Abdur Rahim, J.
1. It is unnecessary in this matter to repeat the entire history. When the application for sanction for perjury was made to the Sub-Magistrate before whom the petitioners had given evidence he granted the sanction with reference to a particular statement made by the petitioner. That order was set aside by the Joint Magistrate, as in his opinion the order granting sanction was wanting in definiteness. But he granted sanction with reference to another statement made by the petitioner before the same Sub-Magistrate. It appears that the respondent had applied for sanction with reference to the very statement with respect to which sanction was ultimately granted by the Joint Magistrate, Mr. Fotheringham, but the Sub-Magistrate, instead of granting sanction with reference to the statement granted sanction with reference to another statement and Mr. Fotheringham as already stated set aside that order on the ground that it was vague. The question of law arises whether the Joint Magistrate had jurisdiction to grant sanction when he did not try the case himself and whether his Court was a superior Court within the meaning of Section 195 of the Criminal Procedure Code. It has been ruled language of the Code too far to say that a witness commits perjury not only in the Court where he gives his evidence but also in the appellate Court where he did not give any evidence, and where all that could be said was that the evidence given by him was relied upon by the party interested. Neither he nor the party who called him might even use that evidence but might impeach the decree of the Lower Court on other grounds.
2. As regards the words 'in relation to any proceeding in any Court' a man giving evidence cannot be said to have any proceeding other than the one in which he is giving evidence in contemplation. When a man gives evidence in a suit or in a criminal case that evidence is given with reference to the original trial of that suit or criminal case. Then as is pointed out by the learned pleader for the petitioner if the intention of the legislature were that any Court hearing the appeal whether it is a superior Court or not could grant sanction because of the words 'when such offence is committed in or in relation to any proceeding in any Court' then it would have been superfluous on the part of the legislature to add the words 'or of some other Court to which such Court is subordinate.'
3. It seems to me that it would be going much further than the language of the section warrants to say that an offence like that of perjury or using false evidence is committed once in the Court of trial and afterwards in appeal with reference to that very evidence. The offence is completed when the evidence is given or the document is produced or put in evidence. It cannot be said to be repeated afterwards because there has been an appeal. It may be that the person who committed the offence does not appeal at all. It is difficult to see how an offence committed in the Court of first instance can be said to be multiplied with the number of appeals that are filed. I would therefore dissent from the judgment in Bhadesar Tiwari v. Kamta Prasad I.L.R. (1913) All. 90.
4. In this case the Magistrate's Court before which the offence is alleged to have been committed was not a Court subordinate to that of the Joint Magistrate although the latter Court heard the appeal. For these reasons, I set aside the order of the Joint Magistrate, dated 2nd June 1917, granting sanction.
5. I agree. I think that Banerji, J., in the case of Bhadesar Tiwari v. Kamta Prasad I.L.R. (1913) All. 90 has been misled owing to his not having given due weight to the language of the section. His reasoning is as follows:
Similarly the false evidence was given in a proceeding which was pending, in the stage of appeal in the Additional Judge's Court,
6. In a broad sense of the words this is true, because at the hearing of the appeal the false evidence would be read. But this is not what is required by the section. That section requires that such offence should be committed in, or in relation to, any proceeding in any Court and that the sanction should be granted by that Court or some other Court to which that Court is subordinate, so that what is to be ascertained is not whether false evidence was given in a proceeding but whether the offence was committed in a proceeding. Now as my learned brother has pointed out the offence of giving false evidence is complete by the statements on oath or affirmation in a Court of facts which the Court finds to be false. And the fact that subsequently such statement having become part of the record comes before an Appellate Court cannot make this a second offence. The offence is complete when the evidence has been given and it seems to me impossible to say that however the proceedings come before the Appellate Court, whether by the appeal of the party who had himself given false evidence or by the appeal of a person in whose favour he gave false evidence or by the appeal of the opposite party or whether the person who gave false evidence in his appeal expresses through his counsel or it might possibly be himself, his desire to withdraw that story however it comes, whatever his attitude before the Appellate Court, the offence is re-committed in that Court. It seems to me that this contention must fail on the language of the section and that therefore the objection raised by the learned Vakil before us must prevail.
7. For these reasons I agree with the order proposed by my learned brother.