1. This is an application by Ashutosh Gangoli to set aside a prosecution for perjary sanctioned by a Magistrate of the First Class of Allahabad and upheld by the learned Sessions Judge.
2. It has been pointed out over and over again by this Court that, if a Court before whom perjury has been committed which it thinks should be tried, it should order the prosecution of the person whom it thinks guilty under Section 476 and as a rule not to give sanction to a private individual. The offence of perjuiy, if any, was committed on the 8th of September last in the Court of Mr. Bain. Mr. Bain's order aaquitting the accused in that case was dated the 28th September 1910. The application for sanction to prosecute was made in his Court on the 3rd of November 1920 and on the 1st December it was granted. The appeal was dismissed by the learned Sessions Judge on the 17th January 1921. An application against that order was written out and an office report of this Court was taken on the 21st January 1921. As a matter of fact, the application was not filed in Court until the 14th of March 1921. Shortly before this application it appears that the complaint in the case was filed. There has, therefore, been considerable delay on both sides and one can only conjeeture as to what has been going on. The applicant here lost a bicyale and reported the loss at once in a letter to the manager of Messrs. Wheeler & Co., in which firm he was employed. The letter shows that he had a very accurate knowledge of his biaycle and its component parts. Subsequently, it appears that he saw in the shop of Brij Narain Lal, a bicyale repairer in Colonelganj, two bicycles and apparently satisfied himself that parts of his stolen bicycle had been put together to make up two bicyeles in the shop. He accordinarly complained to the Police and the Police sant up Brij Narain Lal for trial. Before the Magistrate applicant here very positively identified certain portions of the biaycle which he claimed to be his. For instance, he said that the left--hand grip on the first bicycle was his and the other was not, that he identified it by certain scratahes, and he said that the frame of the second 'bike' was his. The Magistrate was satisfied that, at any rate, as regards the parts claimed by the applicant and identified by him as his were certainly not his and this was specially so in the case of the frame which was found to measure 24 inches whereas it had been described by the applicant in his letter to Messrs Wheeler and Co. as 27 or 28 inches. But this description 27 or 18 inches seems to indicate to me that the applicant was not certain, at any rate, within an inch of the size of his frame. On the application having been made for sanction the learned Magistrate said: 'There does not seem to have been any malice in the ease. The complainant did not mention accused's name either as the guilty man nor as a suspect and it was only when he thought he identified parts of his bicycle that he reported against him.' He, therefore, held that there was a complete answer to any charge under Section 211, Indian Penal Code, but on the question of perjury he goes on to say: 'it is, therefore, not clear to me how he could identify as his before this Court parts which could under no circumstances whatever belong to his bicycle.' On appeal the learned Sessions Judge, without considering whether the applicant had deliberately committed perjury, seems to have taken into account a suggestion which had not been made by anybody up till then. He said,' He may have a dishonest intention of re-placing his bicycle which was stolen by another which he knew well did not belong to him.' I can gee nothing in the record to justify any such supposition. I, therefore, think the learned Sessions Judge has somewhat misdirected himself on the point. I accept the dictum of Mr. Justice Piggott in Muhammad Ishaq v. Emperor 25 Ind. Cas. 331 : 36 A. 362 : 12 A.L.J. 550 : 15 Cr. L.J. 579, namely, that a man cannot be convicted of perjury for having acted maliciously or for having failed to make a reasonable inquiry with regard to the ants alleged by him to be true. It must be proved that he made some statements which he knew to be false and which he believed to be false or which he did not believe to be true. It seems to me impossible to hold that it is at all likely that a trial in this case will end in conviction. However strong suspicion there may be against the accused, I am not at all satisfied that a Court could hold that he knew that what he was saying was false. I am quite sure that the applicant who is a young man and who basis suffered, I have no doubt, considerably during the course of the last few months, will take warning how he gives evidence in future. I allow the application and set aside the order of sanction.