ASGARALI MULLA IBRAHIMJI Vs. EMPEROR

JUDGEMENT

(1.) THIS is an appeal under Section 476B, Criminal P.C., from an order of the Second Subordinate Judge, First Class, pursuant to which he laid a complaint against the appellant in the criminal Court alleging the commission of offence under Section 199, Penal Code. One Tyabali executed a mortgage deed on 24th October 1925 in favour of Asgarali to secure a debt of Rs. 6000. Asgarali assigned the mortgage deed to Mt. Zohrabi who instituted Civil Suit No. 18-A of 1936/Original Civil Suit No. 77 of 1932 in the Court of the Additional Subordinate Judge, First Class, Nagpur, against the, legal representatives of the mortgagor. The defendants pleaded repayments totalling Rs. 8850-3-6. The plaintiff admitted the repayment of Rs. 1000 but denied the rest. The issue framed was: What were the total repayments under the deed? The finding was: the additional repayments pleaded by the defendants were not made. On appeal to the High Court, the Division Bench was of opinion that Asgarali had account books in his possession but that he had deliberately withheld them from the Court and affirmed the defendants' plea of repayment. The High Court delivered its judgment 6n 5th February 1941 and the defendants applied to the lower Court for action under Section 476, Criminal P.C., on 5th April 1941 and succeeded in inducing that Court to file a complaint against Asgarali for offence punishable under Section 199, Penal Code.

(2.) THE basis of that complaint is the written statement which was filed by Mr. Indurkar on behalf of Asgarali on 18th November 1935. That statement contained the passages extracted by the lower Court in its order under appeal and the allegations of fact made therein were verified by Asgarali as being true to his personal knowledge and belief. The lower Court's order is assailed on two grounds (1) that there is no affirmative evidence on the record to disprove the truth of the allegations made in the verified statement filed by Asgarali on 18th November 1935, (2) that the statement cannot found a criminal prosecution for an offence under Section 199, Penal Code. On behalf of the appellant much reliance is placed on an order passed by me in a previous case which is reported in Asgarali v. Emperor I have heard the counsel at great length and carefully perused the record and took time for consideration. As regards my previous order published in Asgarali v. Emperor it will suffice to say that in that case there was no decision on the merits of the case. The original Court's order laying the complaint was set aside on the ground that the Court had not applied its judicial mind to the material on the record but that it had contented itself merely by reproducing in extenso the opinion of the High Court. In the present case the lower Court had before it the previous depositions of Asgarali which contradicted the allegations made in the verified statement. That evidence may not be sufficient to warrant conviction but it is good enough to justify an enquiry by the criminal Court. On the point of law, however, it appears to me that the appellant's argument has great force. If the impugned passages extracted by the lower Court in its order were false to the knowledge of the declarant the case at first sight would appear to fall either under Section 193 or Section 199, Penal Code. The lower Court does not apply Section 193, Penal Code, but applies Section 199 only. If the lower Court apparently felt a difficulty in applying Section 193, Penal Code, I find greater difficulty in applying Section 199, Penal Code. Section 199, Penal Code, runs as follows: Whoever, in any declaration made or subscribed by him, which declaration any Court of justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false... shall be punished in the same manner as if he gave false evidence.

(3.) NOW the question is: when a person is not bound by law to make a declaration but he chooses to make one, is the Court "bound or authorized by law to receive as evidence" the declaration so made? That is the gist of Section 199, Penal Code. That section intends to extend the penalty attached to compulsory declarations referred to in Sections 51 and 191, Penal Code, to voluntary declarations, provided that such declarations are capable of being used as evidence. A Court of justice cannot use any declarations as evidence, unless they are of the nature of declarations contemplated in Order 19, Civil P.C., i.e., in the form of affidavits. A verified statement filed by a witness is not an affidavit. It is only when the Court orders any fact to be proved by the affidavit of any witness, that it could be used as evidence, not otherwise. That is because the witness knows before hand his legal responsibility in making his declaration and he is conscious of the fact that his word sanctified and confirmed by his oath or solemn affirmation before an officer duly authorised to administer it will be used as evidence against other persons. In J.B. Ross & Co. v. Scriven A.I.R. 1917 Cal. 269 a decree was passed in favour of a plaintiff on the basis of a verified plaint and in support of that decree it was ingeniously argued that inasmuch as the plaintiff was liable to punishment under Section 193, Penal Code, for making a false verification in the plaint as amounting to "giving false evidence," the verified plaint could be used as evidence and the plaintiff's claim decreed. That argument was repelled by Sanderson C.J. on the ground that the verification of the plaint could not be adopted by the Court as sufficient proof of the averment contained in it. In Emperor v. Janki Bai it was held that an allegation made in a verified written statement filed under Order 8, Rule 1, Civil P.C., could not found a conviction of the offence under Section 199, Penal Code, for the reason that an allegation in a written statement is not evidence of any fact which a Court is bound or authorised by law to receive. Similarly in Ram Swarup v. Emperor a conviction of a person who had filed, a verified petition in insolvency (which contained a false statement to the effect that he had never filed any application before) of the offence under Section 199, Penal Code, was held to be illegal. Cunliffe J. observed: The statements in a petition of insolvency are very analogous to statements made in ordinary civil pleadings - statements which are verified by law on the part of the person who places them on the record. But they certainly do not constitute evidence which is, bound to be accepted by the Court. I doubt whether they are evidence in any sense of the word, except, possibly, in the form of admissions against the person who makes them.