Authored By : Herbert Holmwood, Herbert William CameronCarnduff

Herbert Holmwood, J.

1. The question which arises upon this Rule is whether theprovisions of Article 154 of the Limitation Act are applicable to proceedingsunder Section 195 of the Code of Criminal Procedure or, in other words, whetherthat Section grants a right of appeal as laid down in Section 404 of the Code.

2. Now Section 404 of the Code states very precisely that noappeal shall lie from any judgment or order of the Criminal Court, except asprovided for by this Code or by any other law for the time being in force.

3. In order, therefore, to give a right of appeal, Section195 must contain, in our opinion, within itself a distinct declaration thatthere is a right of appeal, and we can find no such declaration eitherexpressly or by implication. It is true that a Full Bench of the AllahabadCourt in the case of Hardeo Singh v. Hanuman ILR(1903) All. 244. held, inanswer to an academic question, that the expression in Section 139 givingcertain powers to a Court of appeal raised an inference that the Legislature inreferring to a "Court of appeal" in connection with Section 195Sub-Section (6), regarded the application to be made under that sub-Section asan application made to a Court of appeal, and, therefore, in the nature of anappeal. But the Full Bench went on to say: "It does not appear, however,to us at all material by what name the application is called in pursuance ofwhich the Appellate Court sets aside an order for sanction, and gives sanctionunder the provisions of Section 195."

4. The Allahabad Court had not before it this question oflimitation, and this question is the only question upon which the designationof the proceeding under Section 195 could be of any importance whatever, and itis, therefore, solely in connection with this point of limitation that we areconcerned with it.

5. There is another ruling, to which we have been referred,in Muthuswami Mudali v. Veeni Chetli ILR(1907) Mad. 382. in Madras. This isalso a ruling of a Pall Bench of that Court in which the question was decidedwhether on revocation of a sanction by a lower Appellate Court the partyaggrieved could proceed to the High Court in the same way as it could if therehad been a refusal of sanction: and the Full Bench held that the revocation ofsanction was precisely the same thing as a refusal of sanction, and that thesame right of proceeding to the authorized Appellate Court, as laid down inSection 195, was given to the party aggrieved. In coming to this decision theFull Bench has somewhat loosely made use of the expression "right ofappeal," and this has been used throughout the judgment; lb at it does nottouch the point before us, and for the purposes of that decision it did not inthe least matter whether the Full Bench made use of the words "right ofappeal" or right of petitioning for sanction or revocation of sanction.

6. The only case reported which deals with the matterdirectly is the case of Hari Mandal v. Keshab Chandra Manna (1912) 16 C. W. N.903. to which one member of the present Bench was a party. It is there laiddown that, inasmuch as an application under Sub-section (6) of Section 195 ofthe Criminal Procedure Code is not an appeal, within the meaning of Sub-section(2) of Section 22 of the Bengal Civil Courts Act, the Court to which anapplication to revoke a sanction or grant a sanction is made cannot transferthe case to a Subordinate Judge. This case perhaps does not cover the wholeground, but it certainly s authority for the view that an application underSection 195 is not an appeal within the meaning of Section 401. It had alreadybeen decided in a sense by another Bench of this Court in Ham Charan Talukdarv. Taripulla (2) and I may mention that the Criminal Bench of this Court, overwhich I have had the honour to preside for the greater part of the last twoyears, has decided, on more than one occasion, that an application underSection 195 is not an appeal, although that was not decided with regard to thisquestion of limitation. But as this is a question of limitation, it has merelyto be stated that there is a doubt as to whether this is an appeal or not togive the applicant the benefit of the longer period. That is a rule which hasbeen laid down by Lord Esher in the case of In re North. Ex parte Hasluck[1895] 2 Q. B. 264., and it is a rule which has always been followed in thisCourt and is cited in Gopal Lal Sahai v. Bahorni (1911) 15 C. L. J. 120.

7. Speaking for myself, I think that the considerations setout by Knox J. in the case of Mehdi Hasan v. Tota RamILR (1892)All. 61. are ofextreme force and lay down the correct view of the Law, but it is onlynecessary to hold, although we do not so hold, that the-re is any doubt on thesubject, to give the applicant the benefit of the law of limitation. While,therefore, we have no doubt in our own minds that there is no appeal underSection 195 and that it is a matter of revision, we have no hesitation inmaking the Rule absolute, and directing that the learned Judge in the Courtbelow should deal with the matter as if there was no limitation at the time ofhearing the application.

8. The stay of the charge under Section 342 is no longernecessary, and may be discharged, but stay of the trial under Section 211 will,of course, abide the result of these proceedings. The Rule is made absolute,and the case remanded to the lower Court.

Herbert William Cameron Carnduff, J.

9. I agree. Sub-section (6) of Section 195 of the Code ofCriminal Procedure, 1898, provides that any sanction given or refused underthat Section may be revoked or granted by the higher authority indicated. Ithink that this language is such as to confer, not a right of appeal on theperson aggrieved by the grant or refusal to the higher authority, but adiscretionary power of interference on the higher authority. What is given isnot a right of appeal from below, but power to intervene, if thought advisable,from above.

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