R.F Rampini, A.C.J and Sharfuddin, J.:— This is a rule calling on the District Magistrate of Murshidabad to show cause why an order of the 1st Munsif of Raghunathganj under a. 476, Criminal Procedure Code, directing the prosecution of the petitioner for making a false affidavit before the Additional Munsif should not be set aside.
2. The facts of the case are that the petitioner is the son of a person who had a suit before the Additional Munsif of Raghunathganj. In this suit the processes against the defendant were returned unserved. The peon, Satish Chandra Singh, reported that he could not serve the summons because the defendants did not reside in the village they were alleged to live in, nor had they any house in that village and that they had gone home to the district of Jessore. The petitioners' father then presented a petition to the Additional Munsif supported by an affidavit sworn to by the petitioner, in the 3rd para, of which it was stated that the report of the peon who went to serve the summonses is false, The summons was subsequently served by another peon on the defendant in the village mentioned by the plaintiff, and the Additional Munsif ordered an enquiry to be made into the conduct of the peon.
3. The Additional Munsif was then transferred and the suit in which the petitioner's father was plaintiff was made over to the 2nd Munsif, but the miscellaneous proceeding in which the conduct of the peon was the subject of the enquiry was continued by the 1st Munsif. He came to the conclusion that the report of the peon was correct, and called upon the petitioner to show cause why he should not be prosecuted. The petitioner did not appear. The 1st Munsif then under section 476 directed his prosecution before the Magistrate of Jangipore.
4. It is contended that the prosecution of the petitioner is contrary to the decision of a Full Bench of this Court in Begu Singh… v. The Emperor…Opposite Party.al) (1) which lays down that such an order can only be passed by the Officer before whom the false statement was made and not by his successor. The Mansif, who shows cause, contends that his action is in accordance with the views of Mr. Justice Gaidt in that case.
5. Mr. Douglas White, who appears for the Grown, admits that the order of the Munsif is contrary to the views of the majority of the Judges in the Fall Bench case above referred to. He admits that the views of the majority in that case may, in cases of transfer of the individual Officer before whom a false statement is made, lead to a failure of justice, as may have taken place in the present case. He also cites the case of Ranga Ayyar v. Emperor (2), in which a view contrary to that taken by the majority of the Judges in Begu Singh… v. The Emperor…Opposite Party. () has been expressed.
6. We are, however, bound to follow the Fall Bench decision of this Court. We must accordingly make the Rule absolute, and set aside the order of the 1st Munsif complained of, which we accordingly do.
7. Rule made absolute.