1. The questions referred for decision to the Full Bench are:-
1. Whether a statement recorded by any Magistrate in the course of a police investigation under Section 164., Criminal Procedure Code, is evidence in a stage of a judicial proceeding within the meaning of Section 193, Indian Penal Code, Explanation 2 ?
2. Whether such a statement can be said to be evidence in a stage of a judicial proceeding if the Magistrate who records it has no jurisdiction to inquire into or try the case ?
3. Whether, if such a statement is not evidence in a stage of a judicial proceeding, but comes within the meaning of the words 1 evidence in any other case ', in Section 193, Indian Penal Code, it can be linked with a statement which is evidence in a stage of the judicial proceeding following on the investigation so that the two can be said to be a series of acts on which an alternative charge can be framed under Section 236, Criminal Procedure Code, of intentionally giving false evidence ?
4. Whether the Magistrate who had authority to carry on the preliminary inquiry but for the Notification under the Defence of India Act had any jurisdiction to inquire into or try the case after the Notification ?
5. Whether if the Full Bench are of opinion that question 1 should be answered in the affirmative, it makes any difference that the original case was decided to be tried by a Tribunal under the Defence of India Act instead of being tried in the ordinary course, so that the investigation under Chapter XIV of the Criminal Procedure Code cannot be considered a stage of the proceedings before the Tribunal.
2. A Police investigation under Chapter XIV of the Criminal Procedure Code is not itself a judicial proceeding within the meaning of that term as used in the Indian Penal Code Under that Code a judicial proceeding is a proceeding before a Judge as defined in Section 19. Nor does it become a stage of a judicial proceeding by virtue of the Explanation to Section 193. The words of the Explanation are: ' An investigation directed by law preliminary to a proceeding before a Court of Justice.' A magisterial inquiry preparatory to commitment is an inquiry directed by law preparatory to the trial. This direction is expressed in Section 206 of the Code of Criminal Procedure. The effect of the explanation is therefore to make a magisterial inquiry preparatory to commitment, a stage of a judicial proceeding. But there is no direction of law that the Police investigation should precede a trial. It very often does not, e g., when the Magistrate takes cognizance on a complaint or ' suo motu'. Nor is it enough that the Police investigation does as a matter of fact often precede a trial. The section requires something more. There must be an express direction by law just as under Explanation 3 there must be an express direction by a Court of Justice.
3. To hold that a Police investigation is a stage of a judicial proceeding would lead to anomaly. A Magistrate trying a warrant case is a Court of Justice (Section 20, Indian Penal Code): but a Magistrate holding an inquiry preparatory to commitment is not (Section 19, illustration (d)). A Police investigation preparatory to a trial by a Magistrate would therefore be a stage of a judicial inquiry, while a police investigation preparatory to a magisterial inquiry for commitment would not.
4. No doubt a Magistrate examining a witness under Section 164 would do so on oath. But the definition of judicial proceeding in Section 4(m) of the Criminal Procedure Code is limited to that Code and does not apply to that phrase as used in the Indian Penal Code.
5. A statement recorded by a Magistrate of a witness in the course of a Police investigation under Chapter XIV is, I think, not evidence in a stage of a judicial proceeding and I differ on this point from Queen-Empress v. Parshram Raysing I.L.R. (1883) Bom. 216; Queen-Empress v. Alagu Kone I.L.R. (1892) Mad. 421 and Suppa Tevan v. Emperor I.L.R. (1905) Mad. 89.
6. It is quite immaterial whether the Magistrate had or had not jurisdiction to inquire into or try the case. Under the Code of 1872, there were cases where the fact that the Magistrate had jurisdiction was regarded as indicating that the examination was not under Section 164, as it professed to be, but should be considered to have been taken in the course of the inquiry or trial: Empress v. Anuntram Singh I.L.R. (1880) CaL. 954, F.B; Empress of India v. Yakub Khan I.L.R. (1883) All. 253. Subsequent changes in the Code of 1882 have made these cases obsolete. But they have left their mark on the case of Queen-Empress v. Bharma I.L.R. (1888) Bom. 702. There, in a case of murder, a statement was made under Section 164 before a Third Class Magistrate and was afterwards contradicted before the Committing Magistrate. The Court held that the statement before a Third Class Magistrate was not evidence in a judicial proceeding, that Magistrate not having authority to carry on the preliminary inquiry. The reservation as to the Magistrate's jurisdiction was, we think, made in order to leave open the question whether if the Magistrate had jurisdiction, the statement though professing to be made under Section 164 should not be considered part of the commitment inquiry. In Queen-Empress v. Bharma the Full Bench merely answered the question propounded and did not consider whether the accused could not have been convicted of a charge in the alternative for false evidence under Section 193, part 1, before the Committing Magistrate or of false evidence under Section 193, part 2, before the Third Class Magistrate. But in the case of Queen-Empress v. Ismal valad Fataru I.L.R. (1886) Bom. 659, decided three months later, though reported in I.L. Bom. 659, a conviction was confirmed in the alternative for giving false evidence before a Magistrate or false evidence before a Police Officer (under Section 161 of the Criminal Procedure Code of 1882).
7. In the case of Queen-Empress v. Kabhai (1887) Unrep. Cr. C. 336 it was held in a similar case that a charge for one offence in Form xxviii (ii)(4) of Schedule V of the Criminal Procedure Code could not be framed, but that separate heads of charge in the alternative should be framed under Section 236. This was followed by the case of Queen-Empress v. Annaya valad Govinda (1890) Unrep. Cr.C. 518 where the statement made to the Police Officer was in answer to questions which tended to expose the accused to a criminal prosecution. The Court held that this was not false evidence, as the accused Pratt J- was not bound to answer truly. This was sufficient to dispose of the case, but the judgment professing to follow Queen-Empress v. Kobhai added that even if the statement to the Police was false evidence, the case was not one in which alternative charges could be framed. This was not only an obiter dictum but an incorrect statement of the decision in Queen-Empress v. Kabhai. Nevertheless, the Full Bench in Queen-Empress v. Mugapa bin Ningapa I.L.R. (1893) Bom 377 approved the case of Queen-Empress v. Kabhai, that a charge in the Criminal Procedure Code form was not possible, and at the same time followed Queen-Empress v. Annaya in holding that alternative charges could not be framed. The judgment ackowledged the discrepancy between Queen-Empress v. Annaya and Queen-Empress v. Kabhai, but gave no reason for following the obiter dictum in the former rather than, the decision in the latter-and it does not even refer to the case of Queen-Empress v. Ismal valad Fataru I.L.R. (1886) Bom. 659.
8. The confusion seems to have arisen out of the apparent inconsistency between Section 236 and the Form of Charge Schedule V, Form xxviii (ii)(4). The Form seta forth two statements each in a judicial proceeding, 'one of which statements you either knew or believed to be false, or did not believe to be true, and thereby committed an offence punishable under Section 19 j of the Indian Penal Code'. It appears to be a Form of Charge with one head for a single offence and thereby invites the criticism of Mr. Mayne quoted in the referring judgment. But the Form comes under part II of Form xxviii ' Charges with two or more heads'. The charge is really a charge in the alternative either of an offence under Section 193 on the first statement or of an offence under Section 193 on the second statement. But because the two offences happen to be under the same part of the same section, the Form uses the words ' an offence' under Section 193. It is this somewhat inaccurate wording that has led to the erroneous opinion that alternative charges could not be framed where the contradictory statements fell under different parts of Section 193.
9. But under Section 236 it is quite clear that a charge in the alternative may be framed for different offences. The prosecution cannot establish exclusively any one offence, but are able to prove an act or series of acts which exclude the innocence of the accused, and shew that he must have committed one of two or more Pratt of offences. The prosecution establish a corpus delicti on the facts which can be proved and the facts which cannot be proved are subsidiary facts important only to this extent that they decide under which penal provision the delictum falls, or on what occasion the offence was committed. In illustration (a) the recent possession of stolen property is the corpus delicti. Whether the accused stole it himself or subsequently received it from the thief are subsidiary facts which only affect the question whither his delictum falls under Section 379 or Section 411 of the Indian Penal Code. In illustration (b) the two contradictory statements constitute the corpus delicti and what cannot be proved is the subsidiary fact on which occasion the false evidence was given. If the one statement was evidence in a judicial proceeding and the other, evidence in any other case, the alternative charges would be one under the 1st part and one under the 2nd part of Section 193. Judgment could be in the alternative under Section 367(3), Criminal Procedure Code and the punishment would be for the minor offence under Section 72, Indian Penal Code.
10. It is argued that false evidence in a Police investigation and false evidence in a judicial proceeding do not form a series of acts and cannot be linked together in alternative charges. If false evidence in a commitment inquiry and false evidence in a trial can be charged in the alternative I cannot understand how it can be argued that false evidence in a Police investigation stands on a different footing. It is said that the acts must form a series. True, but the only factor that makes them a series is that they each lead to an inference as to the guilt of the accused. There may be a number of acts apparently distinct and even different transactions but when they form a chain of circumstantial evidence pointing to the guilt of the accused they become a series. This circumstantial evidence may prove the accused's connection with a murder. These acts and the murder are the corpus delicti and the accused may be charged in the alternative with murder or abetment of murder. So with contradictory statements the connection is that taken together they lead to an inference of the accused's guilt.
11. I think that charges in the alternative can be framed for giving false evidence in a judicial proceeding or giving false evidence in any other case. I think the decision in Queen-Empress v. Mugapa bin Ningapa I.L.R. (1893) Bom. 377. is incorrect and the decisions in Queen-Empress v. Ismal valad Fataru I.L.R. (1886) Bom. 659 and Queen-Empress v. Khem I.L.R. (1899) All. 115 are correct.
12. The Defence of India Act provides for exclusive trial before the constituted Tribunal. It in no way affects the police investigation or the Magistrate's jurisdiction to take part in the investigation. Indeed Section 9 contemplates the fact that a statement may have been taken before the Magistrate. I would, therefore, answer the questions referred:-
(1) In the negative. (2) In the negative. (3) In the affirmative, and questions (4) and (5) do not arise.
Norman Macleod, Kt., C.J.
13. I agree that the answers to the questions referred to the Full Bench should be as given in the judgment of my brother Pratt. The third question is the most difficult one. Section 236 of the Criminal Procedure Code contemplates a case where an accused person has committed an act or a series of acts and it is uncertain on the facts proved which of two or more offences has been committed. A series of acts means two or more acts connected together by some common relation. Clearly a statement on oath before a Committing Magistrate and a statement on oath at the trial of the same accused on the same charge would constitute a series of acts. Accordingly under Section 236 a witness could be charged with having given false evidence either before the Committing Magistrate or at the trial. The doubt which arose owing to conflicting decisions was whether it was necessary to prove that one of the statements was false or whether the mere fact that the statements were contradictory was sufficient for a conviction of the offence of giving false evidence. This doubt was set at rest by the addition of illustration (6) to Section 236. It does not appear to have been noticed that Section 236 was originally framed to meet the case where it was doubtful whether offence A or offence B had been committed at the time when the charge had to be framed. Schedule V, form xxviii, provided for the framing of charges under two or more heads in accordance with the provisions of Section 236. But in the case of contradictory statements the doubt would be whether perjury had been committed on occasion A or occasion B, a very different matter. The form of charge in Schedule V, Form xxviii (ii)(4) is, therefore, strictly speaking, not a charge under two heads but a charge under one head for a single offence. The charge should be'' either that you committed an offence of giving false evidence on occasion A or on occasion B and because the statements are contradictory you must have committed that offence on one of the two occasions'. The illustration (b) made it clear that it was not necessary to prove on which of the two occasions false evidence had been given. But the illustration does not alter but merely explains the section, and it cannot be that only the contradictory statements mentioned therein can form the basis of an alternative charge.
14. The next point to be noticed is that Section 191 of the Indian Penal Code defines the offence of giving false evidence. Section 193 provides for the punishment. It does not say that there are two kinds of perjury, but that if perjury is committed in the stage of a judicial proceeding it may be punished more severely than if committed in any other case. The offence is perjury wherever it may be committed.
15. In illustration (b) to Section 236, Criminal Procedure Code, the common relation is the inquiry as to the committal of a particular offence by one or more individuals and that enables the statements made on two different occasions to be considered as a series of acts. But the Police investigation under Chapter XIV has also a common relation though it is a wider one, viz., the inquiry into the committal of a particular offence. Therefore a statement at the Police investigation under Section 164 and a statement after judicial proceedings have commenced form a series of acts within the meaning of Section 236. If, on the other hand, the common relation can only be the inquiry as to whether one or more particular individuals committed a particular offence, then they cannot form a series of acts. But there is no reason why the wider relation, if it exists, should not be taken into account. To hold otherwise would have this disastrous effect, that witnesses might make the most incriminating statements under Section 164 resulting in persons being charged under the Indian Penal Code, with only the bare chance of such witnesses being held guilty of perjury, if they resiled from their statements at the trial. For nothing is more difficult to prove than the fact that a witness has made a statement which ho knew or believed to be false or did not believe to be true. It is only when he makes contradictory statements that a real chance of conviction arises. I think unnecessary confusion has been caused by the phraseology of Section 191 of the Indian Penal Code. The act which constitutes the offence is the making of a false statement on oath on an occasion when by the law the person statement is bound to tell the truth. If that act had been called ' perjury', a term which every one understands, there would have been no difficulty. But to call it ' giving false evidence' involves the use of a word which itself has several meanings. Clearly ' evidence' is not used in its restricted meaning of evidence which is given or can be used in the course of judicial proceedings, but in its widest sense including any formal enunciation of facts made for the purpose of establishing a particular conclusion. Thus a creditor who makes a false affidavit of claim against an insolvent's estate or an insolvent who makes a false schedule, gives false evidence. And if either of them happened to make contradictory statements before the Court in the course of proceedings under the Presidency Towns Insolvency Act, I do not see why they should not be convicted under Section 193 without the prosecution having to prove which of the statements was false : the common relation being the particular insolvency in which the statements were made. In my opinion, therefore, there is a common relation between the statement made before the Magistrate under Section 164 and the statement before the Tribunal so that they form a series of acts. No doubt this opinion is in conflict with the Full Bench decision in Queen-Empress v. Mugapa bin Ningapa I.L.R. (1893) Bom. 377. But with all due respect to the learned Judges who tried that case the value of their considered opinion is deprived of much of its value by the fact that no reasons are given, and the contrary decision of this Court in Queen-Empress v. Ismail valad Fataru I.L.R. (1886) Bom. 659 was not even referred to. It may be that Section 236 was considered, but, in my opinion, the real crux is whether the inquiry into the committal of a particular offence without dealing with the question whether a particular individual has committed it can constitute the common relation between the two statements and it is impossible to say whether their Lordships considered the question before them from that point of view.
16. I agree with the judgment of my brother Pratt as regards questions Nos. 1, 2, 4 and 5 referred to the Full Bench. 'I would answer these questions in the same sense, generally for the reasons given in that judgment.
17. As regards question No. 3, I regret that I am unable to accept the conclusion reached in that judgment.
18. I would answer that question in the negative.
19. I have carefully considered the arguments and the statutory provisions bearing on this question, as also the various decisions cited before us. The provisions of Section 236, Criminal Procedure Code, are of an enabling and not obligatory nature, and it is open to the Courts, on a fair interpretation of the section, to hold that a statement, which is not evidence in a stage of a judicial proceeding ought not to be linked with a statement which is evidence in a judicial proceeding or at a stage of a judicial proceeding so as to form the basis of an alternative charge. In determining whether any two contradictory statements can form the basis of an alternative charge, the Court must have regard to the nature of the statements. A statement recorded by a Magistrate under Section 164, Criminal Procedure Code, in the course of an investigation under Chapter XIV before the inquiry or trial has commenced, generally speaking, cannot be evidence at the trial: while a statement recorded before a Committing Magistrate in the course of the inquiry can be evidence at the trial. The statement recorded under Section 164 is one which a witness is under no legal obligation to make, though if he elects to make it he is bound to state the truth, in view of the provisions of the Indian Oaths Act. The scheme of the Code of Criminal Procedure makes a clear distinction between the stage of Police investigation and that of judicial proceedings by way of inquiry or trial. Though the obligation to state the truth is common to statements recorded under Section 164, as well as those made at the inquiry or trial, there is, in my opinion, a clear distinction between these two classes of statements. There is also a difference in the circumstances and surroundings under which the two sets of statements are recorded. This may be taken to be recognised by the Legislature, as the statements recorded under Section 164 are not permitted to be treated as evidence at the trial under the Code of Criminal Procedure or the Indian Evidence Act.
20. I am not speaking here of the special provisions of Section 9 of the Defence of India Act (IV of 1915). It is not necessary to express any opinion for the purpose of the case as to whether that section applies to statements recorded under Section 164, Criminal Procedure Code. Assuming without admitting that such statements may be used as evidence under the special circumstances stated in that section, I do not think that that circumstance affects in any way the broad consideration that such statements cannot be treated as evidence at any inquiry or trial under the Code of Criminal Procedure.
21. In determining whether a statement recorded under Section 164 during the Police investigation and a statement recorded in the course of judicial proceedings at the trial can constitute a ' series of acts ' within the meaning of Section 236, there is no adequate reason to ignore the difference between the two acts. In spite of these considerations I might have taken the view, which is now contended for by the learned Advocate General, and which, it is said, is well within the scope of Section 236, had it not been for the fact that a Full Bench of this Court had by necessary implication put a restricted interpretation upon the terms of Section 236. That is the decision in Queen-Empress v. Mugapa bin Ningapa. The Full Bench consisting of Sargent, C.J. and Telang, Candy and Fulton JJ. held that a statement made to a Police Officer under Section 161 of the Code of 1682 and that made before the Committing Magistrate could not form the basis of an alternative charge, much lets of a conviction under Section 193, Indian Penal Code. In that case one of the statements was made at a stage of a judicial proceeding and the other was made at a stage of investigation under Chapter XIV of the Code then in force, the person making the statements being under an obligation to state the truth on both the occasions. It is true that no reasons are given for this decision, and no reference is made to the terms of Section 236, Criminal Procedure Code. I do not feel any doubt, however, that the conclusion was reached after a careful consideration of Section 236, which in terms was the same as the corresponding (section in the Code of 1898. Though this reported decision was before the Legislature when the Code of 1898 was enacted, I do not find any change in the section, which can be reasonably construed as overruling or rendering obsolete that decision. Illustration (6) to the section was added for the first time in the Code of 1898. 1 do not think, however, that the illustration touches the present point. As I read the illustration it only makes clear that two contradictory statements one made before the Committing Magistrate and the other at the trial can form the basis of au alternative charged of giving false evidence. It is not pressed before us, and I do not think that it could be reasonably suggested, that the word 'Magistrate' in the illustration can mean any Magistrate other than the Committing Magistrate. The illustration, so far as it goes, refers to the linking of two contradictory statements in the course of judicial proceedings for an alternative charge under the same part of Section 193, Indian Panal Code I do not think that the alteration in Section 161 of the Code of 1898 makes any difference so far as the application of the decision in Mugapa's case to the point, which we have to decide, is concerned.
22. I am humbly of opinion that the decision in Queen-Empress v. Mugappa, is correct, and may be followed be far as it applies to the present case. The effect of that decision, in my opinion, is that two contradictory statements one recorded before the commencement of the inquiry or trial and the other recorded at the inquiry or trial, cannot form the basis of an alternative charge, or conviction under Section 193, even though with reference to each statement the charge of giving false evidence at a stage of a judicial proceeding or merely of giving false evidence as the case may be, can be established if the prosecution be in a position to prove that the particular statement is false in fact. The statement recorded under Section 164 in the present case stands, for the purpose of the point under consideration, on the same footing as the statement made to the Police Officer under Section 161 under the Code of 1882 in Mugapa's ease.
23. I agree in the answers and reasoning given in the judgment of my brother Pratt.
24. As to the third question, it is true that illustration (b) to Section 236, and the form of charge in No. xxviii of Schedule V of the Criminal Procedure Code, presumably relate to contradictory statements in an inquiry before a Committing Magistrate and in a trial before a Sessions Court; but this by no means justifies the view that the Legislature intended to confine the power to frame an alternative charge under Section 236 to the case of contradictory statements falling under the first part of Section 193, Indian Penal Code or to a case where both statements fell under the same part of that section. The illustrations and forms are useful guides to the meaning of a section, but do not constitute the main enactment.
25. The expression 'series of acts' in Section 236 is very wide, and I do not think there is any legitimate ground for holding that the circumstances that a statement under Section 164 is voluntarily made and cannot itself be treated as evidence of the facts stated therein operate to prevent it being one of a 'series of acts', taken in conjunction with a connected statement made by the same person in a stage of a judicial proceeding'. The offence of 'giving false evidence', which is defined in Section 191, Indian Penal Code, applies to each of the two acts, if the statement is false, etc.; and the fact that under Section 193 one of the acts is liable to a greater penalty than the other is immaterial, except in regard to the question of punishment, which is dealt with in Section 72 Indian penal Code Sub-section (3) of Section 367, Criminal Procedure Code, makes it clear that there can be a conviction in the alternative in a case, where there is a doubt as to which of two parts of the same section applies, just as much as in a case where a doubt arises as to which of two sections applies. And this suffices to show that Section 826 is also intended to cover the former case. Nor does it seem necessary to state in the charge that one of the statements falls under a particular part of Section 193, Indian Penal Code, and the other statement under another part of that section. Thus Section 304, Indian Penal Code, is divided into two parts, drawing a distinction in the penalty to be inflicted for culpable homicide not amounting to murder, according to the convict's intention or knowledge; but the form of charge under Section 304 in No. xxviii (I)(6) and ii (2) of Schedule V of the Code does not require the particular part of Section 304, under which the accused in charged, to be stated. Under Section 221(2) it suffices to give the specific name of the offence, which in the case under consideration is that of ' giving false evidence', whether it be 'in a stage of a judicial proceeding ' or ' in any other case '.
26. I agree in the answers given in the judgment of Pratt J. to the questions referred to the Full Bench. As regards question No. 3, I fully concur in the reasons given in the judgment of the learned Chief Justice. The real question is, whether a statement made by a witness on oath under Section 164 of the Criminal Procedure Code during the course of investigation under Chapter XIV, and a statement made by the same witness at the trial constitute a series of acts' within the meaning of Section 236 of the Criminal Procedure Code, so that an alternative charge can under that section be framed in respect of such statements. I have no doubt that the do constitute a 'series of acts'. On information being given of an alleged offence, an investigation takes place under Chapter XIV of the Criminal Procedure Code; following on such investigation, the inquiry before the Committing Magistrate takes place and lastly comes the Sessions trial. There is a common relation between all acts done in the course of these three stages and statements made by the same witness at one or more of these stages constitute 'a series of acts'. It was contended that only offences of identical nature can be the subject of an alternative charge. There is no such restriction to be found in Section 236 of the Criminal Procedure Code. But assuming there is such a restriction, the offences which form in this case the subject of the alternative charge are, in my opinion, identical. The charge is that the accused in this case either gave false evidence when he made his statement under Section 164 or he gave false evidence in his statement before the Tribunal. Giving false evidence before the Tribunal being in a stage of a judicial proceeding falls within the first part of Section 193 of the Indian Penal Code; and giving false evidence in the course of a statement under Section 164 of the Criminal Procedure Code falls within the second part of Section 193 of the Indian Penal Code. But in either case, the offence is the one defined in Section 191 of the Indian Penal Code, viz., ' giving false evidence.'
27. After the decision of the Full Bench, the case was again placed for final disposal before a Division Bench consisting of Macleod, C.J. and Shah J. on the 20th of October 1920.
28. Jinnah, with G.N. Thakor, for the applicant.-The Resident First Class Magistrate's Court at Nadiad was not subordinate to the Second Special Tribunal, and, therefore, the direction to prosecute given by the Tribunal under Section 476 of the Criminal Procedure Code for the offence committed before the Magistrate was without jurisdiction. An alternative charge under Section 236 of the Criminal Procedure Code could not therefore be framed without proper sanction of both the Courts. We had raised the objection about want of sanction before the Magistrate as well as before the Sessions Judge but it was overruled. The want of proper sanction is not merely an irregularity which can be cured under Section 537 of the Criminal Procedure Code but it is an error of jurisdiction which vitiates the whole proceeding: see In re Balaji Sitaram (1874) 11 B.H.C 34; In re Bal Gangadhar Tilak 1902 4 Bom. L.R. 750; Queen-Empress v. A. Morton I.L.R. (1884) Bom. 288 and In re Manjunath Shivnath : (1908)10BOMLR1053
29. Secondly, the Resident first Class Magistrate at Nadiad could not himself have proceeded under Section 476 of the Criminal Procedure Code. Under that section no Court has power to direct inquiry into an offence other than that mentioned in Section 195 of the Code and the offences Stated therein do relate to Proceedings in Court that is, it must be an offence committed in the course of the proceedings pending in a particular Court. The statement before the First Class Magistrate was not, however, made in the course of a judicial proceeding. Sections 191 and 193 of the Indian Penal Code must be read along with Section 195 of the Criminal Procedure Code and it must be shown that the false statement on oath was made in the course of a judicial proceeding.
30. At the most, however, a charge under Section 181 of the Indian Penal Code could have been preferred against the present accused for the statement made before the Magistrate but no such charge was preferred.
31. Sir Thomas Strangman, Advocate General, with S.S. Patkar, Government Pleader, for the Crown, not called upon.
Norman Macleod, Kt., C.J.
32. It has now been decided in this case by the Full Bench that the statement made on oath by a witness before a Magistrate under Section 164, Criminal Procedure Code, can be made the basis of an alternative charge together with a statement made on oath at the trial, provided there was a common relation between the two statements. There is a common relation in this case, and, therefore, the accused could be convicted with having given false evidence by the mere fact that he had made contradictory' statements, one before the Magistrate and one at the trial.
33. It has been argued, however, that there has been either a want of or an irregularity in the sanction required by Section 195 Criminal Procedure Code. Assuming that when contradictory statements are made before different Courts, the sanction of each of those Courts is required before a Court can take cognizance of the charge of giving false evidence, and assuming that the Magistrate in this case who recorded the statement under a 164, Criminal Procedure Code, was a 'Court', there is no doubt that the sanction of the Magistrate was not obtained. But the sanction given by the Tribunal was to the effect that an inquiry should be made with regard to the contradictory statements made by the accused before the Tribunal and before the First Class Magistrate when he was examined under Section 164, Criminal Procedure Code. There is no doubt that the accused had ample notice of what he was being charged with, and it was open to the accused when the Magistrate commenced the proceedings to take the objection that the Magistrate could not take cognizance of the charge for want of sanction of the First Class Resident Magistrate who recorded the statement under Section 164, Criminal Procedure Code. Although an objection was taken before the trying Magistrate no application was made to a higher Tribunal to stop the proceedings on the ground that a proper sanction had not been given. It is true that in appeal the learned Sessions Judge thought that no sanction was necessary because he considered that the Resident Magistrate was subordinate to the Tribunal.
34. However that may be, assuming that there is an irregularity in the sanction which was required by Section 195, Criminal Procedure Code, before the Magistrate could take cognizance of the charge against the accused, Section 537, Criminal Procedure Code, is very clear as to what course is open to the High Court in revision when it is brought to its notice that there has been an irregularity in the sanction. It provides that 'no Ending, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVI or on appeal or revision on account of...(b) the want of or any irregularity in any sanction required by Section 195(Criminal Procedure Code) or any irregularity in proceedings taken under Section 476, ... unless such error, omission, irregularity, want...has in fact occasioned a failure of justice.'
35. In Sunder Dasadh v. Sital Mahto I.L.R. (1900) Cal. 217 the petitioners were convicted and sentenced to fine under Section 206, Indian Penal Code, without any sanction being given under Section 195, Criminal Procedure Code, and the Court said: 'No doubt sanction to the prosecution should have been given before the Magistrate took cognizance of that offence, but unless the want of such sanction has, in fact, occasioned a failure of justice (Section 537, Code of Criminal Procedure), the conviction is not bad only on that account. There is nothing in the proceedings to show that this is so.'
36. I should not go so far as to say that in this case there was a want of sanction, that is to say, an entire want of sanction, as there was the sanction of the Tribunal. It may be said that there was a deficiency in the sanction as the Magistrate had not sanctioned prosecution. But however that may be, it cannot be said that this want of sanction or deficiency or irregularity in the sanction granted has in fact occasioned a failure of justice, It has been proved that the accused had made directly contradictory statements which constitute the offence of giving false evidence within the meaning of Section 191, Indian Penal Code, taken in conjunction with Section 236, Criminal Procedure Code. Therefore, there is no reason why we should interfere with the conviction on the ground of any want of sanction or deficiency or irregularity in the sanction.
37. It seems to me the question whether the Magistrate recording a statement under Section 164, Criminal Procedure Code, is a ' Court' or not is now irrelevant, considering the Full Bench in this case has held that these two contradictory statements can form the subject of a charge of giving false evidence. If he is not a Court no sanction would be required. But it has been held by the Madras High Court that a Magistrate recording a statement on oath under Section 164, Criminal Procedure Code, was a Court (see Queen-Empress v. Alagu Kone I.L.R. (1892) Mad. 421 and that decision was followed in Suppa Tevan v. Emperor I.L.R. (1905) Mad. 89. It seems unfortunate that although the words 'evidence', 'judicial proceedings', 'Court', 'Court of Justice' are used in the Indian Penal Code, Criminal Procedure Code, the Indian Evidence Act and other Acts, there is no general definition of these terms applicable to any Act in which they appear. But 'Court' is defined in the Indian Evidence Act, Section 3, as including ' all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence'; and under Section 164, Criminal Procedure Code, a Magistrate is bound to record the statements made to him in such of the manners thereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. If there were anything at all in the point, I should say that there was considerable justification for the decision of the Madras High Court that the Magistrate recording a statement under Section 164, Criminal Procedure Code, was a 'Court'. Cut it seems to me the point is immaterial because under Section 191, Indian Penal Code, the offence of giving false evidence is committed by making a false statement on oath when a person making a statement is legally bound by an oath or by an express provision of law to state the truth. When the law provides, therefore, for any case in which a person can be bound by an oath to speak the truth, and such a person makes a statement which is false, and which he either knows or believes to be false or does not believe to be true, then he is said to give false evidence, and there is no necessity that such a statement should be made in or before a Court, whatever the definition of 'Court' maybe. He is liable to be punished under Section 193, Indian Penal Code, which provides however that a more severe punishment can be inflicted if the offence is committed at any stage of a judicial proceeding than if it is committed in any other case. Therefore there is no reason to interfere with the conviction in this case. The original sentence of two years passed by the City First Class Magistrate was reduced by the Sessions Judge to one year's rigorous imprisonment, and, therefore, that is well within the period of imprisonment prescribed by Section 193, Indian Penal Code, when the false evidence is not given in any stage of a judicial proceeding. Considering all the circumstances we reduce the sentence to six months. This decision will cover the other two cases, Revision Applications Nos 198 and 199, in which also the sentences are reduced to six months respectively.
38. I concur in the order proposed by my Lord the Chief Justice. In view of the opinion of the majority of the Full Bench, by which this Court is bound, it U clear that the two contradictory statements, one of which is recorded by the Magistrate under Section 161, Criminal Procedure Code, not at any stage of a judicial proceeding, and the other recorded by the Tribunal in the course of a judicial proceeding can form the basis of an alternative charge under the latter part of Section 193, Indian Penal Code.
39. There is only one more point which has been raised on behalf of the applicant, that the sanction of the Magistrate before whom the statement under Section 164, Criminal Procedure Code, was recorded was not obtained in this case, and that without his sanction the trial Magistrate could not take cognizance of the case on an alternative charge. No doubt, an order under Section 476, Criminal Procedure Code was made by the Commissioners appointed under the Defence of India Act. But it is clear, on the decisions of this Court as also on the provisions of the Code, that in the case of an alternative charge under Section 193, Indian Penal Code, based upon two statements made before two different Courts, the sanction of both the Courts or of Courts to which these two Courts may be subordinate for such an alternative charge is necessary. It is true that the applicant in this case could not have applied to this Court to revise the order under Section 476, Criminal Procedure Code, made by the Commissioners appointed under the Defence of India Act. But after the proceedings were sent up to the trial Magistrate in this case, the plea based upon the want of sanction of the Magistrate, who had recorded the statement under Section 164, Criminal Procedure Code, could have been taken, and, as I understand from the argument, it was taken. The trial Magistrate apparently overruled that objection. It was open to the present applicant at that stage to have moved this Court to stay proceedings for want of such a sanction. The trial Court, however, proceeded with the case and the accused was convicted. The Sessions Judge has overruled the plea on the ground that such sanction was granted in this case by the Commissioners under the Defence of India Act, as a superior Court. This point is now taken before us.
40. In view of the provisions of Section 537, Criminal Procedure Code, it is clear that the want of any sanction or any irregularity in the sanction required by Section 195, Criminal Procedure Code, cannot be made the basis of interference in revision unless such want of sanction or irregularity has occasioned a failure of justice. It cannot be said in the present proceedings that the want of such a sanction has occasioned a failure of justice, though the objection was raised apparently before the trial Court. I may add that I am unable to accept the Sessions Judge's view that for the purpose of Section 195 the First Class Magistrate was a Court subordinate to the Commissioners appointed under the Defence of India Act. I take it for the purpose of this argument that the Magistrate recording the statement under Section 164, Criminal Procedure Code, was a ' Court ' under the Code of Criminal Procedure. In my opinion there can be no doubt that the duty which the Magistrate is required to perform by way of recording a statement under Section 164, Criminal Procedure Code, is to be performed by him as a Magistrate, i. e., as a Court. The further argument which has been urged on the basis that the Magistrate is not a Court does not really arise. But I may add with reference to that argument that if the Magistrate were not a Court, the position of the applicant would become weaker, and not in any sense stronger, so far as the point relating to the want of sanction is concerned.
41. Thus it seems to me that though the sanction of the First Class Magistrate of Nadiad, who recorded the statement under Section 164, Criminal Procedure Code; was necessary, we cannot interfere in revision on that ground under the circumstances of this case.