Knox and Aikman, JJ.
1. In this case, as in the cases which have preceded, the accused had been convicted on an alternative charge of giving false evidence in that he made two contradictory statements. The first statement was made before a Magistrate of the third class while a police investigation in a case of theft was pending. The second was made before a Magistrate of the first class who tried the case. Khem in his defence stated that the statement which he had made in the Court of the Magistrate who tried the theft case was a true statement, and that the statement which he had made to the effect that three other persons had been present at the theft, namely, the statement which he made before the Magistrate of the third class, was made through fear and at the instigation of the police. The learned Sessions Judge on Khem's appeal considered himself bound to follow the ruling Queen-Empress v. Bharma (1886) I.L.R. 11 Bom., 702, and to hold that a statement taken down in the course of a police investigation by a third class Magistrate is not evidence in a stage of a judicial proceeding within the meaning of Sections 191 and 193 of the Indian Penal Code. Even if this were a right view of the law, the false statement made under such circumstances would fall within the second paragraph of Section 193 of the Indian Penal Code. Moreover, the ruling which the learned Sessions Judge has followed is not one which applies to the present case. The statement with which the Bombay Court was dealing was a statement taken by a third class Magistrate in an investigation into a charge of murder, and it was on the ground that such Magistrate had not authority to carry on the preliminary inquiry in the case that the statement so recorded was held not to be evidence in a stage of judicial proceeding within the meaning of Sections 191 and 193 of the Indian Penal Code. If the view of the Bombay Court taken in that case is a correct view, it does not apply to the case before us, in which the Magistrate who recorded the statement under Section 164 of the Code of Criminal Procedure had himself authority, inasmuch as the case was one of theft only, to complete the trial. We have examined the statements made by Khem on the 18th and 23rd of January. They are statements so contradictory that we cannot see any way of reconciling them, and one or the other of them must have been false to the knowledge of the accused. We accordingly allow the appeal, and setting aside the appellate judgment of acquittal, restore the conviction of the Magistrate. We think, however, that it will be sufficient to direct that the accused suffer rigorous imprisonment for the space of three months with effect from to-day's date. Any portion of the imprisonment or detention since this appeal was filed that the accused has undergone on this charge will be deemed to be part of the substantive sentence.
[See also in this connection Queen-Empress v. Alagu Kone (1892) I.L.R. 16 Mad., 421, and Queen-Empress v. Puran Weekly Notes, 1899, p. 39--ED.]