Citation Codes

Equivalent Citations

citation codes

Case Number

Criminal Revision Application No. 196 of 1920

Judges

Pratt
Fawcett
Setalvad, JJ.

Acts

Indian Penal Code, Code of Criminal Procedure, the Indian Evidence Act
section 304 in No. xxviii(1)(6) and ii(2) of Schedule V of the Code
provisions of section 9 of the Defence of India Act (IV of 1915).
section 72, Indian Penal Code. Sub-section (3) of Section 367
Code of Criminal Procedure or the Indian Evidence Act.38.
Section 236 of the Cr PC. Section 193, Indian Penal Code,
section 379 or section 411 of the Indian Penal Code.
section 3 of the Defence of India Act (IV of 1915)
section. Thus section 304. Indian Penal Code,
section 193 of the Indian Penal Code.30.
section 193 of the Indian Penal Code;
section 191 of the Indian Penal Code,
section 3 of the Indian Evidence Act,
section 193 of Indian Penal Code.16.
section 191 of the Indian pal Code.
provisions of the Indian Oaths Act.
section 193, Indian Penal Code.51.
section 193, Indian Penal Code.19.
section 193, Indian Penal Code.40.
section 72, Indian Penal Code.32.
PRESIDENCY TOWNS INSOLVENCY ACT
section 161 of the Code of 1882
section 161 of the Code of 1898
section 72, India Penal Code.11.
section 206, Indian Penal Code,
section 191, Indian Penal Code,
section 193, Indian Penal Code,
section 4(m)

See more information ...

Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The accused (Purshottam Ishvar—named in the Commissioner's order excerpt) was originally convicted by the City First Class Magistrate, Ahmedabad, for an offence under section 193 of the Indian Penal Code and sentenced to two years' rigorous imprisonment. On appeal the Sessions Judge confirmed the conviction but reduced the sentence to one year's rigorous imprisonment. The accused sought revision by the High Court.

Relevant facts: the accused had been a witness in the "Nadiad Derailment Case" before Commissioners appointed under the Defence of India Act. On 17 May 1919, believing a warrant for his arrest might exist, he went to the Resident First Class Magistrate at Nadiad and made a statement that was recorded under section 164 CrPC. Later, at trial before the Second Special Tribunal (the Commissioners), he made statements that were contradictory to the earlier section 164 statement. The Commissioners issued an order under section 476 CrPC directing inquiry into the alleged offence of giving false evidence. The accused was then tried under section 193 IPC for making contradictory sworn statements (one before the Magistrate under section 164 CrPC and one before the Tribunal) and found guilty.

The High Court convened a Full Bench to decide several questions of law raised on revision, notably whether statements recorded under section 164 CrPC during police investigation can be treated as "evidence in a stage of a judicial proceeding" for the purposes of section 193 IPC and whether such statements can be linked with trial statements so as to support an alternative charge under section 236 CrPC.

Legal Issues Presented

Whether a statement recorded by a Magistrate in the course of a police investigation under Section 164 of the CrPC is "evidence in a stage of a judicial proceeding" within the meaning of Explanation 2 to section 193 of the IPC.
Whether such a statement can be so regarded if the Magistrate who records it has no jurisdiction to inquire into or try the case.
Whether, if the statement under section 164 is not "evidence in a stage of a judicial proceeding", it can nevertheless be linked with a statement that is evidence in a stage of judicial proceedings so that the two together form a "series of acts" on which an alternative charge under section 236 CrPC (of intentionally giving false evidence) can be framed.
Whether a Magistrate who had authority to carry on the preliminary inquiry but for a Notification under the Defence of India Act had any jurisdiction to inquire into or try the case after that Notification.
If question (1) is answered in the affirmative, whether it matters that the original case was decided to be tried by a Tribunal under the Defence of India Act rather than in the ordinary course (i.e., whether investigation under Chapter XIV CrPC can still be considered a stage of the proceedings before such a Tribunal).

Arguments of the Parties

Appellant's (Accused's) Arguments

The Commissioners were not a "Court" and thus lacked power to grant sanction under section 195 CrPC because they had no appellate or revisional jurisdiction over subordinate Magistrates.
The statement of 17 May 1919 (recorded under section 164 CrPC) was not brought to the Commissioners' notice in the course of judicial proceedings.
The Commissioners had no authority to direct prosecution on an alternative charge without specifying that the statement before them was false.
The order under section 476 CrPC was not a proper order (procedural challenge).
The prosecution had failed to prove that the 17 May statement was made on oath.
The section 164 statement was not made voluntarily.
The Commissioners erred in declining to call witnesses (the defence wished to examine Mr. Elliott, Mr. Gandhi—two Commissioners—and Mr. Patel—counsel—to ascertain how the 17 May statement came to the Commissioners' notice).

The opinion records that many points were argued by Mr. Jinnah for the accused, but does not set out a detailed narrative of the prosecution's counter-arguments other than the findings and reasoning recorded by the lower courts and the Tribunal. Accordingly, a detailed account of the respondent/prosecution submissions is not contained in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Queen-Empress v. Mugapa bin Ningapa (also spelled Mvgapa bin Ningapa)	Held that a statement made to a police officer under the Code of Criminal Procedure and a later statement before a committal magistrate could not be linked to form basis of an alternative charge under section 236 CrPC (i.e., such contradictory statements could not be charged alternatively as per that Full Bench decision).	The Full Bench considered this decision at length. Pratt, J. and others regarded it as incorrect or of limited value because reasons were not given; Shah, J. and others regarded Mugapa as authoritative and followed it for the present case so far as it applied. The Full Bench discussed whether Mugapa should be followed; the majority ultimately held that statements under section 164 could form part of an alternative charge when there was a common relation between statements.
Queen-Empress v. Annaya	Held (in earlier decisions) that contradictory statements might be charged alternatively (authority referenced in discussion of conflict among authorities).	Referred to as part of the body of conflicting authorities; the Court noted the apparent conflict between Annaya and other decisions such as Kabhai and Mugapa.
Queen-Empress v. Parshram Raysing	Decided that a police investigation was, by reason of Explanation 2 to section 193 IPC, a stage of a judicial proceeding (as cited in the opinion).	Pratt, J. expressly differed from this decision, stating he could not follow it; the Full Bench discussed the conflicting views and Pratt rejected Parshram Raysing on this point.
Queen-Empress v. Bharma	Full Bench held that a statement made before a Magistrate (who had no authority to carry on the preliminary inquiry) was not evidence in a stage of a judicial proceeding.	The High Court treated Bharma as an important Full Bench authority. Pratt and other judges considered its reasoning and scope; some judges thought Bharma left open whether a magistrate with jurisdiction would make the section 164 statement a part of a committal inquiry. The present Full Bench distinguished or re-examined Bharma in light of section 236 and other authorities.
Reg v. Vahala Jetha	Referential authority noting doubts about the desirability of magistrates without jurisdiction recording confessions and statements under section 164 CrPC.	Used by the Court to show historical doubts and the legislative response (explanation to section 164 added in 1898) intended to remove those doubts.
Queen-Empress v. Khem	Held that a witness who made statements before a 3rd class magistrate under section 164 and later at trial might be convicted under part two (not part one) of section 193 IPC when appropriate.	Pratt cited Khem as supportive of the proposition that if the magistrate had jurisdiction the section 164 statement was evidence in a stage of a judicial proceeding; Pratt regarded Khem as correctly decided and consistent with convicting on the appropriate part of section 193.
Queen-Empress v. Alagu Kone (also cited as Queen-Empre v. Alagu Kone)	Involved a magistrate recording a statement under section 164 in a murder case; the later charge in the alternative under section 193 was considered.	Pratt treated Alagu Kone as distinguishing the situation where the magistrate recording the statement was the committing magistrate and so the section 164 statement was a stage of judicial proceedings; Pratt cited it as supporting the ability to charge alternatively in certain circumstances.
Tevan v. Emperor	Held that a statement recorded by a magistrate in a murder investigation under section 164 CrPC meant the magistrate was a Court for that purpose and that such investigations could be a stage of judicial proceedings.	Pratt noted Tevan among authorities he differed from; the opinion discusses Tevan in the context of conflicting precedents about whether section 164 statements are part of judicial proceedings.
Queen-Empress v. Ismail/Ismal valad Fataru	Reported decision confirming conviction in the alternative for giving false evidence before a Magistrate or before a Police Officer (showing alternative convictions have been affirmed in some instances).	Pratt relied on Ismail valad Fataru as supporting the possibility of alternative convictions; he considered it correct and cited it in support of his view that alternative charges can be framed in particular circumstances.
Queen-Empress v. Kabhai	Held that a charge in the single form (Form xxviii(ii)(4)) could not be framed where two separate heads were necessary; instead separate heads of charge in the alternative should be framed under section 236.	The Court discussed Kabhai as relevant to the form and framing of alternative charges; it was used to explain that Schedule V Form wording should not be read as preventing alternative charges across distinct parts of a section.
Queen-Empress v. valad Govinda (name appears in the opinion in this form)	Discussed in connection with whether statements to the police which expose a witness to prosecution are "false evidence" and whether the accused was bound to answer.	The opinion references it as part of the jurisprudential background showing nuanced outcomes; it was discussed in relation to Kabhai and whether alternative charges are permissible.
Sunder Dasadh v. Sital Mahto	Held that absence of sanction under section 195 CrPC does not automatically vitiate conviction unless that absence, in fact, occasioned a failure of justice (section 537 CrPC limits revision on such grounds).	The Court relied on Sunder Dasadh to apply section 537 CrPC: even if a required sanction was absent or irregular, revision is not justified unless the irregularity occasioned failure of justice. This case supported refusal to overturn conviction solely for sanction irregularity.
Empress v. [name truncated] Singh; Empress of India v. Yak Khan	These authorities were cited in relation to earlier understandings about magistrates' jurisdiction and the effect of jurisdiction on treating section 164 statements as part of a judicial inquiry.	The Court cited these as historical background showing earlier approaches that linked magistrate jurisdiction to treatment of section 164 statements; they were used to explain the evolution and confusion in the case law.

Court's Reasoning and Analysis

The Full Bench had to resolve conflicting lines of authority and to interpret the statutory scheme that connects (a) section 164 CrPC statements (witness statements recorded by Magistrates), (b) section 193 IPC (punishment for giving false evidence), and (c) section 236 CrPC (permitting alternative charges when a single act or series of acts might constitute different offences).

Key statutory interpretive points considered and applied:

The term "stage of a judicial proceeding" in section 193 IPC must be read against the Code definitions and the Explanation 2 to section 193 (investigation directed by law preliminary to a proceeding before a Court of Justice).
Section 236 CrPC allows charges in the alternative where facts proved can show one of several offences; illustration (b) to section 236 (added in the 1898 Code) was important in clarifying that contradictory statements can constitute a "series of acts" on which an alternative charge may be founded.
Section 191 IPC defines "giving false evidence"; section 193 prescribes punishment and distinguishes only for purposes of sentencing whether false evidence was given at a judicial stage or otherwise.
Section 537 CrPC restricts the High Court's power in revision to interfere for procedural irregularities (e.g., want of or irregularity in sanction under section 195 CrPC) only if such irregularity occasioned a failure of justice.

Division of judicial views and final majority reasoning:

- Pratt, J.: After reviewing conflicting decisions, Pratt concluded: (1) A police investigation under Chapter XIV CrPC is not itself a "judicial proceeding" as that term is used in the IPC; accordingly, a statement recorded under section 164 during police investigation is not "evidence in a stage of a judicial proceeding" for the purposes of section 193 (answers (1) and (2): negative). (2) However, a statement recorded under section 164 may nevertheless be linked with a statement given in an actual judicial stage (trial or inquiry) to form a "series of acts" within section 236 CrPC so as to support an alternative charge—i.e., the two acts together can constitute the corpus delicti enabling an alternative charge under section 236 (answer to (3): affirmative). Pratt therefore rejected some authorities (e.g., Queen-Empress v. Parshram Raysing, Queen-Empress v. Alagu Kone, Tevan v. Emperor) and upheld others (Queen-Empress v. Ismail valad Fataru and Queen-Empress v. Khem) to reach this conclusion.

- Macleod, C.J.: Agreed with Pratt's answers and reasoning. He emphasized that section 236 contemplates a "series of acts" connected by a common relation; contradictory sworn statements at different stages about the same matter can be such a series. Macleod also carefully considered the effect of illustration (b) to section 236 and the distinction between the acts that constitute "giving false evidence" (the underlying act) and the question of punishment under section 193.

- Shah, J.: Agreed with Pratt on questions 1, 2, 4 and 5 but disagreed as to question 3—Shah would answer question 3 in the negative. Shah's reasoning emphasized the distinction between a section 164 statement (which he regarded as voluntarily made and not admissible as evidence at trial under the ordinary Code/Indian Evidence Act rules) and statements made in the course of inquiry/trial; he believed the Court may, on fair interpretation of section 236, decide not to link a statement not in a judicial stage with a statement that is in a judicial stage to form the basis of an alternative charge. Shah also relied on the Full Bench decision in Mugapa bin Ningapa as implicitly limiting the reach of section 236.

- Setalvad and Fawcett, JJ.: Both concurred in Pratt's answers; Setalvad wrote separately agreeing with Pratt and Macleod on question 3 and elaborated that there exists a "common relation" across investigation, committal and trial stages; statements made in those stages can constitute a series of acts under section 236.

Treatment of conflicting authorities: The Full Bench reviewed prior Full Bench and single-judge decisions that had come to differing conclusions. The Court treated the earlier authorities as forming a confused body of law arising from varied factual contexts and changes in the Codes. The majority view found precedent supporting the proposition that contradictory sworn statements in police investigation (section 164) and at trial can, where there is a common relation between them, be joined in an alternative charge under section 236 CrPC and prosecuted under section 193 IPC (with sentencing consequences governed by which part of section 193 proved to apply).

Sanction and revision (sections 195 and 537 CrPC): The court considered the argument that sanction under section 195 CrPC from the Magistrate who recorded the section 164 statement had not been obtained. Even assuming sanction was absent or irregular, the Court applied section 537 CrPC and the Sunder Dasadh precedent to hold that the High Court should not set aside conviction on that ground unless the irregularity occasioned a failure of justice. The Bench concluded that the irregularity (if any) did not occasion failure of justice because the evidence established the making of contradictory sworn statements that formed the core of the offence under section 191/193 IPC together with section 236 CrPC.

Holding and Implications

Holding (core ruling):

1) The Full Bench held that a statement made on oath by a witness before a Magistrate under section 164 CrPC can, together with a statement made on oath at the trial, form the basis of an alternative charge under section 236 CrPC provided there is a common relation between the two statements (i.e., they form a "series of acts").

2) On the facts of this case, the accused could be convicted of giving false evidence by the mere fact of having made contradictory statements—one before the Magistrate (section 164) and one at the trial—because there existed the requisite common relation between the statements.

3) Even assuming there was want of or irregularity in the sanction required by section 195 CrPC (for the Magistrate who recorded the section 164 statement), section 537 CrPC prevents revision on that ground unless such want or irregularity occasioned a failure of justice. The Court found no such failure of justice here.

Final order and sentencing implication:

The Full Bench upheld the conviction but considered sentence. The original two years' rigorous imprisonment imposed by the City First Class Magistrate had been reduced by the Sessions Judge to one year. The High Court further reduced the sentence to six months' rigorous imprisonment. The Full Bench's decision also governs two related revision applications referred to in the opinion, and their sentences were likewise reduced to six months respectively.

Broader legal implications (as expressed in the opinion):

The Full Bench clarified that statements made under section 164 CrPC during investigation may be linked with later statements made in judicial proceedings to form a "series of acts" for purposes of section 236 CrPC when a common relation exists.
The decision addresses and attempts to resolve conflicting authorities on whether police-stage statements can be treated as part of judicial proceedings for the purposes of section 193 and, more importantly, whether those statements can be joined with trial-stage statements in alternative charges.
Section 537 CrPC operates as a bar to revisional interference for procedural irregularities (such as defective sanction under section 195) unless the irregularity in fact produced a failure of justice; absence of sanction alone does not invalidate conviction where the substantive facts establish guilt.

Direct effect on parties: The accused's conviction was maintained but the sentence was reduced to six months' rigorous imprisonment. The Full Bench's legal conclusions on the linkage of section 164 statements with trial statements under section 236 CrPC form the controlling view of this Court in the circumstances recited in the opinion.

Show full summary ...

Purshottam Ishvar Amin v. Emperor

Macleod, C.J:— The accused was found guilty by the City First Class Magistrate, Ahmedabad, of an offence under section 193, Indian Penal Code, and sentenced to two years' rigorous imprisonment. On appeal to the Sessions Judge the conviction was confirmed but the sentence was reduced to one year's rigorous imprisonment.

2. He has now applied to the High Court to exercise its revisional powers in his favour. The accused was a witness in what was known as the Nadiad Derailment Case tried by the Commissioners appointed under the defence of india act. On the 17th May, 1919, the accused, having heard that a warrant for his arrest in connection with that offence had been issued, went to the Resident First Class Magistarte at Nadiad to surrender in order to save himself from arrest if he found that a warrant had actually been issued. As a matter of fact a summons only had been issued for his attendance under Section 160 of the Cr PC. The Magistrate referred him to the Fozlar. He made a statement to that officer who, thereupon, sent him to the Magistrate who recorded his statement under Section 164 of the Cr PC. After he had given his evidence before the Commissioners at the trial of the accused in the case, the Commissioners considering that a certain statement made before them was in direct conflict with a particular statement made before the Magistrate passed the following order under Section 476 of the Cr PC:—

Whereas we, the President and Members of the Second Special Tribunal, Abmedabad, are of opinion that there is ground for inquiry into the clence committed by Purshottam Ishvar…(p. 132).

3. The accused was put up for trial before the First Class Magistrate, Ahmedabad, who framed a charge against him under section 193 of the Indian Penal Code in that he had made a statement on oath, on the 17th May, 1919, at the stage of a judicial proceeding into the Nadiad Derailment Case before the Resident First Class Magistrate and another statement, on the 25th July, 1919, before the Second Special Tribunal one of which statements he either knew or believed to be false or did not believe to be tine. On this charge as above stated the accused has been found guilty A great many points were argued before us by Mr. Jinnah, on behalf of the accused, but there is only one of any real substance which would be sufficient, in my opinion, if decided in favour of the accused, to induce the Court to interfere with the findings of the lower Court.

4. It was contended inter alia by the accused in his petition to this Court that the Commissioners were not a Court and had no power to grant sanction under Section 195 of the Cr PC, as they had no appellate or revisional jurisdiction over Sub-ordinate Magistrates; that the statement of the 17th May was not brought to their notice in the course of judicial proceedings; that they had no power to direct the prosecution of the petitioner on an alternative charge without specifying that the statement before them was false; that the order under section 476 was not a proper order; that the prosecution had failed to prove that the statement of the 17th May was made on oath; that the statement was not made voluntarily; and that the Commissioners had erred in declining to call witnesses whose evidence was necessary for the defence.

5. The latter charge might be a serious one but it has been shown that the defence wished to oath Mr. Elliott and Mr. Gandhi, two of the Commissioners, and Mr. Patel one of the counsel, in order to as certain how the statement of the 17th May came under the notice of the Commissioners. But the Resident Magistrate said he forwarded it in the ordinary course to the District Magistrate, and the trial Magistrate says in his judgment, “it is an admitted fact that the statement was brought under the notice of the Tribunal during the trial of the accused in Case No. 2 of 1919,” while the Sessions Judge says: ‘The First Class Magistrate forwarded it to the District Magistrate who in his turn forwarded it to the Special Tribunal.’ Nor does it appear from his judgment that any objection was raised before him with regard to the exclusion of evidence. Therefore we can safely assume that the statement reached the Commissioners in the ordinary course and that there is no substance in the present complaint. The other points have all been adequately dealt with by the lower Court and there is no need for us to deal with them again in detail.

6. There can be no doubt that the accused had made contradictory statements. That is by no means conclusive proof of his guilt. The accused told the Commissioners that the statement under section 164 of the Cr PC, was made because Inspector Janubhai said be would go to jail at once if he did not make it. In his statement before the trying Magistrate he described at great length how he was induce by the Inspector to say what he did before the Resident Magistrate. But the evidence to support this allegation was absolutely disbelieved by the trying Magistrate and the question was very carefully considered by the Sessions Judge and I see no reason why we should differ from him. The other objections are all technical and even admitting that there have been error omissions or irregularities in the proceedings, we should not be justified in revising the conviction unless we were satisfy that they had occasioned a failure of justice Section 537 of the Cr PC.

7. But there are several important questions to be answered before we can conflict the conviction.

1. Whether the statement made before a Magistrate in the course of pol investigation under Section 164 of the Cr PC, was evidence in a stage judicial proceedings?

2. Whether a statement under sector 164 can be said to be evidence in a ??? of judicial proceedings if the Magistrate who records it has no jurisdiction inquire into or try the case?

3. Whether, if the statement ??? section 164 is not evidence in a stage judicial proceedings, it can form the ??? of an alternative charge under section Indian Penal Code?

4. Whether the answers to the three questions can be in any way ??? by the fact that the judicial proceeding the case were before a Tribunal appoint under the defence of india act?

8. The difficult; in answering questions 1, 2, and 3, lies not only in the fact that there are many conflicting decisions of the Indian Courts upon them but also in the fact that there have been changes from time to time in the law which had to be determined in those cases.

9. Section 236 of the Cr PC, enables a charge to be made in the alternative if a single act or a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute.

10. It might be fairly deduced from the terms of the section that to procure a conviction on one charge facts would have to be proved which would constitute, ??? offence, so that if it could not be proved that one of two contradictory statements ??? false, a conviction under section 193, Indian Penal Code, could not result. Under Section 555 of the Cr PC, the ??? set forth in the 5th Schedule with ??? variations as the circumstances of ??? case require may be used for the respective purposes therein mentioned. ??? Form xxviii (ii)(4) gives the ??? for a charge of making contractory statements one of which is down or believed to be false and thereby committing an offence under section 193, Indian Penal Code. In Queen v. Mahomed ??? Shaw (1) it was held by a ??? of a Full Bench that a conviction ??? such a charge was good notwithstanding that the jury had not distinctly found ??? of the two statements was false. ??? the other hand in Queen-Empress v. ??? (2) it was held by this Court that the case of contradictory statements, ??? heads of a charge should be ??? imputing to the accused falsehood each of the occasions. If a conviction ??? justified only on one or other of the ??? and it was uncertain on which of ??? two occasions falsehood was uttered section 72 of act xlv of 1860 applied ???. The judgment in such case should ??? in the alternative and punishment inflicted for the lesser offence. Mr. ??? in his work on the Penal Code, ??? not agree with this view of Section 72, says at p. 365, 4th Edition:

“It certainly seems to me that this mode charging two, contradictory statements, made at different Mines, as making oath a single offence, does not come within the terms of section 72, India Penal Code.”

11. And at p. 41 (4th Edn.) he says:

“It will be observed that to authorise a conviction under this section, the doubt must be as to which of the offences the accused has committed, not whether he has committed either,”

12. And this seems to be correct.

13. To set these doubts at rest illustration (b) was added to section 236 which made it clear that the section might legally be construed as enabling a Court to charge an accused under section 193 in the alternative with making contradictory statements and to convict him although it could not be proved which of the statements was false. But it is only when the statements constitute a series of acts that an alternative charge can be framed under Section 236 of the Cr PC. section 193, Indian Penal Code, provides punishments for two classes of perjury. A person is said to give false evidence when being legally bound on an oath or by any express provision of law to state the truth or being bound by law to make a declaration upon any subject he makes any statement which is false and which he either knows or believes to be false or does not believe to be true. It makes a difference with regard to the maximum punishment which can be imposed whether he intentionally gives false evidence in any stage of a judicial proceeding, or in any other case, and the question arises whether a statement in a stage of a judicial proceeding and a statement in any other case can be linked together so as to form a series of acts on which a charge can be framed in the alternative under section 236.

14. In Queen-Empress v. Mugapa bin Ningapa (3) it was held by the Full Bench following Queen-Empress v. Annaya (4) that where a person had made two contradictory statements one to a Police Officer, under Chapter XIV of the Code of Criminal Procedure, and another to a Magistrate holding an inquiry, he could not be charged on an alternative charge. That case was under the Code of 1882 when a person could be convicted under section 193 for making false statements before, a Police Officer investigating an offence under Chapter XIV of the Code of Criminal Procedure. Unfortunately no reasons are given for this decision, nor for the decision in Queen-Empress v. Annaya and it can only be presumed that the learned Judges thought that the two statements did not constitute a series of acts, although they might be made in the course of the investigation and the trial respectively of the same offence. No reference was made to Queen-Empress v. Parshram Raysing (5) in which it was decided that a Police Investigation was by reason of explanation 2 to section 193, Indian Penal Code, a stage of a judicial proceeding.

15. In Queen-Empress v. Bharma (6) the following question was referred to a Full Bench:—

“Whether a statement made before a Magistrate in the course of a Police Investigation is made in a stage of a judicial proceeding to as to suffice as a basis in part, of an alternative charge of an offence under section 193 of Indian Penal Code.”

16. The Police were investigating a case of murder and the statement was recorded by a Third Glass Magistrate. The answer given by the Full Bench was that as the Magistrate had no authority to carry on the preliminary inquiry in the case, the statement made before him was not evidence in a stage of a judicial proceeding. None of the previous authorities were discussed and no reasons were given for the decision. It might be inferred that the learned Judges considered that if the Magistrate had authority to carry on the preliminary inquiry, the statement would have been evidence in a stage of a judicial proceeding, but this is by no means certain. They may have thought that in any event the fact of his having no authority was sufficient to dispose of the case. It would certainly be illogical if the question whether a proceeding before a Magistrate under Chapter XIV, Code of Criminal Procedure, was a stage of a judicial proceeding, depended on whether or not he had authority to deal with the case under Chapter XV. It does not appear to me that the explanation to section 164, which was added in 1898, makes any difference. Certain doubts had been expressed as to the desirability of Magistrates who had no jurisdiction in the case recording confessions and statements under section 164 [Reg v. Vahala Jetha (7)), and the explanation was added to remove these doubts.

17. Now if an investigation under Chapter XIV of the Code of Criminal Procedure is an investigation directed by law preliminary to a proceeding before a Court of Justice then under Explanation 2 to section 193 such an investigation is a stage of a judicial proceeding, and this is the view which has been adopted by the High Courts of Allahabad and Madras. In Queen-Empress v. Khem (8) a witness made 3 statement before a 3rd Class Magistrate under section 164 and another before the Magistrate at the trial. It was held he might be convicted under the second, in not the first, para of section 193, Indian Penal Code. Queen-Empress v. Bharma was referred to but as the 3rd Class Magistrate had jurisdiction to try the case it did not apply. But the learned Judge seem to doubt the correctness of the decision, and it may be inferred that the thought that even if the statement was no evidence in a stage of a judicial proceeding it was evidence in another case and could be linked with a statement made in a stage of a judicial proceeding. But they we clearly of opinion that if the Magistrate he authority to try the case the statement recorded by him was evidence in a stage a judicial proceeding. In Queen-Empre v. Alagu Kone (9), a Magistrate recorded statement in a murder case under Section 164 of the Cr PC. Afterward the witness withdrew his statement and, was charged in the alternative under section 193 with intentionally giving fall evidence. It was held that Queen-Emperor v. Bharma was not applicable as ??? Magistrate who recorded the statement was the Committing Magistrate. In ??? Tevan v. Emperor (10) a statement ??? recorded by a Magistrate in a murder case investigation under Section 164 of the Cr PC. It was held that the Magistrrid was a Court and when he took down statement under section 164 he was acting discharge of a duty imposed by law and ??? authorised to administer oath. It ??? argued that the conviction of the accuse under section 193, Indian Penal Code, ??? not legal, and it was held that in the ??? of the explanation attached to section, that contention could not be accepted, ??? investigation under Chapter XIV of Code of Criminal Procedure was a stage judicial proceeding and therefore the appellants gave false evidence. The illustration to Explanation 2 was referred to, but, with due respect, the illustration does not give an answer to the question whether an investigation under Chapter XIV, Code of Criminal Procedure, comes within the explanation. It may be said the investigation referred to in the illustration is an investigation after the inquiry has commenced, but is preliminary to the actual trial, because the Magistrate has no authority to try the case.

18. It does not appear that it was seriously argued in the trial Court that in ordinary cases a statement recorded under section 161 is not evidence in a stage of a judicial proceeding, while before the Sessions Judge from his judgment it seems to have been admitted that it would be. But it was argued that this was not an ordinary case the Tribunal was constituted under Act IX 1915 which abrogated all provisions of the Code of Criminal Procedure so far as they lated to committal proceedings. That therefore the Magistrate, though a First lass Magistrate, had no authority to try on the preliminary inquiry in this is, so that the decision in Queen-Empress v. Bharnm was directly applicable. On the other side it was argued that though ??? section 5 of the Act the Tribunal might ??? cognizance of a case without a commital order, there was nothing in the Act bar committal proceedings being taken if in authorities so decided, though naturally intention of the Act was to do away he the necessity of the stage of the carry procedure so that the Tribunal that deal with all cases whether triable ??? Court of Session or hob as if they a warrant cases. It seems to me it would be difficult to say that the Magistrate no ??? authority, considering the powers ??? were vested in him to carry on the ??? inquiry in the case, merely ??? use it had been enacted by the ??? that in a particular class of ??? within which this one fell there ??? be no preliminary inquiry, but the ??? is sufficiently doubtful, considering ruling in Queen Empress v. Bharma make it desirable that it should be red to a Full Bench with the other ??? which this case has afforded an ??? for gobbing finally decided so ??? this Court is concerned. (Then his ship stated the questions which are given in the judgment of Pratt, J.)

Shah, J.:— I agree that the only point of substance arising in this application is whether the statement of the petitioner recorded by the First Class Magistrate of Nadiad on the 17th of May, 1919, under Section 164 of the Cr PC, after the Notification No. 3778 of the Local Government under section 3 of the Defence of India Act (IV of 1915) was published on the 14th of May, can form a basis, in part, of the alternative charge of an offence under section 193, Indian Penal Code.

19. The other points raised by Mr. Jinnah on behalf of the accused do not afford any good ground for interference in revision.

20. Several questions have been argued in connection with the point, which require to be considered. These questions have been formulated by my Lord the Chief Justice at the end of his judgment, with which I generally agree. They are all important questions and some of them are not free from difficulty. There is diversity of judicial opinion as regards some of them: and there is the question of applying the Full Bench decisions of this Court in Queen-Empress v. Bharma and Queen-Empress v. Mugapa bin Ningapa to the statement recorded under the special circumstances of this case. For a satisfactory disposal of this case it is desirable that these questions should be referred to a Full Bench. Accordingly I conour in the proposed reference.

21. I do not desire to express any opinion on any of these questions at this stage: nor do I mean necessarily to suggest any doubt as to the correctness of the Full Bench decisions above referred to so far as they go.

OPINION

Pratt, J.:— The questions referred for decision to the Full Bench are:—

1. Whether a statement recorded by an; Magistrate in the course of a police investigation under Section 164 of the Cr PC, is evidence in a stage of & judicial proceeding within the meaning of ??? 193, Indian Penal Code, Explanation 2?

2. Whether such a statement can be said to be evidence in a stage of a judicial proceeding if the Magistrate who records. It has no jurisdiction to inquire into or try the case?

3. Whether, If shot a statement is not evidence in a stage of a judicial proceeding, but comes within the meaning of the words ‘evidence in any other case’, in section 193, Indian Penal Code, it can be linked with a statement which is evidence in a stage of the judicial proceeding following on the investigation, so that the two can be said to be a series of acts on which an alternative charge can be framed under Section 236 of the Cr PC, of intentionally giving false evidence.

4. Whether the Magistrate who had authority to carry on the preliminary inquiry but for the Notification under the defence of india act had any jurisdiction to inquire into or try the case after the Notification?

5. Whether if the Full Bench are of opinion that question 1 should be answered in the affirmative, it makes any difference that the original case was decided to be tried by a Tribunal under the defence of india act instead of being tried in the ordinary course, so that the investigation under Chapter XIV of the Code of Criminal Procedure cannot be Considered a stage of the proceedings before the Tribunal.

22. A Police investigation under Chapter XIV of the Code of Criminal Procedure is not itself a judicial proceeding within the meaning of that term as used in the Indian Penal Code. Under that Code a judicial proceeding is a proceeding before a Judge as defined in section 19. Nor does it become a stage of a judicial proceeding by virtue of the Explanation to section 193. The words of the Explanation are: “An investigation directed by law preliminary to a proceeding before a Court of Justice.” A magisterial inquiry preparatory to commitment is an inquiry directed by law preparatory to the trial. This direction is expressed in Section 206 of the Cr PC. The effect of the explanation is therefore to make a magisterial inquiry preparatory to commitment, a stage of a judicial proceeding. But there is no direction of law that the Police investigation should procede a trial. It very often does not, e.g, when the Magistrate takes cognizance on a complaint or ‘suo motu’, Nor is it enough that the Police investigation does as a matter of fact often precede a trial. The section requires something more. There must be an express direction by law just as under Explanation 3 there must be an express direction by a Court of Justice.

23. To hold that a Police investigation is a stage of a judicial proceeding would lead to anomaly. A Magistrate trying a warrant case is a Court of Justice (section 20, Indian Penal Code): but a Magistrate holding an inquiry preparatory to commitment is not (section 19, illustration (d)). A Police investigation preparatory to a trial by a Magistrate would therefore be a stage of a judicial inquiry, while a Police investigation preparatory to a magisterial inquiry for commitment would not.

24. No doubt a Magistrate examining a witness under section 184, would do so on oath. But the definition of judicial proceeding in section 4(m) of the Cr PC is limited to that Code and does not apply to that phrase as used I in the Indian Penal Code.

25. A statement recorded by a Magistrate to a witness in the course of a Police investigation under Chapter XIV is, I think, and evidence in a stage of a judicial proceeding and I differ on this point from Queen-Empress v. Parshram Raysing ; Queen-Empress v. Alagu Kone and ??? Tevan v. Emperor .

26. It is quite immaterial whether the Magistrate had or had not jurisdiction ??? inquire into or try the case. Under the Code of 1872, there were cases where the fact that the Magistrate had jurisdiction was regarded as indicating that the exact nation was not under section 164, as professed to be, but should be consider to have been taken in the course of the inquiry or trial: Empress v. ??? Singh (11); Empress of India v. Yak Khan (12). Subsequent Changes in ??? Code of 1882 have made these ??? obsolete. But they have left their ??? on the case of Queen-Empress v. Bharma ???. There, in a case of murder, a statement was made under section 164 before the Class Magistrate and was afterware contradicted before the Committing Magistrate.

27. The Court held that the statement ??? a Third Class Magistrate was not evidence in a judicial proceeding, that Magistrate not having authority to carry on ??? preliminary inquiry. The reservation ??? to the Magistrate's jurisdiction was, ??? think, made in order to leave open the question whether if the Magistrate had jurisdiction, the statement though profess to be made under section 164 should be considered part of the commitment inquiry. In Queen-Empress v. Bharma the Full Bench merely answered the question propounded and did not consider whether the accused could not have been convicted of a charge in the alternative for false evidence under section 193, part 1, before the Committing Magistrate or of false evidence under section 193, part 2, before the Third Class Magistrate, But in the case of Queen-Empress v. Ismail valad Fataru (13), decided three months later, though reported in 11 Bom. 659 a conviction was confirmed in the alternative for giving false evidence before a Magistrate or false evidence before a Police Officer (under Section 161 of the Cr PC of 1882).

28. In the case of Queen-Empress v. Kabhai it was held in a similar case that a charge for one offence in Form xxviii(ii)(4) of Schedule V of the Code of Criminal Procedure could not be framed, but that separate reads of charge in the alternative should be demed under section 236. This was allowed by the case of Queen Empress v. ??? valad Govinda where the statement made to the Police Officer was in ans were questions which bended to expose the soused to a criminal prosecution. The court held that this was not false evidence, ??? the accused was not bound to answer ???. This was sufficient to dispose of the case, but the judgment professing to follow Queen Empress v. Kabhai added ??? even if the statement to the Police as false evidence, the case was not one in which alternative charges could be framed, his was not only an obiter dictum but an correct statement of the decision in Queen-Empress v. Kabhai . Never the ??? the Full Bench in Queen-Empress v. ??? bin Ningapa approved the case Queen-Empress v. Kabhai that a ??? in the Code of Criminal Procedure ??? was not possible, and at the same he followed Queen-Empress v. Annaya ??? holding that alternative charges could ??? be framed. The judgment acknowled the discrepancy between Queen-Empress v. Annaya and Queen-Empress Kabhai , but gave no reason for ??? the obiter dictum in the former lar than the decision in the latter—and does not even refer to the case of Queen-Empress v. Ismail valad Fataru .

29. The confusion seems to have arisen out of the apparent inconsistency between section 236 and the Form of Charge, Schedule V, Form xxviii(ii)(4). The Form sets forth two statements each in a judicial proceeding,

“one of which statements you either knew or believed to be false, or did not believe to be true, and thereby committed an offance punishable under section 193 of the Indian Penal Code”.

30. It appears to be a Form of charge with one head for a single offence and thereby invites the criticism of Mr. Mayne quoted in the referring judgment. But the Form comes under part II of Form xxviii “Charges with two or more heads”. The charge is really a charge in the alternative either of an offence under section 193 on the first statement or of an offence under section 193 on the second statement. But because the two offences happen to be under the same part of the same section, the Form uses the words “an offence” under section 193. It is this somewhat inaccurate wording that has led to the erroneous opinion that alternative charges could not be framed where the contradictory statements fell under different parts of section 193.

31. But under section 236 it is quite clear that a charge in the alternative may be framed for different offences. The prosecution cannot establish exclusively any one offence, but are able to prove an act or series of acts which exclude the inncoence of the accused, and show that he must have committed one of two or more offences. The prosecution establish a corpus delicti on the facts which can be proved and the facts which cannot be proved are subsidiary facts important only to this extent that they decide under which penal provision the delictum falls, or on what occasion the offence was committed. In illustration (a) the recent possession of stolen property is the corpus delicti. Whether the accused stole it himself or subsequently received it from the thief are subsidiary facts which only affect the question whether his delictum falls under section 379 or section 411 of the Indian Penal Code. In illustration (b) the two contradictory statements constitute the corpus delicti and what cannot be proved is the subsidiary fact on which occasion the false evidence was given. If the one statement was evidence in a judicial proceeding and the other, evidence in any other case, the alternative charges would be one under the 1st pare and one under the 2nd part of section 193. Judgment could be in the alternative under section 367 (3) of the Cr PC, and the punishment) would be for the minor offence under section 72, Indian Penal Code.

32. It is argued that false evidence in a Police investigation and false evidence in a judicial proceeding do not form a series of acts and cannot be linked together in alternative charges. If false evidence in a commitment inquiry and false evidence in a trial can be charged in the alternative I cannot understand how it can be argued that false evidence in a Police investigation stands on a different footing. It is said that the acts must form a series. True, but the only factor that makes them a series is that they each lead to an inference as to the guilt of the accused. There may be a number of acts apparently distinot and even different transactions but when they form a chain of ciroumstantial evidence pointing to the guilt of the accused they become a series. This ciroumstantial evidence may prove the accused's connection with a murder. These acts and the murder are the corpus delicti and the accused may be charged in the alternative with murder or atetment of murder. So with contradictory statements the connection is that taken together they lead to an inference of the accused's guilt.

33. I think that charges in the alternative can be framed for giving false evidence in a judicial proceeding or giving false evidence in any other case. I think the decision in Queen-Empress v. Mvgapa bin Ningapa is incorrect and the decisions in Queen-Empress v. Ismal valad Fataru and Queen-Empress v. Khem, are correct.

34. The defence of india act provides for exclusive trial before the constituted Tribunal. It in no way affects the police investigation or the Magistrate's jurisdiction to take part in the investigation. Indeed section 9 contemplates the fact that a statement may have been taken before the Magistrate. I would, therefore, answer the questions referred:—

(1) In the negative; (2) In the negative. (3) In the affirmative, and questions (4) and (5) do not arise.

Macleod, C.J:— I agree that the answers to the questions referred to the Full Bench should be as given in the judgment of my brother Pratt. The third question is the most difficult one. Section 236 of the Cr PC contemplates a case where an accused person has committed an act or series of acts and it is uncertain on the facts proved which of two or more offences has been committed. A series of acts means two or more acts connected together by some common relation, Clearly a statement on oath before a Committing Magistrate and a statement on oath at the trial of the same accused on the same charge would constitute a series of acts. Accordingly under section 236 a witness could be charged with having given false evidence either before the Committing Magistrate or at the trial. The doubt which arose owing to conflicting decisions was whether it was necessary to prove that one of the statements was false or whether the mere fact that the statements were contradictory was sufficient for a conviction of the offence of giving false evidence. This doubt was set at rest hethe addition of illustration (b) to section 236. It does not appear to have been noticed that section 236 was originally framed to meet the case where it was doubtful whether offence A or offence ??? had been committed at the time where the charge had to be framed. Schedule V, Form xxviii, provided for the framing of charges under two or more head in accordance with the provisions of section 236. But the case of contradictory statements the doubt would be whether perjury had been committed cl occasion A or occasion B, a very different matter. The form of charge in Schedule V, Form xxviii(ii)(4) is, therefore, etricted speaking, not a charge under two heads by a charge under one head for a sing offence. The charge should be either that you committed an offence of givii; false evidence on occasion A or on occused and because the statements are cotradictory you must have committed to offence on one of the two occasions ??? illustration (b) made it clear that it was not necessary to prove on which of the by occasions false evidence had been give. But the illustration does not alter ??? merely explains the section, and it cant be that only the contradictory statement mentioned therein can form the basis of alternative charge.

35. The next point to be noticed is that section 191 of the Indian Penal Code define the offence of giving false evidence, Section 193 provides for the punishment. It does not say that there are two kinds of perjury, but that if perjury is committed in the stage of a judicial proceeding it may be punished more severely than if committed in any other case. The offence is perjury wherever it may be committed.

36. In illustration (b) to Section 286 of the Cr PC, the common relation is the inquiry as to the committal of a particular offence by one or more individuals and that enables the statements made on two different occasions to be considered as a series of acts. But the Police investigation under Chapter XIV has also ??? common relation though it is a wider ??? viz., the inquiry into the committal of a particular offence. Therefore a statement at the Police investigation under section 164 and a statement after judicial proceedings have commenced form a series if acts within the meaning of section 236, of, on the other hand, the common relation an only be the inquiry as to whether one ??? more particular individuals committed ??? particular offence, then they cannot form ??? series of acts. But there is no reason why the wider relation, if it exists, should ??? be taken into account. To hold otherwise would have this disastrous effect, that witnesses might make the most criminating statements under section 164 suiting in persons being charged under the Indian Penal Code, with only the here ??? of such witnesses being held guilty perjury, if they resiled from their statements at the trial. For nothing is more defoult to prove than the fact that a witness ??? made a statement which he knew or receved to be false or did not believe to be ???. It is only when he makes contradiory statements that a real chance of eviction arises. I think unnecessary ??? has been caused by the caseology of section 191 of the Indian pal Code. The act which constitutes offence is the making of a false statement on oath on an occasion when by law the person making the statement bound to tell the truth. If that act had a called ‘perjury’ a term which every understands, there would have been difficulty. But to call it ‘giving false sence’ involves the use of a word which of has several meanings. Clearly ???’ is not used in its restricted meaning of evidence which is given or can be used in the course of judicial proceedings, but in its widest sense including any formal enunciation of facts made for the purpose of establishing a particular conclusion. Thus a creditor who makes a false affidavit of claim against an insolvent's estate or an insolvent who makes a false schedule, gives false evidence and if either of them happened to make contradictory statements before the Court in the course of proceedings under the Presidency Towns Insolvency Act, I do not see why they should not be convicted under section 193 without the prosecution having to prove which of the statements was false: the common relation being the particular insolvency in which the statements were made. In my opinion, therefore, there is a common relation between the statement made before the Magistrate under section 164 and the statement before the Tribunal so that they form a series of acts. He doubt this opinion is in conflict with the Full Bench decision in Queen-Empress v. Mugapa bin Ningapa . But with all due respect to the learned Judges who tried that case the value of their considered opinion is deprived of much of its value by the fact that no reasons are given, and the contrary decision of this Court in Queen-Empress v. Ismail Valad Fataru was not even referred to. It may be that section 236 was considered, but, in my opinion, the real crux is whether the inquiry into the committal of a particular offence without dealing with the question whether a particular individual has committed it can constitute the sommon relation between the two statements and it is impossible to say whether their Lordships considered the question before them from that point of view.

Shah, J.:— I agree with the judgment of my brother Pratt as regards questions Nos. 1, 2, 4 and 5 referred to the Full Bench. I would answer these questions in the same sense, generally for the reasons given in that judgment. As regards question No. 3, I regret that I am unable to accept the conclusion reached in that judgment. I would answer that question in the negative.

37. I have carefully considered the arguments and the statutory provisions bearing on this question, as also the various decisions cited before us. The provisions of section 236 of the Cr PC, are of an enabling and not obligatory nature, and it is open to the Courts, on a fair interpretation of the section, to hold that a statement, which is not evidence in a stage of a judicial proceeding ought not to be linked with a statement which is evidence in a judicial proceeding or at a stage of a judicial proceeding to as to form the basis of an alternative charge. In determining whether any two contradictory statements can form the basis of an alternative charge, the Court must have regard to the nature of the statements. A statement recorded by a Magistrate under Section 161 of the Cr PC, in the course of an investigation under Chapter XIV before the inquiry or trial has commenced, generally speaking, cannot be evidence at the trial while a statement recorded before a Committing Magistrate in the course of the inquiry can be evidence at the trial. The statement recorded under section 164 is one which a witness is under no legal obligation to make, though if he elects to make it, he is bound to state the truth, in view of the provisions of the Indian Oaths Act. The scheme of the Code of Criminal Procedure makes a clear distinction between the stage of Police investigation and that of judicial proceedings by way of inquiry or trial. Though the obligation to state the truth is common to statements recorded under section 164, as well as those made at the inquiry or trial, there is, in my opinion, a clear distinction between these two classes of statements. There is also a difference in the circumstances and surroundings under which the two sets of statements are recorded. This may be taken to be recognised by the Legislature, as the statements recorded under section 164 are not permitted to be treated as evidence at the trial under the Code of Criminal Procedure or the Indian Evidence Act.

38. I am not speaking here of the special provisions of section 9 of the Defence of India Act (IV of 1915). It is not necessary to express any opinion for the purpose of the case as to whether that section applies to statements recorded under Section 164 of the Cr PC. Assuming without admitting that such statements may be used as evidence under the special circumstandes stated in that section, I do not think that circumstance affects in any way the broad consideration that such statements cannot be treated as evidence at any inquiry or trial under the Code of Criminal Procedure.

39. In determining whether a statement recorded under section 164 during the Police investigation and a statement recorded in the course of judicial proceedings at the trial can constitute a ‘series of acts’ within the meaning of section 236, there is no adequate reason to ignore the difference between the two acts. In spite of these considerations I might have taken the view, which is now contended for by the learned Advocate General, and which it is said is well within the scope of section 236, had it not been for the fact that a Full Bench of this Court had by necessary implication put a restricted interpretation upon the terms of section 236. That is the decision in Queen-Empress v. ??? bin Ningapa, . The Full Bench consisting of Sargent, C.J, and Telang, Candy and Fulton, JJ., held that a statement made to 4 Police Officer under section 161 of the Code of 1882 and that made before the Committing Magistrate could not form the basis of an alternative charge, much less of a conviction under section 193, Indian Penal Code.

40. In that case one of the statements was made at a stage of a judicial proceeding and the other was made at a stage ??? investigation under Chapter XIV of the Code then in force, the person making the statements being under an obligation I state the truth on both the occasions ??? is true that no reasons are given for the decision, and no reference is made to the terms of Section 236 of the Cr PC. I do not feel any doubt, however that the conclusion was reached after careful consideration of section 236, which in terms was the same as the corresponding section in the Code of 1898. Thought this reported decision was before the Legislature when the Code of 1898 ??? enacted, I do not find any change the section, which can be reasonal construed as overruling or render obsolete that decision. Illustration (b) the section was added for the first time the Code of 1898. I do not think, however that the illustration touches the press point. As I read the illustration it ??? makes clear that two contradictory statements one made before the Committed Magistrate and the other at the trial form the basis of an alternative charge giving false evidence. It is not pressed before us, and I do not think that it could be reasonably suggested, that the word ‘Magistrate’ in the illustration can mean any Magistrate other than the Committing Magistrate. The illustration, so far as it goes, refers to the linking of two contradictory statements in the course of judicial proceedings for an alternative charge under the same part of section 193, Indian Penal Code. I do not think that the alteration in section 161 of the Code of 1898 makes any difference so far as the application of the decision in Mugapa's case to the point, which we have to decide, is concerned.

41. I am humbly of opinion that the decision in Queen-Empress v. Mugapa is correct, and may be followed so far as it applies ??? the present case. The effect of that decision, in my opinion, is that two contradictory statements, one recorded before the commencement of the inquiry or trial, and the other recorded at the enquiry or trial, cannot form the basis of ??? alternative charge, or conviction under potion 193, even though with reference to each statement the charge of giving false evidence at a stage of a judicial proceeding ??? merely of giving false evidence as the case may be, can be established if the prosecution be in a position to prove that he particular statement is false in fact. The statement recorded under section 164 the present case stands, for the ??? of the point under consideration, on ??? same footing as the statement made to ??? Police Officer under section 161 under ??? Code of 1882 is Mugapa's case .

Fawectt, J.:— I agree in the answers ??? reasoning given in the judgment of my other Pratt.

42. As to the third question, it is true that illustrations (b) to section 236, and the form charge in No. xxviii of Schedule V the Code of Criminal Procedure, presumably ??? to contradictory statements in an quiry before a Committing Magistrate ??? in a trial before a Sessions Court; but ??? by no means justifies the view that Legislature intended to confine the ??? to frame an alternative charge under section 236 to the case of contradictory statements falling under the first part of section 193, Indian Penal Code, or to a ??? where both statements fell under the ??? part of that section. The illustrations forms are useful guides to the meaning of a section, but do not constitute the main enactment.

43. The expression ‘series of act's in section 236 is very wide, and I do not think there is any legitimate ground for holding that the circumatances that a statement under section 164 is voluntarily made and cannot itself be treated as evidence of the facts stated therein operate to prevent it being one of a ‘series of acts’, taken in conjunction with a connected statement made by the same person ‘in a stage of a judicial proceeding.’ The offence of “giving false evidence,” which is defined in section 191, Indian Penal Code, applies to each of the two acts, if the statement is false, etc.; and the fact that under section 193 one of the acts is liable to a greater penalty than the other is immaterial, except in regard to the question of punishment, which is dealt with in section 72, Indian Penal Code. Sub-section (3) of Section 367 of the Cr PC, makes it clear that there can be a conviction in the alternative in a case, where there is a doubt as to which of two parts of the same section applies, just as much as in a case where a doubt arises as to which of two sections applies and this suffices to show that section 326 is also intended to cover the former case. Nor does it seem necessary to state in the charge that one of the statements falls under a particular part of section 193, Indian Penal Code, and the other statement under another part of that section. Thus section 304. Indian Penal Code, is divided into two parts, drawing a distinction in the penalty to be inflicted for culpable homicide not amounting to murder, according to the convict's intention or knowledge; but the form of charge under section 304 in No. xxviii(1)(6) and ii(2) of Schedule V of the Code does not require the particular part of section 304, under which the accused is charged, to be stated. Under section 221(2) it suffices to give the specific name of the offence, which in the case under consideration is that of “giving false evidence,” whether it be “in a stage of a judicial proceeding” or “in any other case.”

Setalvad, J.:— I agree in the answers given in the judgment of Pratt, J., to the questions referred to the Foil Bench. As regards question No. 3, I fully concur in the reasons given in the judgment of the learned Chief Justice. The real question is, whether a statement made by a witness on oath under section 164 of the Cr PC during the course of investigation under Chapter XIV, and a statement made by the same witness at the trial constitute ‘a series of acts’ within the meaning of Section 236 of the Cr PC, so that an alternative charge can under that's action be framed in respect of such statements. I have no doubt that they do constitute a ‘series of acts’. On information being given of an alleged offence, an investigation takes place under Chapter XIV of the Code of Criminal Procedure; following on such investigation, the inquiry before the Committing Magistrate takes place and lastly comes the Sessions trial. There is a common relation between all acts done in the course of these three stages and statements made by the same witness at one or more of these stages constitute a series of acts. It was contended that only offences of identical nature can be the subject of an alternative charge. There is no such restriction to be found in section 236 of the Cr PC. But assuming there is such a restriction, the offences which form in this case the subject of the alternative charge are, in my opinion, identical. The charge is that the accused in obis case either gave false evidence when he made his statement under section 164 or he gave false evidence in his statement before the Tribunal. Giving false evidence before the Tribunal being in a stage of a judicial proceeding falls within the first part of section 193 of the Indian Penal Code; and giving false evidence in the course of a statement under Section 164 of the Cr PC falls within the second part of section 193 of the Indian Penal Code. But in either case, the offence is the one defined in section 191 of the Indian Penal Code, vis., ‘giving false evidence.’

44. (The following is the final judgment delivered on 20th October 1920 on opinion given by the Full Bench)

Macleod, C.J:— It has now been decided in this case by the Full Bench that the statement made on oath by a witness before a Magistrate under Section 164 of the Cr PC, can be made the basis of an alternative charge together with a statement made on oath at the trial, provided there was a common relation between the two statements. There is a common relation in this case, and, therefore, the accused could be convicted with having given false evidence by the mere fact that he had made contradictory statements, one before the Magistrate and one at the trial.

45. It has been argued, however, that there has been either a want of or an irregularity in the sanction required by Section 195 of the Cr PC. Assuming that when contradictory statements are made before different Courts, the sanction of each of those Courts is required before a Court can take cognizance of the charge of giving false evidence, and assuming that the Magistrate in this case who recorded the statement under Section 164 of the Cr PC, was a ‘Court’ there is no; doubt the it the sanction of the Magistrate was not obtained. But the sanction given by the Tribunal was to the effect that am inquiry should be made with regard to the contradictory statements made by the accused before the Tribunal and before the First Class Magistrate when he was examined under Section 164 of the Cr PC. There is no doubt that the accused had sample notice of what he was being charged with, and it was open to the accused when the Magistrate ??? the proceedings to take the objection that the Magistrate could not take cognizance of the charge for want of sanction of the First Class Resident Magistrate who recorded the statement under section 164 of the Cr PC. Although an objection was taken before the trying Magistrate no application was made to a higher Tribunt to stop the proceedings on the ground the a proper sanction had not been given. It is true that in appeal the learned Session Judge thought that no sanction we necessary because he considered that the Resident Magistrate was sub-ordinate to the Tribunal.

46. However that may be, assuming the there is an irregularity in the sanction which was required by Section 195 of the Cr PC, before the Magistrate could take cognizance of the charge again the accused, Section 537 of the Cr PC, is very clear as to what cour is open to the High Court in revision when it is brought to its notice that there has been an irregularity in the section. It provides that

“No finding, sentence or order passed by Court of competent jurisdictions shall be reversed altered under Chapter XXVI of on appeal revision on account of…(b) the want of or any irregularity in any sanction required by Section 195 (of the Cr PC) or any irregularity in Proceedings taken under S. 476….unless such error, emission, irregularity, want…baa in fact occesioned a failure of justice.”

47. In Sunder Dasadh v. Sital Mahto (14) the petitioners were convicted and sentenced to fine under section 206, Indian Penal Code, without any sanction being given under Section 195 of the Cr PC, and the Court said:

“No doubt sanction to the prosecution should have been given before the Magistrate took cogainance of that offence, but unless the want of such santion has, in fact, occasioned a failure of justice Section 537 of the Cr PC), the conviction is not bad only on that account. There is nothing in the proceedings to show that this is so.”

48. I should not go so far as to say that in this case there was a want of sanction, ??? at is to say, an entire want of sanction, there was the sanction of the Tribunal, may be said that there was a deficiency ??? the sanction as the Magistrate had not noticed prosecution. But however that ??? be, it cannot be said that this want sanction or deficiency or irregularity in ??? sanction granted has in fact occasioned failure of justice. It has been proved it the accused had made directly contratory statements which constitute the ??? of giving false evidence within the lining of section 191, Indian Penal Code, an in conjunction with Section 236 of the Cr PC. Therefore, there ??? reason why we should interfere with conviction on the ground of any want anction or deficiency or irregularity he sanction.

49. ??? seems to me the question whether Magistrate recording a statement under Section 164 of the Cr PC, is a ??? or not is now irrelevant, considered the Full Bench in this case has held these two contradictory statements form the subject of a charge of giving evidence. If he is not a Court no ??? would be required. But it has held by the Madras High Court that magistrate recording a statement on oath ??? section 164 of the Cr PC was a Court (see Queen-Empress v. ??? Kone and that decision was ??? in Suppa Tevan v. Emperor seems unfortunate that although the ??? ‘evidence’, ??? ‘judicial proceedings’. ??? ‘Court of Justice’ are used in the Indian Penal Code, Code of Criminal Procedure, the Indian Evidence Act and other Acts, there is no general definition of these terms applicable to any Act in which they appear. But ‘Court’ is defined in the section 3 of the Indian Evidence Act, as including “all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence”, and under Section 164 of the Cr PC, a Magistrate is bound to record the statements made to him in such of the manners thereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. If there were anything at all in the point, I should say that there was considerable justification for the decision of the Madras High Court that the Magistrate recording a statement under Section 164 of the Cr PC, was a ‘Court’.

50. But it seems to me the point is immaterial because under section 191, Indian Penal Code, the offence of giving false evidence is committed by making a false statement on oath when a person making a statement is legally bound by an oath or by an express provision of law to state the truth. When the law provides, therefore, for any case in which a person can be bound by an oath to speak the truth, and such a person makes a statement which is false, and which he either knows or believes to be false or does not believe to be true, then he is said to give false evidence, and there is no necessity that such a statement should be made in or before a Court, what ever the definition of Court may be. He is liable to be punished under section 193, Indian Penal Code, which provides however that a more severe punishment can be inflicted if the offence is committed at any stage of a judicial proceeding than if it is committed in any other case. Therefore there is no reason to interfere with the conviction in this case. The original sentence of two years passed by the City First Class Magistrate was reduced by the Sessions Judge to one year's rigorous imprisonment, and, therefore, that is well within the period of imprisonment prescribed by section 193, Indian Penal Code, when the false evidence is not given in any stage of a judicial proceeding. Considering all the circumetances we reduce the sentence to six months. This decision will cover the other two casas, Revision Applications Nos. 188 and 199, in which also the sentences are reduced to six months respectively.

Shah, J.:— I concur in the order proposed by my Lord the Chief Justice. In view of the opinion of the majority of the Full Bench by which this Court is bound, it is clear that the two contradictory statements, one of which is recorded by the Magistrate under Section 164 of the Cr PC, not at any stage of a judicial proceeding, and the other recorded by the tribunal in the course of a judicial proceeding can form the basis of an alternative charge under the latter part of section 193, Indian Penal Code.

51. There is only one more point which has been raised on behalf of the applicant, that the sanction of the Magistrate before whom the statement under Section 164 of the Cr PC, was recorded was not obtained in this case, and that without his sanction the trial Magistrate could not take cognizance of the case on an alternative charge. No doubt, an order under Section 476 of the Cr PC, was made by the Commissioners appointed under the defence of india act. But it is clear, on the decision of this Court as also on the provisions of the Code, that in the case of an alternative charge under section 193, Indian Penal Code, based upon two statements made before two different Courts, the sanction of both the Courts or of Courts to which these two Courts may be sub-ordinate for such an alternative charge is necessary. It is true that the applicant in this case could not have applied to this Court to revise the order under Section 476 of the Cr PC, made by the Commissioners appointed under the defence of india act. But after the proceedings were sent up to the trial Magistrate in this case, the plea based upon the want of sanation of the Magistrate, who had recorded the statement under Section 164 of the Cr PC, could have been taken, and, as we understand from the argument, it was taken. The trial Magistrate apparently overruled that objection. It was open to the present applicant at that stage to have moved this Court to stay proceedings for want of such a sanction. The trial Court, however, proceeded with the case and the accused was convicted. The Sessions Judge has overruled the plea on the ground that such sanction was granted in this case by the Commissioners under the defence of india act, as a superior Court. This point is now taken before us. In view of the provisions of section 537 of the Cr PC, it is clear that the want of any sanction or any irregularity in the sanction required by Section 195 of the Cr PC, cannot be made the basis of interference in revision unless such want of sanction or irregularity has occasioned a failure of justice. It cannot be said in the present proceedings that the want of such a sanction has occasioned a failure of justice, though the objection was raised apparently before the trial Court. I may add that I am unable to accept the Sessions Judge's view that for the purpose, of section 195 the First Class Magistrate was a Court sub-ordinate to the Commissioners appointed under the Defence of. India Act. I take it for the purpose of this argument that the Magistrate recording the statement under Section 164 of the Cr PC, was a ‘Court’ under the Code of Criminal Procedure. I my opinion there can be no doubt that duty which the Magistrate is require to perform by way of recording a statement under Section 164 of the Cr PC, is to be performed by him as Magistrate, i.e, as a Court. The further argument which has been urged on the basis that the Magistrate is not a Court does not really arise. But I may add wise reference to that argument that if the Magistrate were not a Court, the position of the applicant would become weaker, a not in any sense stronger, so far as ??? point relating to the want of sanction concerned.

52. Thus it seems to me that though ??? sanction of the First Class Magistrate Nadiad, who recorded the statement under Section 164 of the Cr PC, ??? necessary, we cannot interfere in revision on that ground under the circumstance of this case.

53. Order accordingly.

Purshottam Ishvar Amin v. Emperor

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Accused's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Purshottam Ishvar Amin v. Emperor

Comments