Sakhi Rai Accused v. Emperor Opposite Party.

1. This is an application against an order of the Sub-divisional Officer of Shahabad directing the prosecution of the petitioner under Section 476 of the Cr PC, for an offence under S. 193, I.P.C The facts appear to be as follows: One Angrahit Roy lodged an information before the police against Deonarain Dusadh and others under Ss. 147, 379 and 225, I.P.C, on 16th September, 1917. On 22nd September, 1917 the complainant lodged a complaint before the Sub-divisional Officer, who after examining him on oath ordered the complaint to be put up with the police report. On 25th September the Sub-divisional Officer passed the following order:

“Call on the complainant to show cause why he should not be prosecuted under s. 211; I.P.C, and fix 5th October, 1917.”

2. On 4th October, 1917 the complainant showed cause by a petition asserting that his case was true and that he was ready to prove his east by evidence. On 5th October, 1917 the Sub-divisional Officer passed the following order:

“To Moulvi Badruddin Choudhuri for favour of recording evidence. Court Sub-Inspector will cross-examine the witnesses in the light of police report.”

3. The petitioner Sakhi Rai was examined by the complainant as a witness in the Court of Moulvi Badruddin Choudhuri and made the following statements:

(a) The police officer did not go to the village, (b) I did not accompany the complainant when he went to the thana for lodging information, (c) I was not examined by the Sab-Inspector. (d) I was once fined Rs. 200, the decision was upset in appeal.

4. On 6th October, 1917 the evidence was placed before the Sub-divisional Officer, but the Court Sub-Inspector filed a petition for the examination of two Sub-Inspectors and called for the criminal file register for 1915 in order to prove the falsity of the statements of the aforesaid witness. On 16th October, 1917 the Sub-divisional Officer passed the following order: “To Mr. Haider for favour of recording evidence.” Mr. Haider examined one witness and the case was then put up before the Sub-divisional Officer on that very day. The Sub-divisional Officer then made the following order: “Call the Sub-Inspector Muhammad Raza on 3rd November, 1917.” On that day Mr. Kaviraj, another Magistrate, was asked by the Sub-divisional Officer to examine the Sub-Inspector Muhammad Raza, who after examining him submitted the record to the Sub-divisional Officer again.

5. On 5th November, 1917 the Sub-divisional Officer on a scrutiny of the evidence of the witnesses examined by the several Magistrates disbelieved the complainant's witnesses and dismissed the complaint under Section 203 of the Cr PC. He also held that there was no sufficient evidence for prosecuting the complainant under S. 211 and accepted the cause shown by him. He however drew up proceedings against the petitioner for his prosecution under S. 193, I.P.C, apparently because his statement quoted above, recorded by Moulvi Choudhuri Badtuddin, was in conflict with the evidence of the Sub-Inspector recorded by other Magistrates. The petitioner's statements were recorded by Moulvi Choudhuri Badruddin in pursuance of an order of the Sub-divisional Officer of 5th October, 1917. Moulvi Choudhuri Badruddin was not directed by this order to make any local inspection or any enquiry and it could not be an order under Section 202 of the Cr PC, which requires that the Magistrate taking cognizance of an offence may, for reasons to be recorded by him, postpone the issue of process against the accused and either enquire into the case himself or direct a previous local inspection to be made by any officer subordinate to such Magistrate: vide Hari Charan Gorai v. Siris Chandra Sadhukhan(1). The direction to Moulvi Badruddin Choudhuri was not made in terms of the section. There is no other section in the Code of Criminal Procedure under which the direction was given to Moulvi Badruddin Choudhuri to record the evidence of this witness. The same remark applies to the orders of the Sub-divisional Officer directing the evidence of the two Sub-Inspectors as witnesses to be recorded by Messrs Haider and Kaviraj.

6. The complainant in the case was called upon to show cause why he should not be prosecuted under S. 21, I.P.C This was obviously upon the police report which recommended the prosecution of the complainant for instituting a false case. The Magistrate took cognizance of the offence committed by the complainant under S. 211, I.P.C Section 476 of the Cr PC, is the only section under which the complainant could be called upon to show cause why he should not be prosecuted. The preliminary enquiry to be held under S. 476 could not be directed to be held by any other Magistrate except the Sub-divisional Officer himself, who on the police report thought that the case of the complainant was a false one and gave him a chance to show cause. From this point of view also the Honorary Magistrate Moulvi Badruddin Choudhuri had no jurisdiction to record the evidence of the petitioner in respect of which he is directed to be prosecutes. The petitioner therefore did not give “false evidence at any stage of a judicial proceeding,” as is required by S. 193, I.P.C The order of the Sub-divisional Officer directing the prosecution of the petitioner under S. 193, I.P.C, appears to be without any jurisdiction. In Haibat Khan v. Emperor(2) it was held:

“that the District Magistrate before whom the police reported the case to be false could not make an order directing the prosecution of the complainant under S. 211 upon an enquiry held by a Subordinate Magistrate, inasmuch as the District Magistrate did not obtain knowledge of the falsity of the case in the course of the judicial proceeding.”

7. This principle was followed in a later case in Abdul Rahman v. Emperor(3). The principle referred to above applies with greater force to the present case, in which the proceeding has been taken under S. 193, I.P.C, against the petitioner. I therefore hold that the order of the Sub-divisional Officer directing the prosecution is bad and should be set aside on the above ground alone. It appears that the reason for holding that the statements of the petitioner are false is that the Sub-Inspectors examined by Messrs Haider and Kaviraj denied the truth of those statements.

8. The fact that the police authorities were directed to cross-examine the complainant's witnesses shows that the direction of the Honorary Magistrate and the other Magistrates to record evidence of the complainant's witnesses was not in pursuance of an order under Section 202 of the Cr PC, inasmuch as the accused or the police officers had no locus standi to appear and cross-examine the witnesses for the complainant in an enquiry under S. 202, which enquiry is strictly restricted to the taking of the complainant's evidence ex parte. For all these reasons the order directing the prosecution of the petitioner for giving false evidence under S. 193, I.P.C, is illegal and I accordingly set it aside.

V.S/R.K

9. Order set aside.