1. This is an appeal directed by the Government of Bombay under Section 417 of the Code of Criminal Procedures from an appellate order of acquittal passed by the Sessions Judge of Thana, reversing the convictions and sentences passed by the Assistant Sessions Judge for offences punishable under Section 182, and Section 182 with Section 109 of the Indian Penal Code. The Sessions Judge did not enter into the merits; but, assuming the facts to be as found by the Assistant Sessions Judge, held, on the authority of In the matter of the petition of Golam Ahmed Kazi I.L.R. Cal. 314 and The Queen v. Periannan I.L.R. Mad. 241 that they did not constitute any offence.
2. The Public Prosecutor has argued for the Crown that Section 182 has been wrongly construed, and that this section applies to the facts, and that they also constitute the offence of cheating by personation as defined in Section 416 of the Indian Penal Code. In Golam Ahmed Kazi's case I.L.R. Cal. At pp. 315 the learned Judges placed a limitation on the latter part of Section 182. They said: 'As it seems to us, that section must be read as a whole, and, taken as a whole, we think it applies to those cases in which the police are induced, upon the information supplied to them, to do or omit to do something which might affect some third person, and which they would not have done if they had known the true state of things.' In the case of The Queen v. Periannan I.L.R. Mad. 241 an interpretation was placed on the words 'to use his lawful power,' which occur in the first part of Section 182; the question, whether the act done came within the language of the second part of the section, does not appear to have been raised or considered. No other reported cases in which Section 182 has been interpreted have been cited in the arguments. That of Queen-Empress v. Madho I.L.R. All. 498 was decided in the absence of fraudulent intention, and is hardly in point.
3. The Court has to determine whether the second part of Section 182 can be read without importing into it the words 'to the injury or annoyance of any person.' In other words, can we construe the section of making the giving of false information to a public servant penal, when either of the two consequences is intended to be caused or is known to be likely to be caused by the false information, the first being the causing the 'public servant to use the lawful power of such public servant to the injury or annoyance of any person,' the second being the causing the 'public servant to do or omit, anything which such public servant ought not to do or omit, if the true state of facts respecting which such information is given were known to him?'
4. We are of opinion that this is the proper construction of the section, but as this opinion appears, at first sight, to differ from that expressed by the learned Judges who decided Golam Ahmed Kazi's case I.L.R. Cal. 314 and as the interpretation of a general penal law is a matter of a general importance, we think we are bound to give our reasons with some fullness.
5. It was said in The King v. The Inhabitants of Hodnett 1 T.R. 96. 101. 'It is not true that the Courts, in the exposition of penal statutes, are to narrow the construction. We are to look to the words in the first instance, and where they are plain, we are to decide on them. If they be doubtful, we are then to have recourse to the subject-matter; but at all events, it is only a secondary rule.' On examining the words of Section 182 we find no difficulty in reading them as stating the two consequences as quite distinct from each other, nor is it suggested in Golam Ahmed Kazi's case I.L.R. Cal. 314 that they do not bear this apparent meaning. Then, is there anything in the sense, or the objects, or the mischief of the enactment which requires that a limitation should be placed on the verbal meaning? The learned Judges in Golam Ahmed Kazi's case I.L.R. Cal. 314 recorded their opinion that the conduct of the accused amounted to no more than a hoax; and where this view of the facts applies, it is less difficult to hold that there has been no offence. But where there has been something more than a hoax, is the person who gives the false information to the public servant with; the intention of influencing his conduct to escape penal liability, unless the probable consequence is injury or annoyance to a third person? These words would doubtless cover an arrests caused for a search of a man's dwelling. But it is easy to imagine serious results and danger to the well-being of the public, or classes of the public, when a public servant is induced by false information to do or omit something which he ought not to do or omit, and we think the section we have to construe deals with that mischief. The words in the section 'such public servant ought not to do or omit' appear to us to resemble the words 'to use the lawful power of such public servant to the injury or annoyance of any person' only in so far as both sets of words refer to official conduct. But the latter phrase using the word 'ought,' which implies duty and excludes personal choice, covers duties imposed by more particular statutes, as well as duties arising otherwise from the status or office of the public servant. The police, for example, are bound by express statute to vigilance in the prevention and detection of crime and the apprehension of offenders; the customs officers and abkari officers are in much the same position. But other public servants in the absence of statutes are required by the unwritten law to exercise vigilance and care, or like the ministers of the Crown to give good advice, or like the judges to hearken in their courts to the suitors and their counsel, or like the magistrates to suppress riots, or to comment on the misconduct of the police in cases before them--Rendition v. Maltby 2 M & R. 438 : S.C. 1 Car & M. 402. The office, the honour, and the duty go together and all relate to the public welfare. Now as the officer is bound to act in the discharge of his office in the proper circumstances, it may often be an interference with his duty, and thus dangerous to the public welfare, if through false information he is prevented from acting, or induced to act wrongly. To withdraw a member of the Government from his duties in the council, or judge from his court, or a military officer from his command, by giving him false information may thus be prejudicial to the interest of the State, although no particular person can be pointed out as injured or annoyed at the time. Although, as Mr. Mayne remarks in commenting on forgery under Section 463 of the Penal Code, 'writing a spurious invitation to dinner might be very culpable as a hoax, but would not be a fraud,' it may well be that the Legislature took a mere serious view of deceitful interferences with what public servants ought to do; and as a general rule, there are many acts of deceit and folly which are criminal, because of their dangerous results and by no means to be excused as hoaxes.
6. The second part of Section 182, it may be remarked, did not appear in the first draft of the Penal Code prepared by Lord Macaulay's Commission; in the second report dated 23rd July 1846, Section 102, reference is made to a proposal in the Digest of the English Law to punish under the head of 'deceits on public officers' those who wilfully give public servants false information.
7. The Courts no doubt differ in their estimates of particular acts, and the decisions are not easily reconciled. Compare 6 Madras High Court Rulings page 12 with The Queen v. Luthi Bewa 2 B. L.R.C. 25 and Reg. v. Bhavanishankar 11 Bom. H.C. R. 3 . In Express v. Dwarka Prasad I.L.R. All. 97 . Mr. Justice Tyrell held that a person who tried to obtain his recruitment in the police of a district by giving certain information about himself to the District Superintendent of Police, which he knew to be false, had not committed an offence punishable under Section 177 or 182, or Section 415 of the Indian Penal Code. See also, as to the meaning of 'fraudulently,' The Queen v. Lal Mahomed 22 Cal. W.R. Cr. Rul. 82. But in Empress v. Dhunum Kazee I.R. 9 Cal.. 60 Mr. Justice Norris quotes Maule J.'s dictum in Reg. v. Nash 2 Denison's C.C. at p. 503 : 21 L.J.N.S. MaG. Cas. 147 that 'it is not necessary that any person should be in a situation to be defrauded.'
8. In the present case the Assistant Judge found that under some rule of Government only persons who have passed an examination, called the Sixth Vernacular Standard, are to be employed in the Revenue Department; that the accused Ganesh Khanderao falsely informed the Assistant Collector that he had passed this examination, intending thereby to get the Assistant Collector to give him an appointment in the Revenue Department, which the Assistant Collector ought not to have done if he had known the true facts; and that Ganesh Daulat had abetted Ganesh Khanderao by supplying him with a certificate of having passed the examination, whereas it was Ganesh Daulat who passed it, having personated Ganesh Khanderao at the examination. The Assistant Sessions Judge held that those facts brought the case within Section 182 of the Indian Penal Code. He applied the same reasoning which has led us to our construction of that section. He observes: 'There are many acts of public servants, as in the present case, where there may be no specific injury to any specific person, and yet the public servant ought not to do the act.' The remaining question is, whether the giving the Assistant Collector false information in order to procure an appointment in the public service, which it would have been wrong of the Assistant Collector to bestow upon the applicant if he had known the real facts, comes within the words and meaning of the latter part of Section 182. We think it does. In discriminating between hoax and mere deceit on the one side, and criminal offences on the other, the Courts ought to have regard to the general policy of the law. It consists with public policy that the State should be well served in all departments; it is the right and duty of the Government to secure fit men and to take precautions to prevent the offices being filled by the unfit.
9. We are, therefore, of opinion that as the false information comes within the words, so it does within the scope and meaning; and that it is a fit subject of criminal punishment, especially if it was given, not as a mere joke, but with a purpose of obtaining the place. We are fortified in this opinion by the view taken of the criminal character of a similar act by West and Nanabhai, J.J., in the unreported case of Queen-Empress v. Vithal Narayan Joshi See post p. 515, foot-note. In that case the prisoner, in order to induce a Collector to give him an appointment, made use of a certificate in which his age had been recorded as twenty-three years, but which had been altered so as to state it as only twenty years. The learned Judges said: 'It was argued by Mr. Athlaye, for the accused, that there was no dishonesty within the meaning of Section 24 of the Indian Penal Code, inasmuch as the accused, if he had got the employment at all, would have got only his wages for work done. If, however, the alteration was made fraudulently, that suffices for the purposes of Section 464, as shown by illustration (k), and that illustration shows that the mere fabrication of a false certificate of character raises the presumption of fraud. It was held by Le Blane, J., so long as a century ago, that by fraud is meant an intention to deceive; whether it be from any expectation of advantage to the party himself or from the ill-will towards the other is immaterial--Haycraft v. Creasy 2 East. 92 108 .
With regard to the operation of Section 461, illustration (k) to Section 464 is equally applicable to the one section as the other. To induce the Collector to enter into the contract to employ this man as a karkun under the belief induced by the forged certificate that he was not more than twenty-five years of age brings the case under Section 471. This case falls most strictly within the definition of using a forged document.
10. We may also give as a further reason for treating acts of this sort as such as the Legislature may have intended to discourage by penal enactment, that they approach the character of misdemeanour at English Law. It seems to be an established rule that whatever openly outrage decency and is injurious to public morals is a misdemeanour at Common Law. (See 4 Bl. Com., 65 and 1 Hawkins' Pleas of the Crown, c. 5, Section 4.) To attempt to procure a public office by bribery is a misdemeanour--Rex v. Vaughan 4 Bur. 2494. One reason is that the offices thus get into the hands of unfit persons, as stated by Hawkins in his pleas of the Crown. The same may happen where the office is gained by false representations. The injury is of a public nature--The King v. Richards 8 T.R. 634. In his General View of the Criminal Law, p. 59, Sir Fitzjames Stephen says: 'There is a close analogy between torts and misdemeanours: each is a q violation of a duty imposed by statute or common law, and each class is made up of members which are shown to belong to it, not by reference to any definite catalogue--like those which might be drawn up of felonies--but by reference to broad general principles.' At page 58 he says: 'Indeed, a prosecution for a misdemeanour is hardly distinguishable from an action for tort, in which the Queen is plaintiff, and which sounds in punishment instead of damages. This is true as far as the procedure is concerned in respect of felonies also, and there is little, and indeed, no reasonable distinction between statutory misdemeanours (such as obtaining goods by false pretences) and felonies; but the question, what is a misdemeanour at common law hardly admits of any better answer than that it is a tort prosecuted by the Crown.'
11. It is in our opinion unnecessary at the present stage to deal with the question whether cheating or any other offences was committed. For these reasons we reverse the order of acquittal passed in appeal by the learned Sessions Judge. As he decided the appeal only on the question of law with which we have dealt, and without determining the merits, or the question as to local jurisdiction which has been raised here, but which depends partly on the facts, we now, under Section 423, Criminal Procedure Code, direct that the appeal of the prisoner be retried by the Sessions Judge. For such an order we find a precedent in The Government of Bengal v. Gokool Chunder Chowdhry 24 Cal. W.R. Cr. Rul. 41 . That case was tried under the Code of 1872, but we are of opinion that the words relating to trial in the present Code, in Section 423, are used in a sense wide enough to include the trial of appeals as in Sections 342, 344, 352 and some sections of chapter 25.