularity or illegality.
I do not feel inclined to reopen the question whether proceedings taken u/s 476 of the Code of Criminal Procedure by a Civil Court is not a
criminal proceeding and as such revisable, u/s 439 of the Code of Criminal Procedure, by the High Court. In Calcutta, Allahabad and Madras, the
practice is to entertain these applications on the Civil side, Ramadhin Bania v. Sewbalak Singh ILR (1910) C. 714. In the matter of the petition of
Bhup Kunwar ILR (1903) All. 249 and In re Chennana Goud ILR (1902) M. 139. A Civil Court acting u/s 476 cannot be regarded as a Criminal
Court, as u/s 6 of the Code of Criminal Procedure only the High Court, the Sessions Court and the Courts presided over by Magistrates are
Criminal Courts.
I do not propose to examine the case law on the powers of the High Court u/s 115. I have stated my conclusion in some of the recent
judgments pronounced by me. The saying attributed to a great common law Judge that justice administered in the equity courts depends upon the
conscience of him that administers it is more than true of the powers exercised all over India u/s 115. It is a pity that the rights of the parties should
be dependent upon such an uncertain consideration. But it is no use attempting to lay down abstract propositions under the circumstances.
In my opinion, the procedure adopted by the District Munsif was highly improper. When the case was called on the pleaders and the parties
were endeavouring to effect a compromise. I do not know whether the District Munsif suggested it himself. I shall take it that he did not. In the
course of the conversation, in which the Munsiff seems to have taken part, the 2nd plaintiff made a statement, regarding the existence of a
particular Cheruvu and said that the Cheruvu was traceable in the plan filed. The compromise was not brought about. Three days after, when the
case was called on and the 2nd plaintiff was in the witness box, he denied the existence of the Cberuvu, This put out the Munsif so much that he
examined on oath the pleaders who were present when the conversation took place 3 days back and directed the prosecution of the 2nd plaintiff. I
cannot conceive of a procedure more calculated to defeat justice. But it is said we are not concerned with the result of the suit, but only with the
question whether there were prima facie grounds for taking action u/s 476. True. What are the materials on which the prosecution was directed:--
the personal knowledge of the Munsif as to what the 2nd plaintiff said and the not very consistent testimony of the two pleaders. It has to be
remembered that the direction to take action is not based on the final conclusion that the evidence of the 2nd plaintiff was false ; because the other
witnesses in the case were not examined at this stage. It was really arid in effect a prosecution for having made two contradictory statements:--one
in the casual conversation at the time of the suggested compromise and the other in the witness box. I cannot help saying that the Munsif has failed
to realise that until the case was closed, he must keep an open mind and should not try to prejudge the ease or to terrorise the parties that appear
before him. If he was anxious for a compromise or if he was informed of the possibility of an adjustment of the disputes, it was his duty to have
asked the parties and their pleaders to retire for consultation. His time ought to have been taken up with the disposal of other and more legitimate
work; I do not say that he ought not to have taken part at all in the conversation that was going on between the pleaders. But I must say that it was
no part of a Munsif''s duty to exchange conversations with the parties in a preliminary discussion about the compromise. In my opinion, the Munsif
acted both illegally and with material irregularity in importing into the consideration of the question, his knowledge of the preliminary conversation in
the case.
I am of opinion that the action of the Munsif was highly irregular, for another reason. u/s 476 of the Code of Criminal Procedure, it has been
held that the proceedings must be taken ai or immediately after the termination of the trial of the uit or case: Ayyahemnu Pillai v. Emperor ILR
(1908) M. 49. I do nOt think the Munsif was warranted in taking action before the case was closed although I do not wish to say that he had no
jurisdiction to so act. It is for this reasion, I take it, that it was held in Emperor v. Rustomji (1902) 4 Bom. L.R. 778 and In re Kolli Appiah (1912)
11 M.L.T. 191 that the action should be regarded as improper, as it was premature.
The suggestion of the learned Government pleader that it is not necessary to have legal evidence to come to, the conclusion that the accused
has not spoken. the truth does not commend itself to me. Prosecutions of this nature and sanctions ought not to be indulged in without coming to
the conclusion that there are prima facie grounds to sustain a conviction. The consolation that the man may be acquitted, if there is no further
evidence and the statement that he is being afforded an opportunity to clear his character are suggestions which I listen to with impatience. I do not
know of the state of feeling in other countries, but in this country the direction or sanction to prosecute is regarded as one of the greatest
humiliations to which a person can be subjected. It is no consolation to him that he may be acquitted, if the evidence is insufficient. I am
emphatically of opinion that before a person is asked to stand his trial, it must be fairly clear to the sanctioning authority that there is a probability of
a conviction being had. Generally, subordinate Judicial officers in this Presidency, act in this view. Fortunately, for the administration of justice,
there are not many men who would have acted in the way this Munsif had done. Still it is necessary not only to express our condemnation of the
course adopted, but to say that the action is vitiated by material irregularity and is illegal.
I agree with Abdur Rahim, J. and am for setting aside the proceedings.
In the view I have taken, it is not necessary to say whether the Charter Act enlarges the powers given u/s 115 of the CPC or not.
In the result, in accordance with the decision of the majority, this Letters Patent Appeal is allowed.