QUEEN Vs. HARDYAL

JUDGEMENT

(1.) The papers of this case have been sent for an examination of the abstract statement. The prisoner has been convicted of the offence of perjury in the alternative, either that his statement before the Assistant Commissioner was false or that his statement before the Judicial Commissioner was false. These depositions were made in the trial of one Pahita for the murder of a child. Before the Assistant Commissioner the prisoner had stated he had seen Pahita taking a child with her, but did not know who the child was. Before the Judicial Commissioner he had deposed that he met Pahita leading a child, whom he knew to be the child of Gorai. The Judicial Commissioner thereupon committed the prisoner for trial. I understand that he acted under section 172, Criminal Procedure Code, and the following sections, as the charges against the prisoner are signed not by the Assistant Commissioner but by the Judicial Commissioner, who holds the position of Sessions Judge. On the trial the deposition made before the Judicial Commissioner was fully proved, but there was no direct evidence to prove the deposition made by the prisoner before the Assistant Commissioner. The writer of the Judicial Commissioner's Office merely denotes "that the document shown to him is a deposition taken before the Assistant Commissioner. It appears to have been taken in due form upon solemn affirmation, and is attested by the signature of the Assistant Commissioner." The Judicial Commissioner accepted this evidence, and upon it charged the jury who convicted the prisoner in the alternative. The prisoner pleaded guilty to having made a false statement before the Assistant Commissioner, but averred that his statement before the Judicial Commissioner was correct. The Judicial Commissioner sentenced the prisoner to three years' imprisonment remarking on the lamentable indifference which witnesses manifested for the truth. Upon the facts this Court has no power to interfere. But the committal of the prisoner by the Judicial Commissioner for a false deposition given by the prisoner before the Assistant Commissioner, is illegal. Section 172 gives the Sessions Court, that is the Judicial Commissioner, power to charge a person for an offence committed before itself; but not for an offence committed before the Assistant Commissioner. The evidence also as to the prisoner's deposition before the Assistant Commissioner is in fact no evidence at all. Under such circumstances, the conviction as to the statement made before the Assistant Commissioner cannot be sustained, and it follows that the conviction in the alternative must equally fall.

(2.) I entirely concur. There was no evidence before the jury that the prisoner was examined before the Assistant Commissioner. The mere production of a deposition purporting to be signed by the Assistant Commissioner is not enough. There is no evidence that what the prisoner said before the Assistant Commissioner was known or believed by him to be false. The prisoner says he made a mistake, and I think it quite intelligible that he may have done so, or not made his meaning clear. There is no doubt a contradiction between the statement made before the Assistant Commissioner that he saw Pahita leading a child and that he did not know the child, and that made before the Judicial Commissioner that she was leading a child, and that he knew the child to be the child of Gorai Dome. But it is quite possible that when he saw the child in the first instance, he did not recognise it, but afterwards on reflection satisfied himself it was the child of Gorai.

(3.) The prisoner seems to have made two contradictory statements; and without any enquiry as to which statement was untrue, without any satisfactory enquiry as to whether the statement supposed to be false was made wilfully and corruptly, whether the prisoner knew or believed it to be false, he has been convicted and sentenced to three years' imprisonment for giving false evidence. As far as I can judge, from the very short summary enquiry that took place, it was wholly or almost immaterial whether the prisoner knew or did not know the child to be the child of Gorai. I agree that the conviction must be quashed, and the prisoner discharged. I desire to add that I think it desirable that the question of alternative convictions in cases of perjury should be reconsidered. I dissented from my learned brothers when the case on this subject was before the Full Bench, and subsequent experience leads me to think that I ought to have expressed my dissent in more unqualified terms than I did. In the present case there was not before the jury any evidence to show that the prisoner's statement made before the Judicial Commissioner was not quite true. This is the only statement in respect of the supposed falseness of which the Judicial Commissioner had authority to try the prisoner.