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Superintendent and Remembrancer of Legal Affairs Vs. Ijjatulla Paikar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1931Cal190
AppellantSuperintendent and Remembrancer of Legal Affairs
Respondentijjatulla Paikar
Cases ReferredSatish Chandra Mallick v. Emperor
Excerpt:
- .....over his charge on 23rd december 1929, and the appellant showed cause before mr. j. c. lahiri, the sessions judge of pabna and bogra, on 25th january 1930; and on 10th february 1930, he made a formal complaint against the appellants. in this he stated as the ground of complaint merely that the appellants intentionally made false statements. he did not say, in terms of section 476 (1), criminal p. c, that he was of opinion that it was expedient in the interests of justice that an inquiry should be made. but in his order which it recorded, he said:the mere fact that conflicting statements are made by a witness on different occasions does not justify a prosecution for perjury, but such prosecution is quite legitimate when it appears that the conflict is due not to any loss of memory or the.....
Judgment:

Lort-Williams, J.

1. These are appeals against the orders of the Sub-divisional Officer of Bogra acquitting the two appellants of charges under Section 193, I.P.C.

2. The appellants were search witnesses in a case under Section 395/411, I. P.C.

3. Before the commiting Magistrate on 12th March 1929 they deposed that certain ornaments had been found, that a search list had been made and signed toy them, that labels had been attached to the ornaments, and that these also had been signed by them.

4. Before Mr. B. C. Chatterji, the Additional Sessions Judge of Pabna and Bogra, on 19th September 1929, they identified the search list, but said that they could not remember what ornaments had been found, and that they had signed some small pieces of paper, but could not say what had been done with them. Consequently, Mr. B. C. Chatterji, issued notices to the appellants to show cause why they should not be prosecuted for perjury under Section 193, I. P.C.

5. Mr. B. C. Chatterji made over his charge on 23rd December 1929, and the appellant showed cause before Mr. J. C. Lahiri, the Sessions Judge of Pabna and Bogra, on 25th January 1930; and on 10th February 1930, he made a formal complaint against the appellants. In this he stated as the ground of complaint merely that the appellants intentionally made false statements. He did not say, in terms of Section 476 (1), Criminal P. C, that he was of opinion that it was expedient in the interests of justice that an inquiry should be made. But in his order which it recorded, he said:

The mere fact that conflicting statements are made by a witness on different occasions does not justify a prosecution for perjury, but such prosecution is quite legitimate when it appears that the conflict is due not to any loss of memory or the like, but to some intended contrivance to defeat a case already proved.... Such conduct on the part of a witness to intentionally make false statements should be legitimately made the subject of prosecution. A complaint will therefore be made.

6. On trial by the Subdivisional Officer of Bogra the appellants stated that they had not willingly made false statements, that they had stated only what they remembered, and that any discrepancy was due to the interval of six or seven months which had elapsed between the making of the two statements.

7. Also they contended that the Sessions Judge had no power to make the complaint under Section 476 (1), because the offence (if any) had been committed, not before his Court but before the Court of the Additional Sessions Judge.

8. The trial Magistrate in his judgment stated that the appellants had filed written statements in which they had explained that their depositions before the Additional Sessions Judge were not properly explained to them and that no specific questions had been put, whether the labels signed were attached to the ornaments. Thus, it could not be said that the appellants had denied having stated that the labels were attached to the ornaments and that no other points in their statements were exceptionable. That apart from the question that the evidence had not been properly explained to the accused so as to make them realize their responsibility and that their attention had not been drawn specifically to the actual point about attaching the labels to the ornaments, there was a serious legal defect which had vitiated the trial. Then he went on to hold that the Sessions Judge had no power to make the complaint for the reasons already stated. This is the first point which we have to decide, and in our opinion the Magistrate was wrong.

9. Under Section 9, Criminal P.C., the Local Government is empowered to establish a Court of Session for every Sessions division, and to appoint a Judge of such Court and Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in such Court, and to direct at what place or places the Court of Session shall sit.

10. Thus there is only one Court of Session in each Sessional division, sitting at different places, and manned by a number of Judges. The Court is the Court of Session. It is accurate to refer to the 'Court of the Sessions Judge,' and the ' 'Court of the Additional Sessions Judge' and so on except colloquially. Just as in the High Court, we do not refer to the constituent Courts as the Court of any particular Judge, either 'permanent' or 'additional.'

11. The offence under Section 193, I.P.C., was committed, (it at all), before the Court of Sessions of Pabna and Bogra, and the complaint was made by a Judge of that Court.

12. If authority is required for such a self-evident proposition it will be found in the following cases: Queen-Empress v. K. Kunjan Menon [1891] 1 M. L. J. 397 Emperor v. Molla Fuzla Karim [19061] 33 Cal. 193 Bai Kasturbai v. Van-nalidas Lakhmidas A.I.R. 1925 Bom. 436 and Shaik Bahadur v. Shaik Eradatulla Mallick [1910] 37 Cal. 642. The second point to be decided is whether the complaint was invalid because the Judge omitted to record an express finding that in his opinion it was expedient in the interest of justice that an enquiry should be made.

13. We have been referred to Keramat Ali v. Emperor : AIR1928Cal862 where Rankin, C. J., said that he looked in vain for any such recorded finding, and set aside the order but not on that ground and Surendra Nath Jana v. Kumeda Charan Misra : AIR1930Cal352 where Pearson, J., seems to have regarded the above judgment of Rankin, C.J., as an authority for the proposition that the recording of such an express finding is essential and that the Court's finding under Section 476, cannot be inferred from the terms of its judgment or order.

14. In our opinion, although the provisions of the section are not mandatory but permissive, yet, if the Court decides to make a complaint, it must record a finding that in its opinion it is expedient in the interests of justice that an enquiry 'should be made. Moreover, it would be convenient and would save the time of an appellate Court if such finding were expressly recorded. But the absence from the record of an express finding, or a finding in the exact words of the section will not invalidate the com-'plaint.

15. The Court need not repeat the exact words of the section like a parrot. It is sufficient if the record, shows clearly that the Court has applied its mind to the question of expediency, and has come to the conclusion that an enquiry is expedient. A finding merely that there is a prima facie case, or that statements were contradictory, as in the two cases mentioned above, will not be sufficient. It is not in every one of such cases that an enquiry is expedient in the interest of justice. But a finding that the evidence] given was false, followed by a complaint, would probably be sufficient to raise the inference that the Judge found that an enquiry was expedient : see Bhuban Chandra Pradhan v. Emperor A.I.R. 1927 Cal. 628 per C. C. Ghose, J., at p. 284 (of 55 Cal.), and the view which we have expressed seems to have been adopted by Pearson, J., in a later case reported in Satish Chandra Mallick v. Emperor : AIR1930Cal705 and finds some support also, in the judgment of Rankin, C. J., in Kexamat All's case (supra).

16. So far as concerns the present appeals we are of opinion that there is on the record a finding sufficient to satisfy the provisions of the section. The learned Judge states quite clearly that mere conflict between different statements is not sufficient, but that when it appears that the conflict is due not to loss of memory or the like but to deliberate falsehood, prosecution is legitimate, and therefore he makes the complaint.

17. This is equivalent' to a finding that an enquiry is expedient in the interests of justice.

18. Finally it was contended by the Crown that the Magistrate did not acquit the accused upon the merits, and that the case should be sent back to him for further consideration. Alternatively, that upon the evidence the accused ought to have been convicted.

19. In our opinion it is clear that the Magistrate acquitted the accused upon the merits, as well as upon the point of law which was raised, and we see no reason to interfere with his decision.

20. These appeals therefore are dismissed.

S.K. Ghose, J.

21. I agree.


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