1. This is an application in revision by Ganpat Devaji Patil who was convicted by the First Class Magistrate, Jalgaon, under Section 193, Indian Penal Code, and sentenced to one month's rigorous imprisonment and a fine of Rs. 50, in default further rigorous imprisonment for one month. His conviction was upheld by the Sessions Judge, East Khandesh.
2. The only argument urged for the applicant is that the false statement which forms the subject-matter of the charge was sworn to before the Nazir of the Subordinate Court of Yaval, who had in law no authority to administer an oath for the purposes of any affidavit or statement to be used before the District Magistrate, as it was in this case, and that the proper person before whom the affidavit should have been made was a Magistrate, as laid down by Section 539 A of the Code of Criminal Procedure.
3. The learned Government Pleader has not been able to find authority for the Nazir other than this Court's Civil Circular 39. That, however, applies to civil suits. As the statement was not to be used before the High Court, this Court's Criminal Circular 128 has no application. There can be no question that the declaration or statement made upon oath must be so made before an officer competent to administer the oath. Section 13 of the Indian Oaths Act (X of 1873), to which reference is made for the Crown, cures the form of the oath and even an entire omission to take the oath, but does not cure the absence of authority in the officer administering the oath. It does not, therefore, assist the Crown. It is well settled that a statement made before an officer without authority is not sufficient to sustain a conviction under Section 193, Indian Penal Code : In the matter of the petition of Iswar Chunder Guho (1887) Cal. 653. Emperor v. Rain Prasad (1912) All, 58. Ramchandra Modah v. King-Emperor (1925) Pat. 110. The NAzir in the present case had no authority. The application must be allowed, the conviction and sentence set aside, the petitioner if in custody set at liberty, and the fine if paid refunded.
4. I agree. Section 539 A, Clause (2), prescribes the manner in which an affidavit to be used before any Court other than a High Court under that section can be sworn or affirmed. It may be sworn or affirmed in the manner prescribed by Section 539, or before any Magistrate. Neither of these sections authorizes the swearing of such an affidavit before the Nazir of a Subordinate Court. It follows, therefore, that the Nazir had no authority to administer an oath to the applicant, and the applicant cannot be convicted under Section 199, which is the section under which he should have been charged on the facts on which the prosecution relied in the present case. I agree, therefore, in the order proposed.