1. I think this case demands further enquiry and the better plan is to send it to the District Magistrate of Allahabad as 'the nearest Magistrate' and on our own initiation under Section 526, Criminal Procedure Code, to transfer it thence to the District Magistrate of Meerut to institute proceed ings against (1) Musammat Bbarto under Section 211, India Penal Code, for having, in the first report made on 15th October 1916 at the Police Station, Begamabad, laid a false charge against Hansraj Singh for the murder of Ganga Bakhsh, knowing the said charge to be false (2) Musammat Bharto and Nanhua for having on the same date conspired to make such false charge and having conspired to support it by evidence which they knew to be false, (3) Musammat Bharto for offences under Section 194, Indian Penal Code, at the Court of Session, Meerut, on the 3rd of January 1917 in Trial No. 105 by falsely swearing, (a) 'I met the chowkidar on the road by the village. He was sitting there a little way from the village. I told him to accompany me', (b) 'The ehoukidar did not go to see the body'. (c) 'I do not know Balle Mukhia. I do not know any Balwant. I did not go out of the house. I did not go to Balle's house and did not see Balle that day.' (d) 'We (i.e., Ganga Bakhsh and Musammat Bharto) had bullocks when he was called a month before (he was killed), two bullocks and a buffalo. My father-in-law had the cane sown after ploughing with his own bullocks. The field had been ploughed three or four days before my father-in-law was killed;' (4) Nankua Jat for offences under Section 194, Indian Penal Code, at the time and place mentioned in-paragraph (3) in respect of the following statements: (a) I heard Hansraj giving abuse to Ganga Bakhsh. I saw them two 150 yards away. Hansraj began to say to Ganga Bakhsh, Betichod. I told yon last night to plough. Hoshyar, beat berchod.' Hoshyar then hit Ganga Bakhsh with a lathi on the head. Ganga Bakhsh fell.' (6) Hansraj kept saying the same thing over and over again. Why are you ploughing when I forbade you last night,' Hansa told Hoshyar to beat the betichod as he had forbidden him the night before to plough the field.' (5) Bhag-wana for offences under Section 194, Indian Penal Code, at the time and place mentioned in paragraph (3) in respect of the following statements: (a) Hansraj was giving gali to Ganga Bakhsh. I saw them two 150 yards away. Hansraj began to say to Ganga Bakhsh, 'Betichod, I told you last night not to plough. Hoshyar, beat the berchod.'' Hoshyar then hit Ganga Bakhsh witha lathion the head. Ganga Bakhsh fell.' (b) 'I was going to Qadirabad to Amir darzi to take back some clothes. I had given them to him 4 or 5 days before, I had got other clothes made by him.' (c) I did not go to Balwant's house at all that day. I did not see Balwant that day.' I do not think that any prosecution undertaken as the result of this order need necessarily include all the statements above set out or need be confined to such statements, if it is thought that charges ought to be framed including other statements from the same deposition of the same witness respectively. Those are matters more fit to be decided by the Court undertaking the enquiry and deliberately framing the charges. I say nothing about the merits, except that the charge on which the evidence was given was a serious one resulting in a capital sentence, which this Court quashed on account of the unsatisfactory nature of the evidence which, if untrue, would appear to have been elaborately concocted in concert. The question comes before us upon three applications primarily for sanction. Under the circumstances I would not grant sanction to prosecute if the result of doing so would be to leave the matter in the hands of the applicant.
2. Prosecution in this case is justifiable only in the general public interest and should be carefully guarded against becoming a means of oppression or revenge in the hands of individuals. Our attention was drawn to the provisions of Section 476, Criminal Procedure Code, as a means of avoiding this contingency. It is on this ground that I think it wise to make an order under that section rather than grant the application in the form in which it is primarily made. On the general question, I recognise that there may be circumstances which justify a Court in refusing to take action under either section. These are considerations which in my judgment are really more fit for executive action than for a judicial Tribunal. Whether the evidence is sufficient to secure the conviction, whether the prosecution is able to present a case with sufficient substance in it to justify its continuance to a hearing, whether the complaint is made with an indirect motive, whether the prosecution may result in terrifying witnesses from coming forward at all in the interests of justice, are matters really for departmental decision. It seems to me that the absence of an authority whose duty it is to decide upon and undertake prosecutions of this kind, is a flaw in the criminal procedure of this country, I cannot sitting here allow myself to condone what seems to be a case of perjury even when apparently committed in the supposed vindication of the law. A judicial Tribunal cannot commit itself to the proposition that the end justifies the means. It seems to me more injurious that a possibly innocent man should be hanged upon perjured evidence than that a possibly guilty one should escape punishment or even reap some advantage from the corrupt conduct of his enemies. Theoratically there is no higher duty laid upon a Court of Law than that of strict enforcing of a strict adherence to truth.
3. I feel bound to add a few words in order to explain my position in this matter. It has never been my practice to wait for an application from any person to move me to exercise the powers conferred upon Courts of Justice by Section 476 of the Code of Criminal Procedure in respect of the offences committed before such Courts or brought under their notice in the course of a judicial proceeding. If I think at the time of my order disposing of the judicial proceeding, whatever it may be, that the interests of justice require action to be taken under the section above mentioned, I Have invariably taken such action. When disposing of the appeal of Hansraj Singh, I did not at the time think that it was advisable to institute proceedings against any of the witnesses for the prosecution. So far as my experience goes, it is an exceptionally strong step for an Appellate Court to direct a prosecution in respect of evidence which has been believed by the Court which heard it. I cannot say that [am satisfied now that the interests of justice require or will be served by the order in which 1 propose to concur. The application before us, however, was in the alternative asking either for an order of sanction under Section 195, Criminal Procedure Code, or for an order under Section 476 of the same Code directing an enquiry or trial. An application for sanction merely asks the Court to remove in its discretion a bar which the Legislature has seen fit to impose upon the institution of proceedings in respect of certain classes of offences. When one of two Judges constituting a Bench of this Court is clearly of opinion that the case under consideration is a proper one for the institution of further proceedings, I think it would be improper for his colleague to refuse to concur. I should have found it impossible, therefore, to withhold my concurrence if my learned colleague had desired merely to grant the sanction applied for under Section 195, Criminal Procedure Code. Under the circumstances of this case we were both agreed that an order under Section 476, Criminal Procedure Code, was more appropriate than a mere order of sanction to prosecute. 1 have, therefore, thought it right to concur in the order proposed and I do so accordingly.