O''Kinealy, J.@mdashThis is a rule calling upon the District Magistrate and: upon the opposite party to show cause why the sanction granted to prosecute the petitioners should not be set aside. It appears that a charge of causing grievous hurt was made against the opposite party by Ram Nath Chamar, one of the petitioners before us, and that the person accused in that case was discharged by the Deputy Magistrate, under sec. 253 of the Code of Criminal Procedure, on the 20th August 1895, In his judgment, the learned Deputy Magistrate used strong language, charactering the complaint as false and as got-up. Then about four months after, an application was made on behalf of the persons accused and discharged, for sanction to prosecute the petitioners now before us, for bringing a false charge. Upon the petition, the learned Deputy Magistrate made the following order :--
This case was at best a mere suspicious one. It was merely my theory that Kamal Sing was instigator, and not my conviction. I therefore consider it unsafe to sanction prosecution under sec. 211 of the Indian Penal Code.
2. Against this order, the opposite party moved the Sessions Judge, asking him to grant the sanction which had been refused by the Deputy Magistrate. His petition is dated the 10th January 1896, and on that same date the learned Sessions Judge, without giving any notice to the petitioners before us, against whom the sanction was asked, made an order sanctioning their prosecution under sec. 211 of the Indian Penal Code.
3. It is now urged before us that the order of the Sessions Judge is an improper order, and ought to be set aside.
4. We are of opinion that the contention of the petitioners is correct. The sole ground upon which the learned Sessions Judge based his order granting the sanction is that the learned Deputy Magistrate in his judgment, dismissing the case, expressed the opinion that it was a false and got-up one, and if that was so, the person complained against was entitled to the sanction to prosecute that he asked for. But we must bear in mind that the learned Deputy Magistrate who delivered the judgment was himself of opinion, when the sanction to prosecute was applied for, that the case was not one in which such sanction ought to be granted.
5. Mr. Apcar for the opposite party in showing cause has called our attention to the passage in the learned Sessions Judge''s order, in which the learned Judge says :--" The case is such a very clear one on the record, that I do not consider it necessary to issue any notice, " and he contends that the order of the learned Sessions Judge must be taken to be based upon the evidence that was adduced in the case which was found to be false, and that it is not competent to us to set aside his order without considering that evidence. But it appears on a reference to the learned Sessions Judge''s record that it consisted of the petition made to him and of certified copies of the Deputy Magistrate''s order in the original case, and his Order refusing sanction, and it does not appear that the record of the original case had been sent for, and was before the Sessions Judge. Having regard to the view that the learned Deputy Magistrate took up the matter when he refused the application for sanction, and having regard also to the great delay in making the application for sanction, and to the fact of the learned Judge''s order being made without any notice to the petitioners, we are clearly of opinion that that order is not a proper order, and we Accordingly make the rule absolute, and set aside the learned Judge''s order granting the sanction asked for.
