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Durga Prosad Biswas and Vs. Ari Patar and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.711
AppellantDurga Prosad Biswas And; Digendra NaraIn Ghose
RespondentAri Patar and anr.
Excerpt:
criminal procedure code (act v of 1898), section 195 - sanction to prosecute--perjury--magistrate, discretion of--sanction, when ought not to be given. - .....the trying magistrate in regard to certain statements made by the petitioner with reference to a miras patta which had been prod used in the criminal case, and, owing to certain remarks which he had made in his judgment with regard to the petitioner, an application was made by the opposite-party to prosecute the petitioner for perjury, and it is against the sanction which was then given by the additional district magistrate that this rule has been obtained by the petitioner.2. the matter in respect of which the petitioner gave evidence was in connection with the execution of the 'miras patta. the petitioner was alleged to have signed that patta, but when he was called to give evidence he denied the execution of the patta, the reason which he gave being that he did not remember having.....
Judgment:

Beachcroft, J.

1. An order was made by the Additional District Magistrate of Dacaa for the prosecution of the petitioner under Section 193, Indian Penal Code, or any other applicable section, in connection with certain statements made by the petitioner as witness in a case tried by a Second Glass Magistrate. The Second Class Magistrate convicted the persons who were accused before him bat the Additional Magistrate, on appeal, set aside those convictions. He tools' a different view to the Trying Magistrate in regard to certain statements made by the petitioner with reference to a miras patta which had been prod used in the criminal case, and, owing to certain remarks which he had made in his judgment with regard to the petitioner, an application was made by the opposite-party to prosecute the petitioner for perjury, and it is against the sanction which was then given by the Additional District Magistrate that this Rule has been obtained by the petitioner.

2. The matter in respect of which the petitioner gave evidence was in connection with the execution of the 'miras patta. The petitioner was alleged to have signed that patta, but when he was called to give evidence he denied the execution of the patta, the reason which he gave being that he did not remember having signed it. The Magistrate was of opinion that this witness had fenced throughout in giving his evidence, and that, evidently, considerably influenced him in giving sanction for the prosecution of the petitioner.

3. No doubt, the question of sanction is a question within the discretion of the Magistrate who tried the case; but in this case, if one looks at the evidence of the petitioner as a whole, I do not think that this is a case in which there ought to be any further proceedings in the way of the prosecution of the petitioner for giving false evidence. The reason is this that throughout he gave his evidence in very guarded language. He admitted that the signature was like his; he admitted that there had been a talk of executing the miras patta in connection with the civil suit; but throughout he based his denial of the signature on the fast that he did not remember having signed it. Now, he gave evidence in the criminal case four years after the civil case in connection with which the miras patta is said to have been executed; so that, unless the prosecution could be in a position to prove that this man's memory was not at fault, when speaking of an incident which had taken place four years previously, it is obvious that there could be no conviction in this state. Mr. Das, who appears for the opposite party, has relied very strongly on the fast that the petitioner actually denied the signature; but the whole statement must be taken together. What he says is this: 'These signatures are not mine as I do not remember to have signed any such document,' so that we always some back to the same question, i.e., the question of the petitioner's memory and, as I said before, unless the prosecution be in a position to prove that the petitioner's memory was not at fault it is obvious that a criminal prosecution for perjury can have only one possible result, the discharge of the petitioner.

4. In the circumstances, I think, that no useful object would be served in allowing these proceedings to go on and I am, therefore, of opinion that the sanction for the prosecution of the petitioner must be quashed.

CRIMINAL REVISION NO. 846 OF 1920.

5. The facts in this case are similar to the facts in the case of Digendra Narain Ghose, (Revision Case No. 848) which we have just disposed of, excepting that the position of this petitioner is even stronger than that of Digendra Narain Ghose. For similar reasons, I think that the order sanctioning the prosecution of this petitioner, should also be quashed.

Ghose. J,

6. I agree.


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