Tyrrell and Blair, JJ.:— This is an appeal by the Local Government under s. 417 of the Code of Criminal Procedure from the order of Mr. Lyle, Joint Magistrate of Benares, dated the 5th of June 1893, acquitting the abovenamed Francis Robinson of an offence punishable under s. 193 of the Indian Penal Code read with s. 60 of the Act XV of 1872, on the grounds, first, that it was essential to the doing of justice that the Magistrate should have summoned and examined as witnesses the Rev. H.A Sealy and Mr. Charles Woodward under the powers conferred by ss. 252 and 540 of the Code of Criminal Procedure, inasmuch as the Magistrate was well aware of the importance of the evidence those witnesses were in a position to give, and, secondly, that the Magistrate ought not to have refused the complainant's application to summon certain witnesses. The applicant thereupon prayed this Court to direct the re-trial of the accused and to direct the Magistrate to take the evidence of the Rev. Mr. Sealy and Mr. Charles Woodward and to certify the said evidence to this Court. The Magistrate has been directed to take and certify such evidence as prayed and the evidence of the Rev. Mr. Sealy has been taken and certified accordingly. It has not been possible to take the evidence of Mr. Woodward.

There now remains for decision the single question whether the petition of appeal, in so far as it prays for a re-trial, ought to be [214] admitted or summarily rejected under the provision of s. 421 of Act X of 1882. The Court has perused the petition, the copy of the order complained of, has sent for and perused the record, and has heard the learned Public Prosecutor in support of the application.

The principles to be applied on the hearing of this appeal are fully and satisfactorily laid down in the case of the Empress of India v. Gayadin. In considering an appeal by Government against an order of acquittal, it is not for the High Court to say whether, if it had been trying the case, it might not have taken a view opposed to that of the lower Court. That is not the test to be applied to determine such an appeal. While the High Court fully recognizes the necessity for the existence of such powers in the Local Government in this country, it is equally clear that those powers should be most sparingly enforced; and in respect to pure questions of fact, only in those cases where, through the incompetence, stupidity or perversity of a subordinate tribunal, such unreasonable or distorted conclusions have been drawn from evidence as to produce a positive miscarriage of justice. It is not because a Judge or Magistrate has taken a view of the case in which the Government does not coincide, and has acquitted the accused persons, that an appeal from his decision must necessarily prevail, or that the High Court should be called upon to disturb the ordinary course of justice by putting in force the arbitrary powers conferred by s. 417. The doing so should be limited to those instances in which the lower Court has so obstinately blundered and gone wrong as to produce a result mischievous alike to the administration of justice and the interests of the public. The Sessions Judge in the present case has had the witnesses before him, and consequently the best opportunity of judging their truth; and he appears to have conducted the inquiry with care and patience, and to have weighed and considered the facts to the best of his ability. It may be that the High Court may have arrived at a different view; but holding this decision to be an honest and not unreasonable one, of which the facts were suscentible, the High Court unhesitatingly dismissed the appeal.

[215] The facts of the present case are these:— The accused person, who is an Englishman and a member of the Church of England, was contemplating marriage with the sister of his deceased wife. With a view to procuring the solemnization of the intended marriage, a sworn declaration was made by Robinson and the lady he intended to marry, the material words of which are:—“Deponents further make oath and say (each as to his and her own belief), that there is no let or impediment of pre-contract, kindred or alliance, or any other lawful cause whatsoever, or any suit pending in any Ecclesiastical Court, to bar or hinder the said intended marriage.”

The defendant was brought into Court upon the allegation that at the time he made the said declaration he knew as a matter of fact that it was untrue. That he was aware that the person he intended to marry was the sister of his previous wife is beyond doubt, as is proved by a letter written by him to the Rev. Mr. Jones on the 13th of December 1892, but his defence was based on the statement that he was not aware at the time of making the declaration that such affinity constituted an impediment within the meaning of s. 18 of Act No. XV of 1872 to bar or hinder the said marriage.

That such a marriage between Roman Catholics would be illegal has been held by a Full Bench of the High Court of Calcutta in the case of Lopez v. Lopez, wherein it was held that the prohibited degrees for parties to that marriage (who were not of English domicile) were those prohibited by the customary law of the class to which they belonged, that is to say, the Law of the Roman Catholic Church as applied in this country. Three years later Mr. Justice Straight in an unreported case [Pimen v. Hindhaugh, Matrimonial Jurisdiction No. I of 1888) held that a similar marriage between English people who were also members of the Church of England was invalid, basing his decision on the ground that both parties were domiciled in England and, as such, were subject to the English Law.

In the case of Hilliard v. Mitchell in (2), Mr. Justice Wilson held that persons being of English domicile and also members of the [216] Church of England were prohibited from such a marriage, both by the law of England and by the law of the class, to wit, the Church of England, to which they belonged. We are not disposed on an ex parte application to controvert the soundness of these rulings, which indeed have not been questioned by the Magistrate in his adjudication.

We have now to consider whether this is a case to which the doctrine of “ignorantia juris non excusat” can be held to apply. Section 66 of Act No. XV of 1872 makes penal the “intentionally making a false oath.” The alleged false declaration was made “to the best of the deponent's belief.” The word “intentionally” would be superfluous if the law is taken to impute knowledge whether it in fact exists or not. The limitation “to the best of his belief” would be removed by holding that such belief or non-belief was immaterial. But s. 18 of Act XV of 1872 imposes a declaration of belief only. It is in these words “that he or she believes that there is not any impediment of kindred, or affinity, or other lawful hindrance to the said marriage.” We therefore are of opinion that the Magistrate rightly tried the question whether it was proved satisfactorily that the accused was conscious that he was making a false declaration when he deposed that he did not in fact know that there was any legal impediment to the intended marriage. Indeed, we do not think the contrary proposition was seriously maintained or raised in the petition of appeal.

The evidence pro and con seems to have been ably and impartially discussed by the Magistrate, and we certainly do not think that the conclusion at which he arrived was an unreasonable one. The standard of proof in a criminal trial is not the same as in an ordinary civil case. No conviction should be arrived at unless upon clear, cogent and coherent evidence which leaves upon the mind no substantia doubt. The fact that one reverend gentleman was willing to perform the ceremony in the present case, and that another responsible functionary had, under the advice of the Advocate-General of Bengal, solemnized a marriage between persons similarly related, would hardly conduce to the belief that the prohibition of such [217] marriages was imperatively enacted by the law. It might have been so laid down by Ecclesiastical authority, and might also form part of the law of England; but to a person who knew or believed he knew that there were parts of the British dominions not remote from India where no similar restriction was in force, the inference would be by no means clear that the law in India followed in this respect the law of England. It was an inference not drawn by the Magistrate until referred to authority, nor by the Rev. Mr. Jones nor by Mr. Kemble. It seems difficult then to impute a more accurate knowledge to the manager of the refreshment-room at Buxar station. The evidence of the Rev. Mr. Sealy taken by special order of this Court is instructive on this point. He says:—“I was not sure that in India the law was the same as in England, nor did I know that there was any difference between the state of things in India and Caylon.”. He states also, in relation to Mr. Charles Woodward, who was the brother of the lady proposed to be married and strongly opposed to the marriage, that “the reason he gave” (for opposing the marriage) “was that it was contrary to the law of the Church of England and that as a communicant member he objected to it.” The inference seems obvious that Mr. Charles Woodward also was ignorant that such a marriage was illegal.

The silences and concealment on the part of the accused, upon which the prosecution relies as proof of guilty knowledge, may be fairly and naturally explained by his desire to escape obstruction by the Ecclesiastical authorities conscientiously acting for the enforcement of Church law and do not constrain us to impute to him knowledge that his proposed marriage was in violation of the law of the land. The evidence of Mr. Sealy, taken at the instance of the complainant, appears to us to fully justify the finding of the Magistrate. He says that Robinson expressed his willingness to go to Ceylon or some other colony to be married, if the intended marriage was illegal in India. Mr. Sealy also says in answer to the accused:— “I should not have thought it possible that you would have done anything which you knew to be coutrary to the law, and which would render you liable to a criminal action. I never [218] pointed out that you would he liable to any legal penalty. I only pointed out what your position would be in society and in the eyes of the Church.” Mr. Sealy also gave the accused a high character for integrity and straight for wardness.

Under these circumstances we are satisfied that no case has been established for the exercise of our exceptional jurisdiction. We therefore reject this petition of appeal.