The Judgment of the Court was as follows:—

Henderson, J.:— This is a Rule calling upon the District Magistrate of Nadia to show cause why the conviction of the first Petitioner under sec. 181, I.P.C and that of the second Petitioner of the abetment thereof should not be set aside.

One Nani Gopal Dutta, uncle of the Petitioner No. 2, insured his life in December, 1934. He died in April, 1935. In connection with the claim, Petitioner No. 1 swore a false affidavit about the age of the deceased before an Honorary Magistrate of Chuadanga. On receipt of an anonymous letter the suspicion of the company was aroused. A police investigation ensued and as a result the Petitioner No. 2 and an agent of the company were committed to the Court of Sessions on a charge in connection with the fraud: they were acquitted. This prosecution amongst others was started with regard to offences which were alleged to have been committed in connexion with this false claim.

The Rule was granted on ground No. 1 attached to the petition which is in the following terms:—

“For that the Court below ought to hare acquitted your petitioners, holding that the elements necessary to constitute an offence either under section 181 or section 181 read with sec. 109 of the Indian Penal Code were not proved against the petitioners.”

Briefly, Mr. Chatterjee argued in support of the Rule that this affidavit, even though false, is not within the terms of sec. 181, I.P.C The question depends upon the meaning to be attached to the words “legally bound by oath or affirmation to state the truth.” Under sec. 43 a person is said to be legally bound to do whatever it is illegal for him to omit to do. The prosecution has therefore to establish that it would have been illegal for the first Petitioner to refuse on oath to state the truth about the age of the deceased to the Honorary Magistrate. Under sec. 14 of the Oaths Act, a person giving evidence on any subject before any Court or person hereby authorised to administer oaths or affirmations shall be bound to state the truth on such subject.

Mr. Chatterjee contended that this affidavit is purely a voluntary statement made for the satisfaction of the Directors of the Insurance Company. He refers us to the decision of the Madras High Court in Kotha Subba Chetti v. The Queen (1). In that case certain persons had been convicted for making false statements in an enquiry into the conduct of a pleader under the provisions of the Legal Practitioners Act. The third accused was the pleader himself. The learned Judges held that inasmuch as it was not competent for the Court which conducted the inquiry to take a statement from him on solemn affirmation, he was not legally bound to speak the truth.

On behalf of the Crown the learned Deputy Legal Remembrancer relied on some provision in the contract between the Insurance Company and the deceased which would make the affidavit evidence. The contract was not produced. It is therefore impossible for us to say Whether there was anything in it which would entitle us to hold that the affidavit is evidence within the meaning of sec. 14 or that the Petitioner No. 1 comes within the terms of sec. 5(a) of the Oaths Act. On the record Mr. Chatterjee's explanation is very probably correct and, if it is correct, there can be no doubt that no offence was committed. The prosecution did not really take proper steps to make out a case.

The Rule is accordingly made absolute, the Petitioners' conviction and sentences are set aside and they are discharged from their bail.

Khundkar, J.:— I agree. Sec. 181 requires the offending statement to be made to a public servant or other person authorised by law to administer an oath or affirmation. In order to ascertain what public servants or other persons are so authorised, one has to go to sec. 4 of Act X of 1873 (The Indian Oaths Act). That section provides that all Courts and persons who have by law or consent of parties authority to receive evidence are Courts or persons authorised to administer oaths or affirmations. The argument advanced on behalf of the Crown raises this question: Was the Honorary Magistrate before whom the accused swore this affidavit acting as a Court or person clothed with power to receive evidence? According to the Crown he was in this instance a Court which was receiving what by consent of parties was evidence. Now evidence must have the meaning attaching to it under sec. 3 of the Indian Evidence Act and it follows that in order to come within the definition, the statement or the document would have to be such as a Court would receive in a judicial proceeding. If the statement or document were inadmissible in such a proceeding, it would not be evidence. The argument for the Crown assumes that the parties had agreed that this affidavit would be receivable as evidence of the age of the deceased in any possible litigation regarding the policy. This is a large assumption. In the absence of anything to the contrary it would be unreasonable to suppose that judicial proceedings were contemplated by either party when the policy money was claimed. The Insurance Company had asked for the affidavit probably for no other purpose than that of satisfying itself about the age of the deceased. The agreement upon the existence of which the Crown relies is an anterior agreement between the Insurance Company and the policy-holder and as my learned brother has pointed out no such agreement is forthcoming, nor is there anything to indicate that before the policy was issued it was stipulated that on the death of the deceased such an affidavit would be sworn and would be good evidence of age in any future judicial proceeding to which a claim for the policy money might give rise.

It is doubtful whether in the ordinary course such an affidavit would necessarily be receivable in a judicial proceeding as evidence to prove the age of the insured. It might perhaps, subject to certain conditions, be admissible under sec. 32 of the Indian Evidence Act if the deponent were dead, or if his attendance could not be procured. It might also perhaps be receivable as corroboration under sec. 157 of the deponent's oral testimony. But in such cases the admissibility of the document would depend upon the happening of conditions and events. Apart from such conditions and events the mere swearing of the affidavit did not make the statement contained therein a piece of evidence which a Court would be bound to admit in a judicial proceeding. It follows that in receiving that statement the. Honorary Magistrate was not receiving something which was intrinsically evidence and was therefore not acting in the exercise of any authority to receive evidence. In my opinion in the instance with which we are concerned the Honorary Magistrate did not satisfy the definition in sec. 4 of the Indian Oaths Act of a Court or person authorised to administer oaths and affirmations and the offending statement is in the present case not caught up under sec. 181, I.P.C

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