EMPEROR Vs. BATAKRISHNA PAL

JUDGEMENT

(1.) This is an appeal by the Provincial Government against an order of acquittal passed by the learned Magistrate exercising first class powers at Cuttack. The accused Batakrishna Pal, who is the respondent before us, had obtained a decree for Rs. 16 and odd annas including costs against one Brundaban Naik (P.w. 7). This decree was put in execution in Execution case No. 231 of 1942 in the Court of the first Additional Munsif, Cuttack. A notice under Order 21, Rule 22, Civil P.C., was directed to be issued against the said Brundaban Naik on 20 March 1942, and the process was made over to a civil Court peon Narayan <JGN>Das</JGN> (p.w. 2) for service. The peon accompanied by the accused went to the village of the judgment-debtor on 28 March 1942, and enquired about Brundaban Naik. Brundaban Naik was not found in his house. As there was nobody else to receive the notice on his behalf, a copy of the notice was hung up on the front door of the residential house of Brundaban Naik. The peon wrote his service return accordingly, and this report was affirmed by the peon before the Nazir on 1 April 1942, and was verified by two witnesses of the locality and was also signed by Batakrishna Pal, the decree-holder. On 7 April 1942, Batakrishna Pal made an affidavit, Ex. 1, regarding the service of the aforesaid notice under Order 21, Rule 22, Civil P.C. In this affidavit Batakrishna Pal stated that the notice had been personally offered to the judgment-debtor, the judgment-debtor read the notice but refused to grant a receipt, and therefore the notice was hung up on the front door of the residential house of the judgment-debtor in presence of respectable persons on 24 March 1942. It would thus appear that the statement made in the affidavit was materially different from She service return of the peon. While the service return of the peon stated that the judgment-debtor was away from his house, the affidavit stated that a copy of the notice had been offered to the judgment-debtor who was present in his house. The date of the service was also given differently in the affidavit. The aforesaid affidavit was made on solemn affirmation before the Seristadar of the 2nd Munsif's Court on 7 April 1942, and it was filed in the Court of the Additional Munsif on 8 April 1942. The allegation against the accused was that he had knowingly made a false declaration in the affidavit, which a Court of justice was authorised by law to receive as evidence of the fact of the service of the notice, and had, therefore, committed an offence under Sec. 199, Indian Penal Code. It appears that there was also a charge under Section 200, Indian Penal Code, against the accused person. The case against the accused was started in the following way: The false affidavit was filed on 8-4- 1942, as stated above. Nothing appears to have been done till 2-3-1948, on which date the judgment-debtor filed an application in the Court of the first Additional Munsif for action under Section 476, Criminal P.C. This would show that about a year had passed before any action was taken against the decree-holder for making a false affidavit, and the petition filed by the judgment-debtor was disposed of by the learned Munsif on 27-8-1943. The learned Additional Munsif did not consider it necessary, in the interests of justice, to make a complaint in view of the delay which had taken place. Then there was an appeal to the learned District Judge who, by his order dated 26-11-1943, made a complaint against the accused person for making a false affidavit. On this complaint the accused person was put on trial before Mr. B. <JGN>Das</JGN> , a Magistrate exercising first class powers at Cuttack.

(2.) The learned Magistrate found that the accused person had made a false affidavit. He expressed the opinion that there was very Little room for doubt that the affidavit made by the accused person was false. He, however, came to the conclusion that the Seristadar of the 2nd Munsif Court, before whom the declaration had been made on solemn affirmation, had no powers to administer oath and act as the Commissioner of affidavits in respect of matters arising in the Court of the 1 Additional Munsif. In that view of the matter the learned Magistrate came to the finding that the declaration made by the accused person was not a legal declaration at all, far less a declaration which a Court of justice is bound or authorised by law to receive as evidence of any fact. In this view of the matter he held that the accused person was not guilty either under Section 199 or under Section 200, Indian Penal Code. He accordingly acquitted the accused person. It is against this order of acquittal that the present appeal is directed.

(3.) There can, I think, be no doubt that the accused had made a false declaration in the affidavit in question. The peon who had served the notice was examined in the case as also two persons, Brajabandhu Mahapatra and Madan <JGN>Das</JGN> , in whose presence the notice bad been served. The evidence of these witnesses clearly shows that the notice was served in the manner stated in the service return of the peon. Batakrishna Pal has also signed the said service return, though not at the bottom. There can, therefore, be no doubt that the notice had been served in the manner stated by the peon and not in the manner stated in the affidavit. I am, therefore, of the view that the accused person did make a false declaration in his affidavit and the declaration was false to his knowledge.