1. This rule was issued upon the District Magistrate of 24 Parganas to stow cause why the convictions of the petitioners and the sentences passed upon them should not be set aside. The facts of the case were that one Bhusan Chandra Khara who was petitioner 2 in the case was an accused before a Magistrate summoned to appear on a certain date. On that date, he was absent and a petition was filed in Court supported by a medical certificate granted by petitioner 1, Prafulla Kumar Khara who is a nephew of petitioner 2 to the effect that the accuasd person was suffering from renal colic since the previous day and was under his treatment and unable to appear. The complainant in the case challenged the fact of the illness of the accused and as a result both the uncle and the nephew were placed on their trial. The nephew was charged under Section 197, Penal Code, and the uncle under Section 198 on the 'allegation that the one issued or signed a false medical certificate and the other, used it. Both men were convicted and it is against these convictions that the present rule has been issued.
2. It is conceded that the certificate in' question is not one required by law to be given or signed and that no conviction can be based on the first part of Section 197, Penal Code. It is, however, contended that Petitioner 1 came within the mischief of Part 2 of that section inasmuch as he issued a certificate relating to a fact of which such certificate is by law admissible in evidence knowing or believing that such certificate was false on a material point. The question therefore is whether this medical certificate is a certificate relating to any fact of which such certificate is by law admissible in evidence. Now, it is further conceded that a medical certificate is not per se so admissible but it has been contended on behalf of the Crown that, in virtue of the provisions of Sections 11,145 and 157, Evidence Act, the certificate was, in point of fact, admissible.
3. This contention appears to us to be based on a misreading of Section 197, Penal Code, itself. In order to constitute an offence under it, a certificate must be in relation to a fact of which such certificate is by law admissible in evidence and as we read the section it means that the certificate must be admissible in evidence to prove in this case the fact of the illness of petitioner 2. A medical certificate is not so admissible and we therefore think that the Issuing and user of the document in question would not render either of the petitioners liable under Section 197 or Section 98, Penal Code. We are fortified in this view by the decisions in the very few reported cases which bear upon the point. It was I held in 20 C.W.N. 520 (17) 4 A.I.R. 1917 Cal. 466 : 33 I.C. 316 : 20 C.W.N. 520 : 23 C.L.J. 423 : 17 Cr.L.J. 140, Mahabir Thakur v. Emperor that a petition filed in a certain suit, stating contrary to the fact that the judgment-debtor had paid off the decretal amount to the decree-holder, was not a certificate within the purview of Sections 197 and 198, Penal Code. In that case the learned Judges pointed out that a certificate in respect of which a man may be punished under Sections 197 and 198 must be either one that is required by law to be given or signed or one that relates to any fact of which such certificate is by law admissible in evidence. The learned Judges went on to say that one or other of these requirements must be fulfilled, that neither requirement was fulfilled in the case because in the first place there was no provision of law which requires a decree-holder or his agent to give or sign a certificate of payment or adjustment nor is there any provision of law which makes the statement of the decree-holder or his agent as to payment or satisfaction admissible in evidence as such a certificate, that is without further proof.
4. As it is conceded that a medical certificate is not evidence without further proof we are of opinion that the decision of the present case is covered by the rule of law laid down in 20 C.W.N. 520 (17) 4 A.I.R. 1917 Cal. 466 : 33 I.C. 316 : 20 C.W.N. 520 : 23 C.L.J. 423 : 17 Cr.L.J. 140, Mahabir Thakur v. Emperor. The same view has been taken in 16 Pat. 21 (37) 24 A.I.R. 1937 Pat. 467 : 170 I.C. 997 : 16 Pat. 21 : 18 P.L.T. 271 : 38 Cr. L.J. 1011, Kumar Choudhuri v. Emperor. There it was held that what Section 197 contemplates is that the certificate should by some provision of law be admissible in evidence as such certificate without further proof. We are accordingly of opinion that both on a correct construction of Section 197 itself and in view of the available authorities a medical certificate is not a certificate relating to any fact of which such certificate is by law admissible in evidence. This rule must accordingly be made absolute. The convictions of the petitioners and the sentences passed upon them must be set aside. The fines, if already paid, are directed to be refunded.
5. I agree.