Pigot, J.@mdashThis case arises either u/s 195 or u/s 476 of the Criminal Procedure Code. If u/s 195, and for myself I do not think it possible that a general sanction issued forth of his own motion by the magistrate irrespective of any application for sanction to prosecute can be contemplated by that section, then we think it is a case in which sanction ought not to have been granted. If it is a case u/s 476, it is laid down by a decision In the matter of the petition of Khepu Nath Sikdar v. Grish Chunder Mukerji ILR 16 Cal. 730 differing apparently from the case of Queen-Empress v. Rachappa ILR 13 Bom. 109, that this Court has jurisdiction to interpose in the case of an order made by a Court under that section, If the Court has jurisdiction to interpose, and we are here dealing with a rule which has been granted in this Court, then it appears to us that the Court must have the power to determine whether the discretion given by that section has or has not been properly exercised. The discretion is given by the words "such Court after making any preliminary inquiry that may be necessary, may send the case for inquiry or trial." It is therefore for the Court acting in the matter in the exercise of its discretion to determine whether or not to make such preliminary inquiry. There may be cases in which at any rate it is plain that such an inquiry ought to precede the proceedings contemplated by the section. We think this is one of them on the face of it. Upon the order of the Deputy Magistrate, which has been read and commented upon before us, the case is surrounded with difficulties. We do not think that the order was rightly made as having been made upon the impression produced by such evidence as was in this case heard by the Deputy Magistrate. We think that in the circumstances of this case he ought to have made an inquiry before exercising his powers u/s 476, and as he has not done so, we must set aside his order and make the rule absolute.
2. As I have stated, with reference to what I have said upon Section 195, I simply expressed my own individual opinion. Mr. Justice Rampini is of opinion that a general sanction may be given u/s 195; but our judgment that if the sanction issued u/s 476, it must be revoked, and if u/s 195, it must be set aside, is common to us both.
