Trevelyan, J.

1. Two main questions have been argued before us. In thefirst place it is contended that the Judge had no jurisdiction to entertain theappeal, and secondly that no offence had been committed.

2. The first question turns upon the construction of Section487 of the Code of Criminal Procedure. The Sessions Judge who tried the case,Mr. Cameron had given sanction for the institution of the charge. The chargewas one under Section 210 of the Indian Penal Code for causing a decree to beexecuted against the complainant after it had been satisfied. The Munsif hadrefused sanction the Judge had given it. A prosecution was accordinglyinstituted, and the case was heard by a Deputy Magistrate, and then came up onappeal before the Judge who had given sanction.

3. Section 487 provides that, except as provided in certainof the preceding sections, no Judge of a Criminal Court or Magistrate otherthan a Judge of the High Court shall try any person for any offence referred toin Section 195, when such offence is committed before himself or is broughtunder the notice of such Judge or Magistrate in the course of a judicialproceeding.

4. In the first place there can be no doubt, we think, thatthe trial of an appeal is included in the expression "shall try anyperson." The offence which is charged was undoubtedly an offence referredto in Section 195, and the offence charged here is one of the offencesmentioned in that section. The only real question as to the applicability ofSection 487 is, whether the offence was brought under the notice of this Judgein the course of a judicial proceeding.

5. With regard to that there can be no doubt that thehearing of the appeal from the order refusing the sanction was a judicialproceeding within the meaning of the Code of Criminal Procedure. That Codedefines "judicial proceeding" as any proceeding in the course ofwhich evidence is or may be legally taken. On the appeal from the order of theMunsif refusing sanction, the Judge undoubtedly had power to take evidence, andtherefore it was; a judicial proceeding, and it was in the course of thatproceeding that the offence: was brought under his notice, because the appealwas with reference to the refusal to sanction the prosecution. When thatoffence is established, Section 487 applies, and the Judge had no jurisdictionto entertain the appeal.

6. With regard to the second objection, inasmuch as therewill be a fresh trial, we think it undesirable to prejudge the question now. Itwill be open to the defendant to argue it when the appeal is heard and all thefacts have been gone into (see next case). Under the circumstances we think itwould be better that the appeal should be heard in this Court, and we directthat it be so heard, and that notice thereof be given to both parties and tothe Magistrate. The prisoner to be released on bail to the satisfaction of theMagistrate pending the hearing of the appeal.

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Madhub Chunder Mozumdarvs. Novodeep Chunder Pundit(10.11.1888 - CALHC)