John Beaumont, Kt., C.J.
1. This is an appeal against an order of the Additional Sessions Judge of Belgaum directing under Section 476 of the Criminal Procedure Code, 1898, the prosecution of the applicants for an offence of giving false evidence punishable under Section 193 of the Indian Penal Code.
2. The case, to my mind, raises an important question as to the principles on which the Court should sanction a prosecution in cases of this kind. Under Section 476 of the Criminal Procedure Code the Court must be satisfied that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, which includes offences under Section 193 of the Indian Penal Code; so that we have to be satisfied that it is expedient in the interests of justice that there should be a prosecution.
3. The facts are that the applicants made a statement before the Magistrate under Section 164 of the Criminal Procedure Code, alleging, in some detail, that they had witnessed the murder of a man named Rayappa. The alleged murderer was subsequently prosecuted, but at the inquiry before the committing Magistrate the applicants resiled from their statements, and said that in point of fact they had seen nothing, and that the statements which they had made under Section 164 were untrue. In the result the prosecution was abandoned in the Sessions Court.
4. Section 164 of the Criminal Procedure Code provides, so far as material, that any Magistrate as therein defined may record any statement or confession made to him in the course of an investigation under the Chapter or at any time afterwards before the commencement of the inquiry or trial, and it is provided that he may record such statements on oath, and in practice such statements are recorded on oath. The section is extensively used for recording confessions, but it is also in some cases used by the police to pin down a witness to the statement which he has made in the course of the inquiry, the object being to prevent a witness from resiling from his statement. Sometimes, for example, where the witness is a near relative of the accused, there may be some advantage in adopting that course, but, it has to be observed that, although it may be desirable to prevent a witness from resiling from a statement which is true, it is very undesirable to prevent him from resiling from a statement which is untrue.
4. In the present case it is no doubt true to say that either the statement made before the Magistrate under Section 164, or the statement made in the committing Magistrate's Court, was false, the two statements being contradictory. A full bench of this Court in Emperor v. Purshottam Ishwar (1920) I.L.R. 45 Bom. 834 F.B., held that in such a case the statement under Section 164 and the subsequent evidence in Court constituted a series of acts within the meaning of Section 236 of the Criminal Procedure Code, and that consequently it was legitimate to frame a charge in the alternative, a charge of perjury committed either before the Magistrate taking a statement under Section 164 or subsequently in Court, and to record an alternative conviction. The Court in that case consisted of five Judges, one of whom, Mr. Justice Shah, dissented from that proposition. The authority of the case may be open to question, since there had been a previous decision of a full bench of this Court of four Judges in Queen-Empress v. Mugappd bin Ningapa (1893) I.L.R. 18 Bom. 377, F.B., which had reached a different conclusion. Apparently it was considered that five Judges, by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of co-ordinate jurisdiction. There seems to be very little authority on the powers and constitution of a full bench. There can be no doubt that a full bench can overrule a division bench, and that a full bench must consist of three or more Judges; but it would seem anomalous to hold that a later full bench can overrule an earlier full bench, merely because the later bench consists of more Judges than the earlier. If that were the rule, it would mean that a bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a bench of six Judges, though all the Judges were of co-ordinate jurisdiction. In Enatullah v. Kowsher Ali (1926) I.L.R. 54 Cal. 266, S.B. Sanderson C.J., stating the practice in Calcutta, seems to have been of opinion that a decision of a full bench could only be reversed by the Privy Council or by a bench specially constituted by the Chief Justice. Even if this be the true rule, there is nothing to show that the Chief Justice acted upon it in Emperor v. Purshottam Ishwar (supra). I do not recollect myself ever to have constituted a special bench to consider the ruling of a full Bench, though I have constituted many full benches to consider rulings of division benches. However, I need not pursue this subject further, since, for the purpose of the present appeal, I am prepared to assume that an alternative charge of perjury lies, and that it was a charge of that nature which the learned Additional Sessions Judge contemplated. The question then is whether it is expedient in the interests of justice that such a charge should be made.
5. Now, to my mind, in determining that question it is absolutely essential that the Court should make up its mind whether it was the statement before the Magistrate under Section 164, or the statement subsequently made in Court, which was false. J. gather from the judgment of the learned Additional Sessions Judge that he is disposed to think that it was the statement made under Section 164 which was false; but there is really no evidence to enable us to determine which of the two statements was false. If the statement in Court was false, then I agree that in the interests of justice there should be a prosecution; but supposing it was the statement under Section 164 which was false, what then? No doubt, a man making a statement on oath before a Magistrate under Section 164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently he goes into the witness-box. To prosecute a man who has resiled from a false statement made under Section 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under Section 164 than that he should be induced to believe that it is to his interest, however false the statement may have been, to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent persons is too great to be risked. The learned Government Header contends that if a prosecution is not sanctioned in a case of this kind, the practice of taking statements under Section 164 may as well be abandoned. If that result follows, I am by no means satisfied that it will be a bad thing.
6. I observe that the view I take was taken by Sir Lawrence Jenkins, when he was Chief Justice of Calcutta, in Emperor v. Tripura Shanhar Sarkar (1910) I.L.R. 37 Cal. 618, S.B.. He says (p. 622):
This, then, is how matters stand. The Court is convinced that of the contradictory statements now under consideration those made in this Court were true, but those before the Magistrate were false; and on a careful consideration of the events leading up to the examination before the committing Magistrate, and of the conditions under which that examination was conducted, we are clearly of opinion that the sanction sought should not be given. Had Tripura repeated here the false story he told before the Magistrate, no such application as the present would have been made: is it to be granted because he had told the truth here? Certainly not.
7. In my opinion, that reasoning applies, not only when the Court is satisfied that it is the earlier statement, which is false, but also when the Court is not satisfied to the contrary. As I am not satisfied in this case that it was the statement made before the committing Magistrate which was false, I am of opinion that it is not expedient in the interests of justice that there should be a prosecution.
8. The appeal, therefore, will be allowed.