1. This application arises in the following circumstances:--
The applicants are, or were, certain tenants of the opponent Mahomad Ismail Mahomad Abdulla, who is described before us as enjoying the title of Khan Saheb and the dignity of an Honorary Magistrate. In a prosecution of the applicants before the Sessions Court, the opponent in the course of his deposition made upon solemn affirmation the following statements : Answering the question whether he had been instrumental in financing the prosecution through his clerk Nara-yan, he said : ' I did not send him (Narayan) to instruct the pleaders from the commencement. I am not concerned with the result of the case. Hasu Earn Patil pays Mr. Rege pleader and also the other complainant Bala Ramji, etc. The Karkun did not come here to instruct Mr. Eege. I. did not retain any pleader for this case before the First Class Magistrate. I do not know that they (i.e. the pleaders) were paid each Rs. 50 per day. I have not spent a single pie for this case. I do not know whether my Karkun went to watch the case before the First Class Magistrate. I do not know whether he went to give instructions to Mr. Jamshedji and Mr. Kaka Patil at Alibag.' After those statements were sworn to and while the opponent's deposition was still unfinished, the Court rose for lunch and on its reassembling the opponent's clerk Narayan was forthwith put into the box instead of the opponent. From Narayau's evidence it was manifest that the foregoing statements of the Khan Saheb and the Honorary Magistrate were false in fact and false to his knowledge. This, therefore, was put to him when he was rasuminoned to the witness-box and being thus confronted with the evidence of Narayan he said: 'I admit what I stated this morning about these facts is not true. It is also not true that I did not know, as 1 stated above, about Narayan's coming here and engaging Mr. Rege etc.' The learned Assistant Sessions Judge, Mr. J.A. Saldanha, being satisfied that there was prima facie ground for prosecuting the opponent for perjury in regard to his first statement, granted sanction for that prosecution. The sanction, however, has been revoked by the Sessions Judge, Mr. C.N. Mehta, who was of opinion that it was inexpedient that the prosecution should proceed.
2. The point is thus put by Mr. Saldanha and put, as it-seems to me, with perfect fairness. ' The opponent Khan Saheb had to confess that he had deputed his Karkun Narayan Waman Deshpande to engage pleaders both at Alibag and here and supplied him with funds to pay those pleaders. But this confession was extracted from him by counsel for the accused after he had once foresworn all connection or concern in the prosecution and trial, when he was brought face to face with the testimony of his Karkun to the contrary.' That is the description by the learned Judge who gave the sanction.
3. Now this is the description by the learned Judge, who revoked the sanction, Mr. C.N. Mehta: ' It seems to me', he says, 'that there are prima facie grounds for believing that the applicant deliberately and intentionally made the statement referred to in paragraph 6 of the lower Court's judgment and that according to his own admission in the course of the same deposition later on, that statement is untrue. It was not a statement inadvertently or hastily made in the course of his cross-examination; but questions after questions were put to him on the same point and there can be no doubt that he deliberately reuiled to them and that he was at that time determined not to admit that he was financing the litigation although in fact he had been doing so.'
4. This is the state or the facts and these facts have not been challenged in the argument before us. They stand indeed upon the express admission of the opponent himself and upon his own admission I have, on the record now before us, no doubt but that the original denial of financing this litigation was false and intentionally false and that the retractation of that denial was prompted by the circumstance that it became impossible further to persist in it after its falsehood had been disclosed by the opponent's own clerk.
5. In this state of facts we have had from Mr. Strangman a particularly forceful and persuasive argument with which I am myself much in sympathy. But the question before us is not one of sympathy, but of the exercise of our judicial discretion in accordance with the established practice of this Court, unless some overwhelming reason should exist for departing from that practice. I am not aware of any such overwhelming reason and we must, therefore, I think, adhere to the practice. That practice upon this point was laid down so long ago as 1890 by Mr. Justice Birdwood and Mr. Justice Jardine in Queen Empress v. Gopal (1890) Cr. C 502 where the learned Judges observed that a deposition must be read as a whole and a witness must always be given an opportunity of correcting any answer given by him, The present case does not, I think, in law substantially differ from a case of more frequent occurrence where a witness, having made a false statement, is cautioned by the trying Judge and is informed of various circumstances which seem to establish the falsehood of that statement; and the witness after such caution acknowledges that his earlier statement was false and corrects it. In such circumstances, speaking within my own experience, I have not known any case where any Judge has thought it desirable to subject such a witness to a prosecution for perjury. And that a Judge should refrain from such directions seems to me not unreasonable when it is remembered that the essence of the offence of perjury consists, as I take it, in an attempt to mislead and deceive the Court. In such a case, as we have here, it cannot be truly said that the opponent left the Court under the lie with which he began by attempting to deceive it;. On the contrary, before his deposition was finished, he withdrew the lie and left the Court under the impression of the truth. it may well be and in this case I think is, the fact that his motive in thus withdrawing his lie was a motive which dots him no credit. That, however, is not, it seems to me, a decisive-consideration upon this question of discretion.
6. On the whole, therefore, though the case is a bad one of its kind, I am not prepared to say that we should be justified in altering the practice which has apparently prevailed in this Court since 1890 and in reversing, the lower Court's order made in the exercise of its discretion.
7. I would, therefore, discharge the rule.
8. But at the same time, I think that it is expedient to afford the Government an opportunity of reading this record and of considering whether a person who on his own showing has deliberately attempted to mislead a Court of Justice in an important case is fit to continue the exercise of the powers of an Honorary Magistrate. I think, therefore, that copies of Mr. Saldanha's judgment, of Mr. Mehta's judgment and of the judgment of this Court should be forwarded to Government for their consideration.
9. I am of the same opinion.