The Appellate Court has the inherent power to take evidence before granting or refusing sanction.

Sadasiva Ayyar, J.

1. Sanction was granted by the Second-class Magistrate of Avanashi to prosecute the petitioners under Section 198, Indian Penal Code, because their evidence before him as committing Magistrate in a murder case was opposed to what was alleged to have been their statements taken by the police at their investigation. There can be no doubt that if the statements before the police were properly proved either before the Magistrate, when he performed the duty of a committing Magistrate in the murder case, or before him when he was inquiring into this sanction petition, he had sufficient materials on which to base a grant of sanction for the prosecution of petitioners for an offence under Section 193 so far as the statements made before him were concerned, no separate sanction being necessary to prosecute the petitioners for the perjury in the alternative committed by them in their statements to the police: see In re Fakir Mohideen (1909). 5 M.L.T., 855.

2. There seems to have been an appeal from the Second-class Magistrates order granting sanction to the District Magistrate, who in a short order refused to revoke the sanction. There was an application to the Sessions Judge, as the appellate authority over the District Magistrate, to revoke the sanction which was taken to have been a sanction granted by the District Magistrate himself, because he refused to revoke the sanction granted by the Second-class Magistrate. The learned Sessions Judge evidently thought that the Second-class Magistrate did not act upon sufficient materials, because the statements alleged to have been made before the police had not been legally proved to have been so made; so, he took the statement of the police officer who held the inquest, and on that police officer saying that he correctly recorded the statements as found in the inquest report he ordered the prosecution of the petitioners. Then, as the appeal late authority over the Sessions Judge, this application is now made before us to revoke the sanction which must be taken to have been granted by the Sessions Judge.

2. Only three questions were argued before us, the other points taken in the revision petition being clearly unsustainable. Those three points are:

(2) The Sessions Judge had no jurisdiction in cases under Section 195, Criminal Procedure Code, to remand or take additional evidence;

(5) The learned Judge had no jurisdiction to grant a fresh sanction himself"; and

(6) The second accused in S.C. No. 15 of 1919 having been acquitted and the learned Judge in that case having held that a substantial portion of the case was concocted and eye witnesses substituted, that is not a tit case for sanction.

3. As regards the first point, Rama Aiyar v. Venkatachella Padayachi (1907) I.L.R., 30 Mad., 311 and Krishna Reddy v. Emperor (1910) I.L.R., 33 Mad., 90 do seem to contain observations laying down the following propositions: (1) that an application to the Appellate Court to grant or revoke a sanction refused or granted by the lower Court is in the nature of an appeal; (2) that in the inquiry into such an application made to the Appellate Court, the Appellate Court has no power to call for fresh evidence (to be taken by the lower Court and sent on to the Appellate Court) for consideration in deciding the so-called appeal and that the Appellate Court has not even got the power to take fresh evidence itself as such power is granted to an Appellate Court only under Section 428, Criminal Procedure Code, in cases falling under the chapter in which Section 428 occurs.

4. I am myself inclined to hold (1) that the application to the Appellate Court to revoke or grant a sanction granted or refused is not an appeal, but an original application; (2) that, it having been held that, though Section 195, Criminal Procedure Code itself does not expressly give power to the Court to which an application is made for sanction to take evidence, that Court has an inherent power to take such evidence before