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Emperor Vs. Mangal and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1914)ILR36All13
RespondentMangal and ors.
.....procedure code, sections 241 and 540 - right of accused to summon witnesses--second application by accused to magistrate not seised of the case--procedure--affidavit. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the..........the order of mr. l. s. white, dated the 1st of october, 1913, be set aside and the order of babu jwala prasad, summoning the line inspector, mr. firth, and the city kotwal be restored; (2) that the district magistrate of mirzapur and the superintendent of police be ordered to be summoned; (3) that after passing these orders the case be transferred to some other competent magistrate. after hearing the learned counsel in support of the application i find from the record that this was a case falling under sections 3 and 1 of act iii of 1867. the accused were sent up by the police and placed before mr. l. s. white for trial on the 2nd of september, 1913. on that date the magistrate examined all the witnesses for the prosecution and called upon the accused for their defence. after the.....

George Knox, J.

1. This is an application presented on the part of Mangal Prasad and others. The application is supported by an affidavit bearing date the 18th of October, 1913. That affidavit purports to be sworn by one Shambhu, son of Gopi, caste Brahmin, resident of Jangi Ghatin the City of Mirzapar. The application prays (1) that the order of Mr. L. S. White, dated the 1st of October, 1913, be set aside and the order of Babu Jwala Prasad, summoning the Line Inspector, Mr. Firth, and the City Kotwal be restored; (2) that the District Magistrate of Mirzapur and the Superintendent of Police be ordered to be summoned; (3) that after passing these orders the case be transferred to some other competent Magistrate. After hearing the learned Counsel in support of the application I find from the record that this was a case falling under Sections 3 and 1 of Act III of 1867. The accused were sent up by the police and placed before Mr. L. S. White for trial on the 2nd of September, 1913. On that date the Magistrate examined all the witnesses for the prosecution and called upon the accused for their defence. After the defence was taken, he adjourned the case to the 4th of October, 1913, and again to the 20th of October, 1913. There is another order of adjournment which need not be noticed. On the 26th of September, 1913. Mr. White was away from Mirzapur, and in his absence an application was put in on behalf of the accused praying that eighteen witnesses might he summoned as witnesses for the defence. This application was placed before Mr. Jwala Prasad. That officer, on what authority I know not and cannot discover, passed an order that these witnesses be summoned. Not being seised of the case himself, he had absolutely no power of any kind to pass an order in the case, especially an order of this description. In this list of witnesses neither the Magistrate of Mirzapur nor the Superintendent of Police are named. The accused had, therefore, exhausted the power of summoning witnesses for the defence, All that he could do was to move the Magistrate to summon any other witnesses whom he might deem necessary under the powers vested in the Magistrate under Section 540 of the Code of Criminal Procedure. That an error was made by Babu Jwala Prasad in passing the order he did will be seen from this fact that Babu Jwala Prasad was never seised of the case and had no power to issue summonses for witnesses. On the record there is no order of transfer giving Mr. Jwala Prasad jurisdiction to pass such an order. It will also be seen that Mr. White was quite within his powers in refusing to summon the District Magistrate and the Superintendent of Police. The orders then complained of are right and proper orders, and there exist no grounds of any kind justifying an order of transfer in this case. This application is, therefore, dismissed. But there remain still more serious acts on the part of Shambhu, whom I have already mentioned above. Shambhu in his affidavit seta out that 'this case was originally heard and tried by Babu Jwala Prasad, Magistrate, first class, before whom four prosecution witnesses viz., Mr. Firth, Line Inspector, Police, City Kotwal, Kalka Prasad, one Shahmir, and a man named Kaderi were examined and cursorily cross-examined. I know this from my personal knowledge. That the said Babu Jwala Prasad after the witnesses were so examined called the accused to enter upon their defence, whereupon in view of the cursory cross-examination of the witnesses, the accused put in an application that the witnesses be re-summoned for further cross-examination, which the court in the Interest of justice granted.' The affidavit concludes: 'I solemnly affirm that this my declaration is true, that it conceals nothing and that no part of it is false.' Let an order Issue directing the District Magistrate of Mirzapur to serve a summons upou Shambhu, son of Gopi Nath, caste Brahman, resident of Jangi Ghat, City of Mirzapur, to appear In this Court on the 12th of November, 1913, to show cause why he should not be tried for swearing a false affidavit or why some other suitable order should not be passed.

2. On cause being shown by the accused the Court delivered the following judgment.

3. Shambhu, son of Gopi Nath, caste Brahman, resident of Jangi Gnat, City of Mirzapur, has appeared in this Court in obedience to the order issued upon him. He says that in instructing the learned Counsel who drew up the affidavit he made use of the words 'Joint Sahib' and never made use of the words Babu Jwala Prasad. For the words which appeared in paragraph 3 of the affidavit ho expresses regret and says that he had no intention to mislead the court. The explanation is a very lame one. Not only did he aver that the person who called the accused to enter upon their defence was Babu Jwala Prasad, and that he swore this of his own personal knowledge, but he appended an attestation clause which vouched for the truth of his declaration. To go further, when he came before the Commissioner he solemnly affirmed that this fact was true. It appears from that affidavit that the affidavit was read over and explained to him. It is difficult to understand how, if this procedure was duly carried out and the deponent paid attention to the words read over to him, he failed to notice that he was being made to swear to a fact which did not exist. I am afraid, however, that it may be the case that the care and precision with which affidavits are intended to be verified and sworn to by the persona who make them are not always observed by those who administer affidavits and those who prepare them. The intention of the law is, and it cannot be too often repeated, that an affidavit must contain nothing but bare facts known to the person who makes the affidavit, either personally or upon information from a source which he believes to be a correct source and one on which reliance can be placed. Further, as it is possible for human beings to make a mistake in reciting a fact, the law requires that the contents of affidavits should be carefully read over to the deponents in words understood by them and vouched by them to be correct. In whatever haste Shambhu may have been, it is difficult to conceive that, If he Intended to tell the truth, he would not have noticed that the writer of the affidavit had led him, no doubt, unwittingly, into the making of a statement which he, Shambhu, knew to be false. For this reason I accept the apology which is made by him, and I hope after this that those who make affidavits, those who prepare affidavits, and those who are entrusted with the solemn duty of having affidavits sworn before them will take proper care to ace that the provisions of the law are duly carried out. Carelessness on the part of any one of there three may place the deponent in a very serious position, and the apology which I accept on the present occasion must not be construed to be a precedent of this Court for always accepting statements of this nature as sufficient to condone the making of a false statement. I discharge Shambhu with this warning. The contents of this warning will be duly and carefully explained to him.

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