EMPEROR Vs. MUHAMMAD ISHAQ

JUDGEMENT

(1.) THIS is an application in revision by one Muhammad Ishaq who has been convicted of an offence under Section 193, Indian Penal Code, in that he presented before the Court of Small Causes of Benares an application for execution of a decree, duly verified according to law, which contained over the said verification allegations of fact which were not true. So far the case for the prosecution has been fully made out: Muhammad Ishaq did present an application for execution in which he stated that a decree had been passed, by the very court to which he was applying, in his favour, for a certain sum of money against Bhola Sahu. It appears that on the date in question no decree had been passed in favour of Muhammad Ishaq against the defendant Bhola Sahu, although a suit was pending which ended later on in a decree in favour of Muhammad Ishaq. THIS decree again was not for the precise sum alleged in Muhammad Ishaq s application for execution. The Magistrate who tried the case in the first instance has discussed the defence set up by Muhammad Iahaq in a manner which clearly shows that he was labouring under a misapprehension as to the law applicable to the case. Muhammad Ishaq s plea was that he stated nothing in the verification in question which he did not believe to be true at the time that he presented his application, thus verified, to the court. The Magistrate refers to the provisions of Section 52 of Indian Penal Code and remarks that on Muhammad Ishaq s own showing there was an absence of due care and attention on his part, and that he cannot be said to have believed "in good faith" that a decree had been passed in his favour for the sum alleged, because a very little inquiry would have shown him that no such decree had been passed. The learned Sessions Judge does not refer to Section 62, Indian Penal Code, in his judgment; but he says that the question in issue is whether Muhammad Ishaq acted in good faith, under a bond fide, mistake. THIS remark suggests that the provisions of Section 52 were also in the mind of the learned Sessions Judge when he dismissed Muhammad Ishaq s appeal. Now the offence which is punishable under Section 193, Indian Penal Code, is defined by Section 191 of the same Code. That definition shows that it lay on the prosecution to prove, not merely that this verification made by Muhammad Ishaq covered statements which were false in fact, but that in malting these statements Muhammad Ishaq either knew or believed the same to be false, or did not believe the same to be true. There has to be a finding against the accused on this point before the conviction under Section 193, Indian Penal Code, can be affirmed. THIS finding must be arrived at independently of the definition of "good faith" contained in Section 52, Indian Penal Code. A man cannot be convicted of perjury for having acted rashly, or for having failed to make reasonable inquiry with regard to the facts alleged by him to be true. It must be found that he made some statement or statements which he knew to be false, or which he believed to be false, or which he did not believe to be true. If I rightly understand the judgments of the two courts below, there has not been any finding against Muhammad Ishaq on this essential point. The Magistrate s finding certainly amounts to no more than this, that Muhammad Ishaq may have believed the statements made in his verification to be true, but that, if he did, he believed this without due care and attention. In coming to this Court in revision Muhammad Ishaq has confined himself to a plea against the severity of the sentence. I take it that, so far as he is personally concerned, he would be prepared to submit to the fine of Rs. 20 as a punishment for his rash and careless action, but he applies to this Court to relieve him from the sentence of imprisonment. The case having come before me, and the record having been examined by me according to law, I am unable to deal with the matter with reference merely to the wishes of the applicant. A man should not be convicted of perjury for having been rash or credulous, and the conviction in this case is in my opinion based upon an error of law. I accordingly set aside the conviction and the sentence, acquit Muhammad Ishaq of the offence charged and direct that his security be discharged and the fine, if paid, be refunded.