Ameer Ali, J.
1. I should have delivered judgment in this matter before but for the intervention of other urgent work. This is an application under Section 476, Criminal P.C., read with Section 195 of the same Code. In other words the applicant asks me to direct a criminal inquiry against the respondent for the two offences under 8. 193 of the Penal Code for giving false evidence and fabricating written evidence. The position is as follows : (a) As against Dawn : False Evidence; (b) As against Dey Fabricating Documents; (c) Against Dawn and Dey : For abetting the fabrication. That is the position of the contemplated charges. The facts are as follows : In 1916 Dawn's father-in-law, Bhuban Dutt, mortgaged to him certain property in the mofussil. In or about 1922 the present applicant Khetriya leased the premises, 4 Armenian Street to Dawn at a rent of about Rs. 325 a month. In the beginning of 1928 there was an account of the Dey's money-lending, money lent to the Deys in Kamala's name, that is the wife of Dawn. There were certain promissory notes or a promissory note again by the Deys in the name of the wife, Dawn's wife. In 1933 Dawn adopted a son Jaladbaran. In August 1933 Kamala died. In 1930 the rent of the premises, which I have mentioned, fell into arrears, and on 31st January 1933 this suit was filed for arrears of rent amounting to Rs. 8000. In the previous year on 23rd September 1932 there is a letter to which I shall have to refer, from a pleader, Haldar, purporting to act on instructions of Dawn demanding Rs. 19,000 for principal and interest on account of Bhuban Dutt's mortgage. On 8th July 1934 there is an entry in the Dey's book purporting to show repayment of the sum of Rs. 5700 on their borrowing account, and on 15th July another entry of repayment of the balance of Rs. 43-12-0. On 23rd July 1934 according to a statement of Dawn and Dutt three fresh promissory notes for smaller sums of Rs. 3000, Rs. 2000 and Rs. 700 aggregating to Rs. 5700 were made by the Deys in favour of Jaladbaran. On 17th December 1934 there was an order for the examination under the provisions of Order 21, Rule 41 of the Dawn, Dutt and Deys. The examination was fixed for 22nd February 1935. On 26th March Dawn complained of the theft of the three new promissory notes. On 30th May 1935 Jaladbaran brought a suit against the Deys being Suit No. 837/35. There was a summons under Ch. 13-A for final judgment. The Deys pleaded payment, and in answer to this plea Dutt filed an affidavit on 12th June 1935. Jnanendra Dawn filed an affidavit on 30th June 1935. The material paragraphs are paras. 10 of Dutt's affidavit and so of Dawn's. The one I have in my hand is Haren Dutt's. So far as material it reads as follows and it is of primary importance in dealing with this matter:
Gopal Das Khetriya (that is the plaintiff in the suit) one of the creditors of the firm of Madhob Chandra Das was about to attach the moneys in the hands of K. O. Das & Sons when the defendants Sailendra Nath De and Haricharan De suggested that a flctitious entry will be made on a back date showing that the moneys hare been paid back to me which stand in the name of Jaladbaran, as they were advised that this course would save them from unnecessary costs and harassment.
2. It is then alleged that the fictitious entry was made for this purpose. On 9th September 1934 and thereafter the examination of the Dawns and the Days took place. By March 1937 the examination had finished. There was some delay 'by reason of various questions of report by the officer. Notice of this application was taken out on 15th November 1937. It is one of these applications which has taken time having regard to the number of counsel engaged. On 9th November 1937 Dawn made an affidavit on this application of which para. 17 is material. This seeks to make out that the entry to which I have referred was not for the purpose specified in the previous affidavit but made somehow in the ordinary course of business and for the purpose of convenience. Those are all the facts I propose to state. I now deal with the complaint desired to be preferred against Jnanendra Dawn for giving false evidence. It falls into three categories. First, what I may call self-contradiction, an auto-contradiction, where he has contradicted himself, in the evidence e.g. no mortgage, mortgage; no loan to Deys, loan to Deys. The second category-statement persisted in but contradicted by other circumstances, or other facts excluding a possibility of truth, e.g. as is contended by the applicant, repayment of the mortgage contradicted by the letter of demand sent through Haldar. The third category is one for which I am afraid 'I was responsible in the course of the argument : mutually exclusive statement in the alternative, e. g. statement in the 1935 affidavit, that the false entry was made as protection against the attaching creditor contrasted with his evidence, that the entry was not made at Day's suggestion and was in the ordinary course of business. I will deal with these three classes as shortly as I can.
3. I will deal first with what is called in the argument and has been referred to in the authorities as ' mere contradiction,' and what I have called auto-contradiction.' I was referred to Keramat Ali v. Emperor : AIR1928Cal862 , also I think, the decision of the late Syed Ameer Ali J. in In Re: Munni Buksh (1898) 3 CWN 81. Speaking for myself, I do not entirely agree with the view, if that is the view, laid down in Keramat Ali v. Emperor : AIR1928Cal862 that every witness should be allowed one lie and one contradiction, that every witness should be allowed to say one thing and then another and then say it is 'a mere contradiction,' I cannot be convicted of perjury. I agree that every allowance should be made for forgetfulness and for confusion, but I think that even in a proper case the Court should take action. Mr. Chatterjee in dealing with this point and with others asked me to consider the 'traditions' of this Court, 'the tradition of British Justice.' I will refer to this aspect of the argument again. The next class is what I may call contradicted statements. The principal matter is the letter of the pleader of 1932. This letter was not put to Dawn in examination and was not shown to him. It is set out in the affidavit in reply. I consider this to be unfortunate.
4. There is possibly an explanation. An explanation has been suggested. I agree that Dawn's own answers with regard to the repayment of the mortgage are most unsatisfactory. The mortgage was not produced. But I am quite' clear having regard to the fact that this was not put to the witness that it would not be right to direct an enquiry without 'preliminary enquiry.' Mr. Clough contended that I should not hold such an enquiry; further that I have no jurisdiction to do so, and has relied as authority for this purpose on the ruling (especially the observations of Coutts-Trotter J.), in Muniswami Mudaliar v. Rajaratnam Pillai (1923) 10 AIR Mad 136 at p. 947. There the Judge ordered the party to produce documents in his possession for the purpose of considering whether or not the prosecution should be launched. This roused the indignation of Coutts-Trotter J. Personally I can see nothing horrible in it, nor do I entirely agree with the view stated. I consider that under the Section itself this Court can direct a preliminary enquiry. I cannot for the life of me think why it cannot. I do not agree with Mr. Clough's authoritiy, if it is an authority for the converse proposition.
5. I now deal with the third class-mutually exclusive statements. I had a suspicion that some one not sufficiently imbued with the 'traditions,' the traditions to which Mr. Chatterjee referred, might have invented some sort of rule which would interfere with a person making two mutually exclusive and contradictory statements on oath. It has been done although the fact that this is so is not fully appreciated by the litigant public. I therefore take this opportunity of bringing to their notice, 111. (b) to Section 236, Criminal P.C. It is possible for a charge to be made against persons who have made two diametrically opposite statements of giving false evidence although nobody is able to say which one is true. This uncomfortable provision is the result of the view taken, I think, by Couch C. J. Substantially two contradictory or mutually exclusive statements which might be relied upon are Dey's 'suggested making entry,' 'entry made to defeat Khetriya 1935,' contrasted with 'entry was not made to avoid attachment.' 'They said nothing about making entries;' should I consider this a lie? Mr. Clough said I should not because there is nothing in the petition. That point of view does not appeal to me. Again whether the Court should or should not, is another matter. It was this suggestion on my part, which roused Mr. Chatterjee to his peroration on 'tradition.' I now come to the fabrication of the document. It is logical, so it seems to me, first to take the case against the Deys. They are the persons who are alleged, to have committed the substantial offence. I agree with Mr. Rahim's argument and I am indebted to Mr. Rahim for his argument on the technical points as well as for his conduct of the case as a whole, that a conviction for abetment may be obtained without conviction of the principal offender: Section 116, Penal Code. There must be a reasonable or something more than a reasonable probability of conviction. Now Mr. Banerjee, Jr., for the Deys takes certain technical points which I may summarize as follows : that having regard to the proper reading of Section 195 (c) the course taken by the applicant is not the proper one where the person to be charged is not a party to the original proceedings. I do not agree with that contention. The second point is that unless actually used in the proceedings, no prosecution can be had under these Sections in respect of fabricating the document. He relied upon Emperor v. Ismail Khadir Sab (1928) 15 AIR Bom 130, Indraehana Bachraj v. Emperor (1932) 19 AIR Bom 185 and Abdul Majid Khan v. Munshi Norol Huq (1913) 17 CWN 937. Again I do not agree. I agree with his third point, there must be some satisfactory evidence that the entry was fabricated for the purpose of being used in proceedings. Mr. Banerjee contends that there is no such evidence. It was suggested and contended that the forgery of false-entry was an extrajudicial forgery. It was for the purpose of beguiling the unwary Khetriyas at his house; it was to be shown to him after dinner when he was in kindly mood in order that he might refrain from taking any further steps. I am not inclined to take that view. The inference may be drawn that it was created for the purpose of these proceedings.
6. As regards the merits I have certain views. The only evidence is really the affidavits of Dawn and Hiran Dutt. They are charged with the abetment of this offence. It may be that there is corroboration to be found in certain circumstances, namely P. S. the unsatisfactory answers of Dawn-and Dutt. It cannot be a strong case having regard to the tainted evidence of persons themselves charged with perjury. That is how the matter strikes me. Now I come to the interest of justice and it is here that Mr. Chatterjee's oratory is relevant. He begged me not to forget the 'traditions' of this Court. I am bound to say that I felt like Warren Hastings listening to Burke at the Bar of the House of Commons. He says that there has been a tradition. If so I will not break it, until I have to deal with a really bad case. The question is, is this such a case. There is some truth in this matter of 'tradition'. Judges of this Court seem to have realized that the system is to some extent responsible for people not telling the truth, and that allowances must be made for that. Those of us who have been at the Bar must realize this to an even greater extent. Take the question of pleading. The denial in the written statement. I have myself been asked by clients as to whether it is right to put down denial of this and denial of that true statement and I am sure every member of the Bar has been asked the same question. There is the question of examination and cross-examination. There is the influence of the various classes and grades of legal advisers, authorized and unauthorized. In nine out of ten cases those are the persons really responsible for the statements on affidavits. Our system is not designed to find out the truth. That is how the matter is regarded, and that is how the tradition has grown up.
7. With regard to 'sanctions' there is 'divine displeasures'. We do not impose a binding oath. Originally this was due to bigotry. In these days I consider that to impose a binding oath would be unfair. It gives too great an advantage to the educated man. The main sanction in all countries is public opinion. Now I agree that the Court's attitude towards these matters should not be circumscribed either by the 'tradition' of Mr. Chatterjee or by 'public opinion'. But speaking for myself, as things are, I think we should be very careful to pick the right case, a really bad case. That is impossible to define. I agree that men should not be assisted in refusing to pay their debts, should not be assisted in concealing their properties from their creditors. On the whole I have come to the conclusion that this is not the long awaited opportunity to break the 'tradition' on which Mr. Chatterjee has so eloquently relied.
8. With regard to the fabrication of documents the case is weak for reasons I have stated. With regard to self-contradiction there is 'tradition'. With regard to the second class of contradiction, it would involve an inquiry before taking action into the letter of 1932, instructions to the pleader and various other matters long gone by. That is not desirable. With regard to mutually inconsistent statement there is just a possibility for successfully arguing that the two statements are not mutually exclusive. Before I finish I shall mention a circumstance which may well have affected my view; or a circumstance which while certainly no defence in law, may well be an explanation in psychology. That is a fact which is not disputed and which was mentioned as being within the knowledge and recollection of most members of the Bar, namely this : Jnanendra Nath Dawn was ruined or his ruin began somewhere in the year 1928 by the action of his own solicitor who misappropriated some Rupees 30,000 or Rs. 40,000 or more which he had placed with his solicitor for the purpose of paying off a mortgage. Technically that is irrelevant. It has reminded me however that in considering the interest of justice, that if this tradition is to be broken it should first be broken near home. I make no order and no order as to costs.