JUDGMENT 1. The facts which led up to the present application are briefly as follows:-- One Khirode Sundari Debi applied to the District Judge for probate of a document purporting to be the Will of her deceased mother. The application was opposed by Aprokash Chandra Mukerjee, brother of the alleged testatrix. The case was transferred for trial to the Court of the Subordinate Judge, who held that the Will was not genuine, and his decision was upheld by the High Court in appeal. Aprokash Chandra Mukerjee then applied for sanction to prosecute Jogendra Nath Mukerjee, a pleader of the Judge's Court, who had given evidence in support of the Will, the offences charged being under secs. 467, 471 and 193 of the Indian Penal Code. The application was refused both by the Subordinate Judge and by the District Judge, but was granted by the High Court on the 14th June 1904. The sanction was explicitly given to Aprokash Chandra Mukerjee. 2. On the day before the expiry of the period of six months for which the sanction could be in force, a person named Sarat Chandra Banerjee, who claimed to have purchased a share of the interest inherited by Aprokash Chandra Mukerjee, from his sister, petitioned the District Magistrate to issue process against Jogendra Nath Mukerjee upon the sanction to which we have already referred. 3. The District Magistrate transferred the petition to a Deputy Magistrate with a direction to record the complaint and issue process. The latter officer complied with that direction, and the accused then obtained the present rule upon the District Magistrate as well as the complainant to show cause why the prosecution should not be quashed on the grounds; first, that the prosecution could not be initiated on the application of Sarat Chandra Banerjee who was not the person to whom sanction had been granted; secondly, that the District Magistrate acted illegally in making a direction to the Deputy Magistrate to issue process. 4. Mr. Dunne in showing cause has contended that the law does not provide that the sanction to prosecute must be given to some particular person who alone can avail himself of it; and that when once a sanction bas been given by the proper Court, it is competent for the Magistrate to proceed proprio motu under sec. 190 (1) (c) of the Code of Criminal Procedure. 5. 190 (1) (c) of the Code of Criminal Procedure. 5. In our opinion, this is not a new question, but one which has been already settled by authority. In the case of Giridhari Mandal v. Uchit Jha ILR 8 Cal. 435 (1881), it was observed by Pontifex and Field, JJ., that the sanction to prosecute contemplated by the Code of Criminal Procedure is not a direction to prosecute, inasmuch as it leaves a private prosecutor free to exercise his own unfettered discretion as to whether he will proceed or not. In the case of Baperam Sarma v. Gouri Nath ILR 20 Cal. 474 (1892), the learned Judges after intimating that the sanction in the case before them had been given to a contemplated prosecution by a definite person, proceed as follows:--"It does appear to us both that a sanction for prosecution under sec. 195 is not intended by the Code, as it is sometimes treated as being intended, as given in the abstract, not to any intended prosecutor, not on any application, but a sanction in the abstract which practically may float about the world like a bit of thistle-down until it comes in contact with some possible prosecutor." In the mutter of Banarsi Das ILR 18 All, 213 (1896), Aikman, J., sitting alone, expressed the opinion that a sanction to prosecute under sec. 195 of the Code presupposes au application for sanction and should not be granted otherwise. In Kali Kinkar Sett v. Nritya Gopal Roy 8 C.W.N. 883 (1904), it was held that where sanction was given to a certain person to prosecute, the sanction could not be utilized by another person alleging himself to be the agent of the former, except upon recorded proof of his authority, and as there was no such proof, the prosecution was quashed. 6. In the case with which we are now dealing, Sarat Chandra Banerjee does not allege any authority from Aprokash Chandra Mukerjee, He came forward as a complainant as Aprokash Chandra would not prosecute. 7. In Durga Das Rakhit v. Queen-Empress ILR 27 Cal. 820 (1900) decided by Prinsep and Stanley, JJ., it was observed, "Sanction under sec. 195, Cr. 6. In the case with which we are now dealing, Sarat Chandra Banerjee does not allege any authority from Aprokash Chandra Mukerjee, He came forward as a complainant as Aprokash Chandra would not prosecute. 7. In Durga Das Rakhit v. Queen-Empress ILR 27 Cal. 820 (1900) decided by Prinsep and Stanley, JJ., it was observed, "Sanction under sec. 195, Cr. P.C., should be given only on application made for it by some person who may desire to complain of the particular offence, and whose complaint could not be entertained without such sanction." And further "It is sufficient at present to repeat that sanction under sec. 195 was given proprio motu by the Deputy Collector, and without application for it by any person desiring to make a complaint regarding these offences. As to what followed, we do not mean to say that the District Magistrate was not competent under sec. 190 (1) (c) to take cognizance of the offence but as the matter was then before him, he was competent to do so only on sanction properly given and there was no proper sanction." 8. The only case which has been cited to the contrary as directly bearing on the question is Empress v. Nipcha ILR 4 Cal. 712 (1878) where the learned Judges say that it was competent for the Magistrate to take up the case, although the person to whom sanction was given did not avail himself of it. But that was clearly an obiter dictum, as the Sessions Judge had acquitted the prisoners on the merits apart from the question of the legality of the Magistrate's proceedings. 9. The conclusion at which we arrive is that a sanction expressly given to a particular applicant cannot be availed of by some other person against that person's wish and without his authority, and that the Magistrate acted in this case illegally in accepting and acting upon the complaint of Sarat Chandra Banerjee. 10. We, therefore, make the rule absolute on the first ground and direct that the prosecution be quashed. It is unnecessary for us to express any opinion regarding the second ground stated in the rule.