MAHTAB SINGH Vs. EMPEROR

JUDGEMENT

(1.) Mahtab Singh has been convicted under Secs.199/193, Indian Penal Code, and sentenced to six months rigorous imprisonment and a fine of Rs. 200. His conviction was affirmed in appeal by the learned Sessions Judge and Mahtab has filed the present application in revision to this Court. The facts are that Mahtab Singh was being prosecuted for an offence under Section 420, Indian Penal Code, and in that connection a compromise was filed between the complainant and the accused Mahtab Singh. The Court refused to accept the compromise because the Prosecuting Inspector pointed out to the Court that the accused had been convicted previously of an offence under Section 420, Indian Penal Code. Mahtab Singh applied for transfer to this Court and the application along with the affidavit was sent down to the learned Magistrate for a report. In his report and explanation the learned Magistrate pointed out that the accused had been convicted on a previous occasion of an offence under Section 420, Indian Penal Code. When the report and explanation came to this Court Mahtab Singh filed a second affidavit to the effect that the statement of the Magistrate that Mahtab Singh had been previously convicted under Section 420, Indian Penal Code, was wrong. This Court ordered the prosecution of Mahtab Singh for giving a false affidavit because this Court was prima facie of the opinion that the explanation of the Magistrate was right and the affidavit of Mahtab Singh was wrong. When Mahtab Singh was put upon his trial in connection with the false affidavit he threw himself at the mercy of the Court. It had become abundantly clear by that time to everybody concerned that the report of the Magistrate that there was a previous conviction under Section 420, Penal Code, against the accused Mahtab Singh was right. Under these circumstances the applicant before me was convicted under Secs.199/193, Indian Penal Code, and sentenced to six months rigorous imprisonment. As I said before, his conviction and sentence were affirmed in appeal by the learned Sessions Judge.

(2.) In revision it is argued before me that Mahtab Singh was an accused and consequently he could not swear to an affidavit and there could therefore be no conviction under Section 199 or under Section 193, Indian Penal Code. My attention was drawn to Section 342, Clause (4) Criminal P.C., and to Section 5, Oaths Act, and to the cases reported in the matter of Barkat ( 97) 19 ALL 200, Emperor V. Bindeshri Singh ( 06) 28 ALL 331 and Emperor V. Mattan ( 11) 33 ALL 163. The view taken by this Court in these three cases was not accepted in other Courts. I might mention the case in Gallagher V. Emperor . Sanderson C.J. at p. 56 observed as follows: In my opinion Sub-section (4) of Section 342 of the Code was intended to relate to the proceedings which are specified in Section 342, and that Section 5, Oaths Act, was intended to apply to an accused person while he is, under trial.

(3.) The learned Chief Justice quoted with approval the case in Akhoy Kumar Mookerjee V. Emperor ( 19) 6 A.I.R. 1919 Cal 1021. It is not necessary to mention other cases. In the year 1923 a new section was added to the Criminal Procedure Code. It is Section 539A which provides: When any application is made to any Court in the course of any enquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given.