Rampini, J.:— This is a rule calling upon the Deputy Commissioner of Palamow to show cause why the order passed by the Judicial Commissioner, sanctioning the prosecution of the applicant, under seertion 193 of the Indian Penal Code, should not be set aside on the ground that the Magistrate could not legally examine him on oath at the time when the false statement is said to have been made, or why such other or further order should not be made as to this Court may seem fit.
2. The facts of the case are these. The applicant before us was a party to a proceeding under section 130 of the Code of Criminal Procedure, that is, a proceeding for the removal of an obstruction. He was examined before the Magistrate on oath and made a statement, which the Magistrate found to be false. He was therefore prosecuted under section 193, I.P.C and convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500. On appeal to the Judicial Commissioner, that Officer set aside the conviction and sentence, on the ground that the charge, as framed, was defective; and he remanded the case, in order that it might be re-tried on a charge properly framed.
3. Then in this Court a Rule was obtained, on the ground that was not urged before the Judicial Commissioner that, as the applicant was a party to the proceeding which had been instituted against him under section 133, C. Cr. P., the Magistrate was not entitled to put him on oath, or to call upon him to give evidence in the case.
4. The learned pleader on behalf of the applicant contends before us that his client was in the position of the accused person and therefore, under S. 342, C. Cr. P. the Magistrate was not authorised to administer an oath to him when he give evidence. He also contends that an accused person is any person against or over whom a Magistrate or other Court is exercising jurisdiction. In support of these contentions, he calls attention to the cases of the Queen-Empress v. Mona Puna (1), Jhoja Singh v. The Queen-Empress (2), and the Queen-Empress v. Mutasaddi Lal (3). He also relies upon section 488, C. Cr. P. Now, no doubt, the first of these cases does apparently lay down that by the word “accused” in section 342, C. Cr. P. is meant “any person over whom a Magistrate or other Court is exercising jurisdiction.” This, however seems to us to be too wide a definition, and it would appear that the learned Judges who were deciding the case of the Queen Empress v. Mona Puna (), in defining the word ‘accused’ in such broad terms were somewhat beyond the necessities of that case. In that case several persons had been arrested in a matter under Police investigation, one of whom Hari, made certain disclosures to the Police, who thereupon discharged him and made him a witness. At the trial he gave evidence against his accomplices who were all convicted. It was therefore contended that the man Hari was an accused and that his evidence was inadmissible. But the learned Judges held that he was not an accused and that his evidence was admissible, because the Police had discharged him and the Magistrate was not exercising jurisdiction against him at that time. The decision is directed to the question of the time at which a person ceases to be an accused. Probably the learned Judges did not mean to go further than to lay down that the “accused” Hari was no longer in the position of an accused, as at the time when he gave evidence, no jurisdiction was being exercised against him. If they did, their decision was an obiter dictum. Then in the cases of Queen-Empress v. Mutasaddi Lal* (), the persons concerned were persons against whom proceedings were being taken under Chapter VIII of the Code of Criminal Procedure, that is, proceedings for the purpose of binding them down to keep the peace. Now, when a person against whom proceedings under Chapter VIII were taken does not obey the order passed against him, he is liable to be punished with imprisonment; and this differentiates the case of such a person very much from the case of a person against whom proceedings under section 133, C. Cr. P. have been taken. The proceedings in the latter are more of the nature of Civil than of Criminal Proceedings.
5. Then the learned pleader for the applicant relies on section 488 C. Cr. P.; and he points out that a person against whom proceedings for maintenance are being taken is, in clause (7) called an accused person. That may be so; but it will be seen, from clause (3), that a person who does not comply with an order for maintenance passed against him under section 488, is liable to be sentenced to imprisonment which may extend to one month.
6. That being so, we think that the cases cited by the leaned pleader for the applicant are entirely distinguishable from the present case; and, furthermore, we may call attention to the fact, that throughout the Chapter in which section 133 occurs, namely, Chapter X, a person against whom proceedings are taken, under that Chapter is never called an accused person, but is always spoken of as a person against whom proceedings are being taken, and the reason for this would appear to be that, if he neglects to obey the order passed, he is not liable to punishment. If he disobeys that order, he can apply for the appointment of a Jury to try whether the order is reasonable and proper; but if he does not carry out the order or show cause, or apply for the appointment of a Jury, he is liable to the penalty prescribed in that behalf in seetion 188, I.P.C
7. In these circumstances, the applicant cannot in our opinion be held to be an accused person and there is nothing to prevent his being examined on oath. We would here point out that it would be very dangerous to hold that a person against whom proceedings under Chapter X of the Code of Criminal Procedure are being taken, is an accused person, because then it would follow that all persons against whom quasi Civil proceedings are being taken under the Code of Criminal Procedure are accused persons and may make false statements on oath, without being liable to punishment. For example, a person who is a party to a proceeding under section 145, C. Cr. P. would seem to be in exactly the same position as a person against whom proceedings taken under section 133; and if so we were to lay down that a person against whom proceedings under section 133 are being taken are accused persons, then it would follow that a person against whom proceedings under section 145 are instituted cannot be examined on oath and can make any false statements he pleases without being liable to punishment.
8. For these reasons we discharge the Rule.
9. Rule discharged.