1. This is a rule calling upon the District Magistrate of Nadia to show cause why the conviction of petitioner 1 under Section 181, I. P.C., and that of petitioner 2 of the abetment thereof should not be set aside. One Nandi Gopal Dutta, uncle of the petitioner 2, insured his life in December 1934. He died in April 1935. In connexion with the claim, petitioner 1 swore a false affidavit about the age of the deceased before an Honorary Magistrate of Chuadanga. On receipt of an anonymous letter the suspicion of the company was aroused. A police investigation ensued and as a result petitioner 2 and an agent of the company were com. mitted to the Court of Session on a charge in connexion with the fraud; they were acquitted. This prosecution, amongst others, was started with regard to Offences which were alleged to have been committed in connexion with this false claim. The rule was granted on ground No. 1 attached to the petition which is in the following terms:
For that the Court below ought to have acquitted your petitioners holding that the elements necessary to constitute an offence either under 8. 181 or Section 181 read with Section 109, I.P.C., were not proved against the petitioners.
2. Briefly Mr. Chatterjee argued in support of the rule that this affidavit, even though false, is not within the terms, of Section 181, I.P.C. The question depends upon the meaning to be attached to the words 'legally bound by oath or affirmation to state the truth.' Under Section 43 a person is said to be legally bound to do whatever it is illegal for him to omit to do. The prosecution has therefore to establish that it would have been illegal for the first petitioner to refuse on oath to state the truth about the age of the deceased to the Honorary Magistrate. Under Section 14, Oaths Act, a, person giving evidence on any subject before any Court or person hereby authorized to administer oaths, or affirmations shall be bound to state the truth on such subject. Mr. Chatterjee contended that this affidavit is purely a voluntary statement made for the satisfaction of the Directors of the Insurance Company. He refers us to the decision of the Madras High Court in 6 Mad 252.1 In that case certain persons had been convicted for making false statements in an enquiry into the conduct of a pleader under the provision of the Legal Practitioners Act. Accused 3 was the pleader himself. The learned Judges held that inasmuch as it was not competent for the Court which conducted the inquiry to take a statement from him on solemn affirmation he was not legally bound to speak the truth. On behalf of the Crown the learned Deputy Legal Remembrancer relied on some provision in the contract between the Insurance Company and the deceased which would make the affidavit evidence. The contract was not produced. It is therefore impossible for us to say whether there was anything in it which would entitle us to hold that the affidavit is evidence within the meaning of Section 14 or that petitioner 1 comes within the terms of Section 5 (a), Oaths Act. On the record Mr. Chatterjee's explanation is very probably correct and, if it is correct, there can be no doubt that no offence was committed. The prosecution did not really take proper steps to make out a case. The rule accordingly made absolute, the petitioners' conviction and sentences are set aside and they are discharged from their bail.
3. I agree. Section 181 requires the offending statement to be made to a public servant or other person authorized by law to administer an oath or affirmation. In order to ascertain what public servants or other persons are so authorized one has to go to Section 4 of Act 10 of 1873 (The Oaths Act). That Section provides that all Courts and persons who have by law or consent of parties authority to receive evidence are Courts or persons authorized to administer oaths or affirmations. The argument advanced on behalf of the Crown raises this question: Was the Honorary Magistrate before whom the accused swore this affidavit acting as a Court or person clothed with power to receive evidence? According to the Crown he was in this instance a Court which was receiving what by consent of parties was evidence. Now evidence must have the meaning attaching to it under Section 3, Evidence Act, and it follows that in order to come within the definition the statement or the document would have to be such as a Court would receive in a judicial proceeding. If the statement or document were inadmissible in such a proceeding it would not be evidence. The argument for the Crown assumes that the parties had agreed that this affidavit would be receivable as evidence of the age of the deceased in any possible litigation regarding the policy. This is a large assumption. In the absence of anything to the contrary, it would be unreasonable to suppose that judicial proceedings were contemplated by either party when the policy money was claimed. The Insurance Company had asked for the affidavit probably for no other purpose than that of satisfying itself about the age of the deceased. The agreement upon the existence of which the Crown relies is an anterior agreement between the Insurance Company and the policy holder, and as my learned brother has pointed out no such agreement is forthcoming, nor is there anything to indicate that before the policy was issued it was stipulated that on the death of the deceased such an. affidavit would be sworn, and would be good evidence of age in any future judicial proceeding to which a claim for the policy money might give rise.
4. It is doubtful whether in the ordinary [course such an affidavit would necessarily be receivable in a judicial proceeding as evidence to prove the age of the insured. It might perhaps, subject to certain conditions, be admissible under Section 32, Evidence Act, if the deponent were dead, or if his attendance could not be procured. It might also perhaps be receivable as corroboration under Section 157 of the deponent's oral testimony. But in such cases the admissibility of the document would depend upon the happening of conditions and events. Apart from such conditions and events, the mere swearing of the affidavit did not make the statement contained therein a piece of evidence which a Court would be bound to admit in a judicial proceeding. It follows that in receiving that statement the Honorary Magistrate was not receiving something which was intrinsically evidence and was therefore not acting in the exercise of any authority to receive evidence. In my opinion in the instance with which we are concerned the Honorary Magistrate did not satisfy the definition in 8. 4, Oaths Act, of a Court or person authorized to administer oaths and affirmations, and the offending statement is in the present case not caught-up under Section 181, I.P.C.