Narayan G. Chandravakar, Kt., Acting C.J.
1. The petition before us has been argued at length and with considerable force by Mr. Robert-son and we have had all the assistance that was necessary to enable us to arrive at a satisfactory decision. The application is made under the following circumstances. In a criminal trial it was deposed by the Deputy Superintendent of Police, Dharwar, that the present petitioner who is a pleader in that district and who appeared for the defence in that case had been at Naiknur on the 20th of July. The pleader went into the witness-box and deposed on the other hand that he was not present at Naiknur on that date. It is not necessary to what the result of that criminal trial was, but the Government Pleader at Dharwar applied subsequently for sanction under 195 of the Criminal Procedure Code to prosecute the pleader for the offence of perjury in that he had made the statement that he had not been at Naiknur on the 20th of July deliberately knowing it to be false. It appears that notice to show cause why sanction should not be granted under Section 195 was issued by the Sessions Court to the pleader who put in his written statement and then with the consent of both the Government Pleader and the petitioner before us, affidavits and counter-affidavits were put in. The affidavits put in in support of the application for sanction included one from the Deputy Superintendent of Police, Dharwar, and also one from the Deputy Educational Inspector in that district. The affidavits put in on behalf of the petitioner went to show that he had been at Dharwar on the 20th of July doing his professional work in the Court and that he could not have been at Naiknur on that day. The learned Sessions Judge having these affidavits before him affidavits which had been put in with the consent of both the parties) thought there was a prima facie case and that he ought to leave the question of assessing the value of the evidence to the Criminal Court which would try the case. Accordingly he granted sanction.
2. That order has been assailed before us in this appeal and we are asked to hold that the learned Sessions Judge has passed his order on evidence which was legally inadmissible.
3. It is true that there is no section in the Code of Criminal Procedure which warrants the admission of affidavits as evidence in proceedings of the present character, but, whether on that account the order of the learned Sessions Judge granting sanction under Section 195 should be revoked, is another question. For that purpose it becomes necessary at the outset to examine the provisions of Sections 195 and 476 of the Criminal Procedure Code, because both those sections must be read together in order to find out the intention of the Legislature. Under Section 195 all that the Criminal Procedure Code prescribes is that the sanction of a Court is necessary in certain cases for the trial of certain offences under the Indian Penal Code. The section not say upon what materials and what evidence the Court should act before either granting or refusing sanction.
4. In Section 476 the Legislature provides that the Court acting suo motu may send the case for inquiry by a Criminal Court after making such preliminary inquiry as may be necessary, in other words, the preliminary inquiry may be made or may not be made. In the present case the learned Sessions Judge has not acted under Section 476. He has acted under Section 195.
5. Now under Section 195 there is a discretion vested in the Court which is asked to grant a sanction. That discretion must be exercised no doubt judicially. There must be some ground on which the Court can act in granting sanction. But it is for the Court to determine in the exercise of its judicial discretion whether the case is one which calls for an inquiry by a Criminal Court.
6. Now in this case supposing no affidavits had been made and the Government Pleader had merely come before the learned Sessions Judge and stated that he had evidence in his possession to prove that the present petitioner had committed the offence of perjury, and if the learned Sessions Judge had granted sanction, could it have been said that the discretion had been exercised erroneously But apart from the evidence of the affidavits, if the Government Pleader had informed the Court that he had the evidence of respectable witnesses prepared to prove the falsity of the pleader's statement and if the learned Sessions Judge under the circumstances had thought that the matter was one which called for inquiry in a Criminal Court, then, I think, the learned Sessions Judge would have been quite within his jurisdiction and quite within his discretion, and if he had acted under those circumstances then this Court sitting as an Appellate Court would have found it difficult to hold that the discretion had been wrongly exercised. If, instead of confining himself to the four corners of the jurisdiction and discretion vested in him, the Sessions Judge admitted affidavits and that with the consent of the parties, can it be said that the discretion has, been erroneously exercised or exercised in such a manner as to warrant our interference with the order of the learned Sessions Judge upon the ground that it is illegal? The Judge was not called upon to take any evidence at all. The Criminal Procedure Code does not say that in granting sanction under Section 195 the Court must take evidence. If the Court granting sanction were to take evidence, then it would turn itself into a Court trying the criminal case, whereas the question under Section 195 is whether there is a prima facie ground for sanctioning a prosecution. That is the reason why the Criminal Procedure Code has left the matter at large, subject to the judicial discretion of the Court which must be exercised with care and caution.
7. If the affidavits have been admitted illegally, all that can be said is that the illegality amounts to a mere irregularity and under Section 537 it is impossible for us to say that there has been any failure of justice so far as the purposes of Section 195 are Looking at it from that point of view I think that the mere admission of the affidavits cannot affect the merit of this case for the purposes of Section 195.
8. We cannot shut our eyes to the fact that there is a body of evidence which the Government Pleader at Dharwar is prepared to bring forward for the purpose of proving that the petitioner has committed perjury and that his statement is false. It does seem that an inquiry is necessary in the interest k of public justice. Whether that evidence will be believed by the Criminal Court which will try the case is another question, and although the learned Sessions Judge was not strictly within his jurisdiction in admitting the evidence on affidavits, he was certainly within his jurisdiction in exercising his discretion in the manner he has exercised it, and that for the reasons I have stated.
9. On these grounds the appeal must be dismissed.
10. We are asked by the learned Counsel for the petitioner to make an order that should the Magistrate, who will inquire into the case, come to the conclusion that there is a prima facie case made out as against the petitioner, he should be directed to commit the cafe to the Sessions Court. It is unnecessary for us to make any such order, because, we feel sure that the Magistrate in question will take that into consideration, having regard to the status of the petitioner and the importance of the case.