1. This is an application in revision by an accused person against whom a complaint under Section 476, Criminal P.C., has been ordered to be filed by the Magistrate in whose Court he was being tried under Section 4, U.P. Adulteration Act. The case against the accused was that he bad exposed adulterated ghee for sale. In his defence he produced a phial containing some ghee stating that it had been given to him by the health officer at the time he took a sample of the ghee, with the request that it be tested again by the public analyst at his expense. The Magistrate thought that the colour of the contents of the original phial was different from that of the contents of the phial produced by the accused and also thought that the seals purporting to be those of the health officer on the two phials were not the same. Accordingly he took proceedings under Section 476, Criminal P.C., against the accused for having fabricated false evidence. The revision came up before a learned Judge of this Court who has referred it to a Division Bench, The facts of this case have not yet been finally found. There is only a suspicion against the accused so far. The question whether the ghee which was exposed by the accused for sale was (identical with the sample in the original phial or in the second phial, is a question of fact which may have to be decided in the criminal case itself. On the face of it, therefore, it seems to be premature for the Magistrate to form an adverse opinion against the accused and without himself enquiring into the matter and recording a clear finding, to direct the prosecution of the accused under Section 193, Penal Code. But we cannot accept the contention urged on behalf of the accused that there is an absolute protection or privilege in favour of an accused person who fabricates false evidence) in order to defend himself. Section 192, Penal Code, is quite general and applies to every person who causes any circumstance to exist.... intending that such circumstance may appear in evidence in a judicial proceeding or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance...so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of the proceeding. Such a person is said to fabricate false evidence. Para. 1, Section 193 provides punishment for fabricating false evidence for the purpose of being used in any stage of a judicial proceeding; while para. 2 provides punishment for a person who in any other case intentionally fabricates false evidence. Obviously the other cases implied are the cases mentioned in Sections 191 and 192, Penal Code. On the language of these sections it is impossible to hold that the accused is in any more privileged position than an ordinary person. To say so would be dangerous and would put a premium on the fabrication and manufacture of false evidence in judicial proceedings by accused persons. The learned advocate for the applicant relies on the case of Emperor v. Ram Khilawan (1906) 28 All. 705. That was a somewhat peculiar case. The learned Judges took the finding of the Sessions Judge, which was the ground of the conviction, to be that:
The accused endeavoured to make it appear that the murder was committed at a place different from that at which it was perpetrated, and thereby fabricated false evidence.
2. This was understood to be nothing more than that an accused person had been charged either with giving or fabricating false evidence:
with the sole object of diverting suspicion from himself and concealing his guilt in regard to a crime with which he is charged.
3. The learned Judges probably did not mean to lay down anything more than this that where an accused person fabricates false evidence with the sole object of diverting suspicion from himself and concealing his guilt he cannot be convicted under Section 193, Penal Code. Of course, the mere intention to divert suspicion and conceal one's guilt need not necessarily amount to fabricating evidence which may appear in a judicial proceeding or in a proceeding taken before a public servant or before an arbitrator so that such authorised person would form a different opinion. But if the act of an accused person comes within the language of Section 192, Penal Code, it is difficult to see how he can take shelter behind the circumstance that he is an accused person. The opinion expressed in Ram Khilawan's case was not followed by the Bombay High Court in Emperor v. Rama Naga Hagavne 1922 Bom. 99. We are of opinion that the view expressed in Ram Khilawan's case was due to the peculiar way in which the learned Sessions Judge had recorded his finding, which apparently did not amount to more than stating that the sole object of the accused was to divert suspicion from, himself. In that view the case would be distinguishable.
4. We are therefore of opinion that there is no warrant for the conclusion that any special protection is intended to be afforded to accused persons who can escape from the penalty imposed by Section 193 by reason only of being accused persons. We would however make it clear that we express no opinion on the facts of this case because they have not yet been finally determined by the learned. Magistrate. In our opinion the prosecution of the accused under Section 193 is premature. The stage for making such an order would arise if the Magistrate in disposing of the case under Section 4, U.P. Adulteration Act, came to a finding against the accused. We therefore quash the proceedings under Section 193, Penal Code, upon the filing of a complaint under Section 476, Criminal P.C., against the applicant.