T.N.R. Tirumalpad, J.C.
1. The learned Sessions Judge has made this reference with a recommendation that the order to file a complaint against the petitioner made by Shri P. K. Roy, Munsiff-Magistrate, Sonamura on 80-9-1959 may be set aside and the proceedings in C. R. case No. 447 of 1959 which has been started against the petitioner on the basis of the said order may be quashed.
2. One Julfu Meah filed a complaint against Chand Meah and 4 others alleging that the 5 accused conspired together and forged a power of attorney as if it has been executed and registered in Pakistan by the complainant in favour of Chand Meah authorising the latter to transfer the complainant's property and that by virtue of the said false power of attorney Chand Meah executed a sale deed of the complainant's property in the name of the rest of the accused
Thus they were accused of offences under Section 120B and Section 467, I.P.C. There was art enquiry into the complaint before Shri P.K. Roy, Munsiff-Magistrate, Sonamura and the prosecution examined 7 witnesses. The defence also examined 7 witnesses. The Magistrate committed all the accused for trial under the two offences mentioned above.
3. The Magistrate went further and in his. committal order he directed two of the defence witnesses namely, D. Ws. 6 and 7, D. W. 6 being the petitioner herein to be proceeded against for fabricating false evidence. We are concerned in the present petition only with D. W. 6 Md. Ismail. This Md. Ismail was examined in the case to prove that the original power of attorney was entrusted to him, that it was stolen from his house and that he-lodged a complaint in the Police station about the theft and that there was a Police investigation, The learned Magistrate went into the truth of the evidence given by D. W. 6 Md. Ismail though, strictly speaking, ft was not necessary as a 3efence to the charges under Section 120B or 467, I.P.C.
4. The complaint lodged by Md. Ismail on 1-12-1958 about the theft in the Police station, long before the present Criminal case started, was
produced in Court and the Officer-in-charge of the Police station who took down the complaint was examined by the Magistrate as a Court witness. It was found that the Police had referred the complaint as a true one but stating that the criminal could not be apprehended. But the Magistrate took a different view.
that the complaint was false and that It had been fabricated with ulterior motive, that the complaint in question had got material bearing on the Criminal case before him and that it has been fabricated knowingly, most
probably in connivance with other interested persons with intent and purpose being used in any stage of a judicial proceeding and that in fact it has been used in the case before him.
He, therefore, held that Md. Ismail should be penalised for fabricating false evidence. Accordingly on the same date the Magistrate preferred the complaint under Section 476 Cri. P.C. against Md. Ismail
for fabricating false evidence by way of lodging a first information in the Sonamura Police station 00 l-12-l958 knowing it to be false and with ulterior motive; by using that and by making a false deposition before this Court in a proceeding C. R. case No. 559 of 1958.
I am unable to understand the latter portion of the words used by the Magistrate in the complaint. It is not correct English in the first place. Secondly the actual complaint is not quite clear. In his committal order the Magistrate has charged Md. Ismail only with fabricating false evidence but in the complaint he has used the additional words 'by using that and by making a false deposition before this Court in a proceeding C. R. case No. 559 of 1958'.
This would indicate probably that the Magistrate was increasing the scope of the complaint by accusing Md. Ismail not only of fabricating false evidence but also of intentionally giving false evidence. But the words used in the complaint are far from happy and are not free from vagueness. The Magistrate should have been careful in using correct English and in expressing himself in a clear language in a petition of complaint.
5. The learned Magistrate has given his reasons in detail for proceeding against Md. Ismail in the committal order. Actually he examined the Court witness not for the purpose of the case before him but for the purpose of proceeding against Md. Ismail. Thus he has purported to act under Section 479-A Cri. P.C. even though the section mentioned by him in the complaint was Section 476. Otherwise in a proceeding under Section 476 there is no provision to give his reasons for proceeding against any witness under Section 193 I.P.C. in the order itself. Under Section 476 even where the Court proceeds suo motu the Court records a separate finding to that effect after such preliminary enquiry as it thinks necessary before making a complaint.
It is under Section 479-A that the Court records the finding at the time of the delivery of the judgment or final order disposing of such a proceeding stating its reasons therefor that the witness has intentionally given false evidence or has intentionally fabricated false evidence for the purpose of being used in the judicial proceeding and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it was expedient that the witness should be prosecuted. All that has been done by the Magistrate in his
committtal order. Thus evidently he was proceeding under Section 479-A Cri. P.C. and not under Section 476 Or. P.C.
6. I shall first deal with this matter as if the Magistrate as pointed out by me was proceeding under Section 479-A Cri. P.C. It is clear that the Magistrate had no jurisdiction to proceed under Section 479-A, Cri, P.C. That can be done only by giving his reasons in his judgment or final order disposing of the proceeding before him. But in this case the Magistrate was not disposing of the proceeding 'before him and was not passing any judgment or final order.
He was holding an enquiry under Section 208 Cri. P.C. to see if a prima facie case has been made out either to frame charges against the accused under Section 210 Cri. P.C. or to commit him for trial to the Court of Session under Section 213 Cri. P.C. He was not finally disposing of the case but only holding a preliminary enquiry to satisfy himself whether there were sufficient grounds for committing the accused for trial. In such a proceeding, the order of the Magistrate cannot be called a judgment or a final order.
At that stage, the Magistrate had no right to characterise the evidence given by the witnesses as true or false, unless, of course, he was discharging the accused. If he was committing the accused for trial, the question whether tile witnesses for the prosecution or for the defence were speaking the truth or uttering falsehood is a matter to be decided by the Court which eventually tried the accused. It will be most mischievous for a Magistrate to decide in, advance before such trial takes place whether the evidence particularly given by a defence witness was true or false. It will amount to prejudging the case of the accused even before the actual trial.
In this case as the accused have been committed for trial to the Sessions Md. Ismail will most probably be figuring as a defence witness in the Sessions Court and it will be for the Sessions Court to say whether his evidence was true or false. The learned Magistrate by making such observations and by taking action against the witness at that stage will be even guilty of prejudicing the defence of the accused in the trial before the Sessions as this witness D. W. 6 will in view of the strong observations of and the action taken by the Magistrate be afraid of giving evidence in the Sessions Court.
I must condemn the conduct of this Magistrate in having made such observations in his committal order. It is clear that the Magistrate had no jurisdiction if he was proceeding under Section 479-A Cri. P.C. to lay the complaint against the witness. It follows that his order directing the filing of a complaint as well as the subsequent criminal proceedings taken against the petitioner under C. R. 447 of 1959 have to be quashed.
7. If the Magistrate has purported to proceed under Section 476 Cri. P.C. he has to record a finding that it is expedient in the interests of justice that an enquiry into the offence referred to in Section 195, Sub-section (1), Clause (b) should be made. Even then, as I have already pointed out, the Magistrate will be guilty of prejudging the defence, while the accused have yet to take their trial before the Court of Session in which Md, Ismail would be figuring as a witness and it will be for the Court of Session to decide whether he was speaking the truth or not.
8. Section 476 refers to the holding of such preliminary enquiry as the Court diinks necessary. Of course, it is a matter of discretion for the Court. But such discretion must be judicially exercised. Particularly in a case where the Court proceeds suo motu as in this case, it is necessary that there must be a preliminary enquiry and the accused be given an opportunity to point out to the Magistrate why action should not be taken against him.
In this particular case if such an enquiry had been held and an opportunity given to the petitioner die Magistrate would not have committed this error and it would have been pointed out to the Magistrate that at that stage he had no jurisdiction to give a final finding that the witness had fabricated false evidence or had given false evidence. It would also have been pointed out to the Magistrate that any such proceeding at that stage would prejudice the defence in the main case seriously. I have no doubt that it was highly wrong on the part of the Magistrate even if he was proceeding tinder Section 476 to have done so when witnesses were being examined before him in the committal proceedings.
9. I am deliberately desisting from exposing any opinion as to whether Md. Ismail has fabricated false evidence or has given false evidence as it is a matter to be decided if the witness is examined by the defence in the Sessions Court, But the observations made by the Magistrate against the witness in the committal order cannot be allowed to stand as it will seriously prejudice the defence of the accused in the Sessions trial. I therefore direct that the observations in the committal order dated 30-9-1959 made by the Magistrate against D. W. 6 Md. Ismail should be struck off under Section 561A Cri. P.C. to secure the ends of justice.
10. The reference is therefore accepted. The order of the Magistrate Sri P. K. Roy directing the filing of a complaint against the petitioner is set aside and the proceedings in C. R. case No. 447 of 1959 are quashed. It is further ordered that the observations made by the Magistrate against the petitioner in the committal order dated 30-9-1959 he expunged from the record.
11. In the light of what I have stated above, ft is necessary to see what action has been taken by this Magistrate Sri P. K. Roy against D. W. 7 Sri Lal Mohan Sen against whom also he has directed action to be taken for fabricating false evidence. The Registrar will call for the records relating to Sri Lal Mohan Sen, D. W. 7 and if any complaint has been filed against him or proceedings are pending against him on the complaint, the said records also will be called for immediately and further action in the proceedings against him, if any, will be stayed until this Court examines those papers and passes orders.
12. A copy of this order will be sent to the Munsiff-Magistrate Sri P.K. Roy wherever he is.