The distinction between substantive right and procedure in revoking sanction under the old and new Codes of Criminal Procedure.

Victor Murray Coutts Trotter, C.J.

1. In this case the Sub-Magistrate of Kumbakonam gave leave to the petitioner before us, one Ramakrishna Aiyar, to prosecute the respondent, a woman called Sithai Ammal under Section 211 of the Indian Penal Code for bringing against him a false charge of dacoity. The respondent thereupon went before Mr. Shield, who was the then District Magistrate of Tanjore, and he passed an order on the 11th September, 1923, the new Code of Criminal Procedure having come into force on the 1st of the month. The learned District Magistrate came to the conclusion that there was nothing for him to do. He was asked to revoke the sanction and he said: "I am not going to revoke the sanction, there is nothing in it." It is admitted that the complaint had been filed before the 1st of September, 1923. In that view we have found from the records it was wrong--but that being his view and he presumably not being properly instructed on the facts--he supposed that no complaint had been filed before the new statute came into operation. He first outlines the procedure relating to such a complaint and says it would be regulated by the new Code. In point of fact, as we have already said, he was misinformed about that and the complaint had in fact been filed before the coming into operation of the new Code. Mr. Shield having done nothing, the matter was brought before his successor as District Magistrate of Tanjore, Mr. Hood, and Mr. Hood, after pointing out the incorrect assumption on which his predecessor had acted, disallowed the prosecution and revoked the sanction that was granted, rightly holding that he was not revising the order of his predecessor Mr. Shield, because the petition was not considered by Mr. Shield and there was no order of M Shield to revise. It is now sought to be said before us that that action of Mr. Hood was illegal and without jurisdiction and that the sanction granted by the second class Magistrate of Kumbakonam must stand. It is best to begin with a citation of the material sections of the old and new Codes. Under the old Code of Criminal Procedure, Section 195, the machinery for dealing with certain offences of which the one in question in this case was one that, before the prosecution could be launched, it was an essential condition precedent either that the previous sanction of the Court should have been obtained obviously by one of the parties, or that the Court should suo motu make a complaint, and by Sub-section (6) it is provided that any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate ; and no sanction shall remain in force for more than six months from the date on which it was given, provided that the High Court may for good cause shown extend the time.

2. The new Code envisages an entirely different state of things and for all practical purposes it abolishes sanction entirely. It provides a substitute, for the condition precedent is not to be sanction but a complaint in writing by the Court before which such proceeding as the matter arose out of is tried or by the Court to which the Court is subordinate. The argument put before us is this, that as the complaint in this case was filed before the coming into operation of the new Code and as the sanction required by the old Code was dispensed with and abolished by the new Code, therefore it abolished the power to revoke the sanction which was conferred by the old Code ; and it is said that that must be so, because this power to invoke the Court to interfere with the sanction of the Court below is not a right vested in anybody but a mere matter of procedure. That undoubtedly was definitely held by a bench of this Court in Nataraja Pillai v. Rangaswami Pillai (1923) ILR 47 M 384 : 46 MLJ 274. It is said that there is another authority in favour of the present appellant, which is Sesha Aiyar v. The Public Prosecutor (1923) 19 LW 463. We do