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Azibulla Sarcar Vs. Udoy Sonthal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.287
AppellantAzibulla Sarcar
RespondentUdoy Sonthal and ors.
Excerpt:
penal code (act xlv of 1860) section 193 - perjury--primary consideration--intention--criminal p. code (act v of 1898) section 195--sanction for prosecution--discretion. - .....these circumstances, we cannot say that a wise discretion was exercised in sanctioning the prosecution.3. the rule is therefore, made absolute and the order of the district magistrate sanctioning the prosecution is discharged.
Judgment:

1. This is a rule calling upon the District Magistrate of Rungpur to show cause why the order directing persecution of the Petitioner under Section 193, I.P.C., should not be set aside on the ground that the Magistrate does not appeal to have exercised a wise discretion in directing the prosecution for statements made with reference to a case, which seems to have taken place very many years, ago and further that the evidence does not appear to have been relevant to the case in which the Petitioner had given his evidence.

2. We have heard the learned Vakil in support of the rule and have listened to the learned Vakil who appears to have obtained the sanction in the lower Court and we think that the discretion exercised by the second class Deputy Magistrate, who twice, on consideration of the circumstances, under which the statement was made, refused to grant any sanction for prosecution, was a wise discretion and we find that the order of the District Magistrate, reversing the order of the Deputy Magistrate and granting the sanction, is marked by a very grave legal defect as well as by the absence of consideration of the circumstances under which the statement was made. The legal defect to which we have referred is an obvious one, namely, the want of the primary consideration for prosecution for perjury which is that false statement should be made 'intentionally.' There is no finding to that effect and it does not appear to be in evidence that there was any such intention. Then as regards discretion, it has not been considered whether the statement has in any way affected the credibility of the witness. As regards the accused whom it is sought to prosecute, it is quite possible that after a lapse of 17 years he did not remember the circumstances and unless the Sonthals, who got him imprisoned 17 years ago, were the same Sonthals who wish to prosecute him now, the question would be wholly irrelevant. We understand that the Sonthals are not the same Sonthals and, therefore, it appears that the question did not affect his credit in any way. Under all these circumstances, we cannot say that a wise discretion was exercised in sanctioning the prosecution.

3. The rule is therefore, made absolute and the order of the District Magistrate sanctioning the prosecution is discharged.


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