The Judgment of the Court was as follows:—
Costello, J.:— The applicant Mahomed Boyatulla was a witness on behalf of the prosecution in the case, Emperor v. Taizuddin Mandal and Tara Sirdar who were charged under secs. 46 and 61 of the Bengal Excise Act (Act V of 1909) in the Court of the Sub-Deputy Magistrate of Naogaon in the District of Rajshahi. On the 22nd August 1929 these two accused persons were convicted on the charges under the sections I have mentioned—read with sec. 109, I.P.C, and sentenced to 6 months' rigorous imprisonment. From that conviction there was an appeal to the District Magistrate of Rajshahi which was dismissed. During the pendency of the appeal the Superintendent of Excise and Salt applied to the Sub-Deputy Magistrate on the 5th September 1929 making a complaint against the present Petitioner for having committed perjury in the course of the evidence which he had given in the case. On the 1st of October 1929 the Sub-Deputy Magistrate called upon this man Mahomed Boyatulla to show cause why he should not be proceeded against under sec. 193, I.P.C After that Mahomed Boyatulla filed an application for showing cause on the 22nd October 1929. The Sub-Deputy Magistrate heard the pleader on behalf of Mahomed Boyatulla and he deferred his decision. On the next day, that is, the 23rd October he made an order directing a formal complaint to be lodged against Mahomed. Boyatulla. As a result of that order a prosecution was instituted against Mahomed Boyatulla under sec. 193, I.P.C, in the Court of the Sub-Divisional Magistrate of Naogaon. The case was adjourned on the 21st November 1929, by reason of the accused having filed an application under sec. 526, Cr. P.C, till the 5th December 1929. In the meantime the accused filed an appeal against the order of the Sub-Deputy Magistrate and that appeal came on for hearing before the District Magistrate of Rajshahi, Mr. S.K Ghosh. He dismissed the appeal summarily on the 22nd November 1929 and in doing so he made the following order: “Heard learned Advocate. I distinctly remember hearing the appeal when the matter came up after the case had been disposed of by the lower Court. The Petitioner was a prosecution witness in that case and I very clearly remember that in reading through his evidence I was struck with the mass of contradictory statements it contained and I think I made a note of this in passing orders. I am not prepared to interfere at this stage, specially as the very matters that will be urged before me are the proposed subject of trial in the lower Court. Consequently this appeal is summarily dismissed.” It is against this order that the present proceedings are directed and it is said on behalf of the applicant that the learned District Magistrate of Rajshahi was wrong in law in not fully hearing the appeal which was made to him against the order of the Sub-Deputy Magistrate. It appears from the order which I have just quoted that what the learned District Magistrate did was to act upon the knowledge which he had acquired while hearing as an Appellate Court in the Excise case. He had according to his own view been sufficiently informed of the evidence which this man Boyatulla did give and he made this order upon that basis. He seems to have taken the view that it was undesirable that he should hear the matter any more because the matters which would be placed before him should more properly be discussed when the accused was actually put upon his trial. It was argued before us that an appeal under sec. 476B is of a different nature from ordinary appeals and that therefore the provisions of sec. 421, Cr. P.C, did not apply. We are unable to take that view of the matter. The position seems to be this that until sec. 476B was added to the Criminal Procedure Code by Act XVIII of 1923 there was no right of appeal at all against an order made under the provisions of sec. 476 and that the only remedy of an aggrieved person was to raise any question that he might desire to raise in a proceeding in revision. Then the right of appeal having been given by sec. 476B we think that appeals under that section are subject to all the provisions applicable to criminal appeals as laid down in sec. 419 and the following sections. That being so, it follows that the provisions of sec. 421, apply to appeals of this description just as to ordinary criminal appeals. It was therefore open to the District Magistrate to have dealt with this matter summarily. But in this particular instance there seems to have been some irregularity in that the District Magistrate purported, to be acting not on the materials before him in the appeal under sec. 476B but in the light of what he himself had learnt in connection with the appeal in the other case. Undoubtedly therefore there was some irregularity in the proceedings before the learned District Magistrate. We have however looked into the whole of the record in this case and we think, having regard to all the circumstances, that it is not a case in which we ought to interfere with the order made by the Sub-Deputy Magistrate. I have already said in previous cases of this kind that this Court ought to be very reluctant to interfere with the order of this character where the Court which makes the order seems to be fully conversant with all the facts of the case: and if this Court is satisfied from the materials before it that the case is one where there ought to be a prosecution it does not seem necessary or even desirable that we should send back the case to the Court which heard the matter on appeal merely because there has been some irregularity. We think that in the present instance there is a prima facie case against Mahomed Boyatulla for having wilfully given evidence some of which is untrue and therefore we are of opinion that it is expedient in the interests of justice that he should be put upon his trial to answer the charge under sec. 193, I.P.C We accordingly discharge this Rule.
Suhrawardy, J.:— I agree.
S.C.M