1. This is an application to quash an order of the Judge of Gya, under Section 471 of the Criminal Procedure Code, sending the plaintiff in a Civil suit and two of his witnesses to a Magistrate for enquiry into charges of giving false evidence, &c.;
2. I say the order was made under Section 471 of the Criminal Procedure Code, because although Section 16 of Act XXIII of 1861 gives Civil Courts powers similar to those conferred on Civil and Criminal Courts alike by Section 471, there can be no doubt that the whole law is now embodied in Section 471, and our jurisdiction to interfere in the matter is not affected by a suggestion that the order in question was, or might have been, made under Section 16 of Act XXIII of 1861 and not under Section 471.
3. The learned Judge stated the facts of the case and continued.
4. It is contended for Baijoo Lall and Juggernath that the Judge had no power to make that order, inasmuch as he never made any preliminary enquiry and had no sufficient ground on which to base such an order as required by Section 471.
5. We think the objection is valid, and that the Judge had no jurisdiction to deal with these persons as he did. As regards Juggernath, although the Judge disbelieved his evidence, no witness had been called to contradict him. And as regards Baijoo Lall he was not examined before the Judge at all, and there is absolutely nothing to show that he abetted the offence of giving false evidence excepting the one naked fact that he was the plaintiff in the cause. The Judge says he must presumably have influenced his own witnesses. There is no such legal presumption, and we may add that if there were, it would put an end to litigation in the Civil Courts, for no plaintiff would be safe. The Judge, because he disbelieved the two witnesses called for the plaintiff, considered no 'preliminary enquiry' necessary. But that is in contravention of the law: for the law permits the Judge to send the case on to the Magistrate only if, after having made such a preliminary enquiry as may be necessary, he is of opinion that there is sufficient ground (i.e., ground of a nature higher than mere surmise or suspicion) for directing judicial enquiry into the matter of a specific charge.
6. That the Judge did not make any preliminary enquiry and did not know what specific charges he wanted the Magistrate to enquire into is clear. The Magistrate is directed to enquire generally whether or not the two witnesses have voluntarily given false evidence in a judicial proceeding, and as regards Baijoo Lall, 'whether the plaint which he has attested contains an averment which he knew to be false.' Section 471 does not warrant the Judge in issuing a general roving commission such as this to a Magistrate to enquire generally into the truth or falsehood of depositions or of averments in a plaint, and the Judge was bound to indicate the particular statements or averments in respect of which he considered that there was ground for a charge into which the Magistrate ought to enquire. The Judge says, 'The duty of this Court was limited to a reasonable indication of the nature of the offence to be enquired into' and again, 'the necessity or the reverse which existed for a Magisterial enquiry was, I submit, all that the preliminary enquiry of the Civil Court could decide.' We think that this view of the law is incorrect. Something more than a mere indication that a witness has spoken falsely is needed before a Civil Court is justified in initiating a prosecution for giving false evidence. There must be, it seems to us, evidence of a direct and substantive nature before the Court, evidence going to show that the statement made by the witness is absolutely false. There must be in the words of the law 'sufficient ground' for enquiring into the matter of a specific charge.
7. Altogether, we think that the Judge's order is bad, he having made no preliminary enquiry as was clearly necessary, and the order being too vague and general in its character. In thus deciding we follow the course taken in the case of Kali Prosunno Bagchee 23 W.R.Cr. Rul. 39.
8. The power given by Section 471 should be used with care and after due consideration. And it is by no means in every instance in which a party fails to prove his case, that the Judge who has decided against such party is justified in exercising the powers given him by this section. So long as it is a case as to which there is any possible doubt, or in which it is not perfectly certain that the Judge's decision must be upheld in the event of there being an appeal in the Civil suit, the Judge acts indiscreetly and wrongly if the moment he has given his judgment in the Civil suit he exercises the power given him by this section. At the same time, if in the course of the civil trial the Judge has before him clear and unmistakable proof of a criminal offence, and if, after the trial is over, he on consideration thinks it necessary to proceed at once, of course it may be right to do so. Judges should however bear in mind that criminal prosecutions are frequently suggested by successful litigants merely to prevent an appeal in the Civil suit; and they should be careful not to lend themselves to such suggestions too readily. They should also recollect that when they proceed under Section 471, the responsibility for the prosecution rests upon the Judge entirely; such a prosecution being a very different thing from a prosecution instituted on the complaint of a private party and merely sanctioned by the Court under Section 468.
 and 
[Section 16: When in any case pending before any Court any witness or other person shall
appear to the Court to have been guilty of an offence described
Procedure when certain in Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209,
offences under Chapter XI or 210 of the Indian Penal Code, the Court may commit such
of the Penal Code are com- person to take his trial for the offence before the Court of Ses-
mitted in any case pending sion, or after making such preliminary enquiry as may be
before any Court. necessary, may send the case for investigation to any Magistrate
having jurisdiction to try or commit for trial the accused person
for the offence charged, and such Magistrate shall thereupon proceed according to law.]