(1.) THE appellant gave an affidavit along with his petition of Habeas Corpus under Section 491 of the Criminal P. C. , and he is prosecuted under Section 193 of the Penal Code in respect of some statements contained in that affidavit, which, according to the prosecution, are false and not true to the belief of the appellant or false to his belief. The appellant has been convicted under Section 193 of the Penal Code. It is contend-ed by the learned Counsel for the appellant that Section 476 of the Criminal P. C. , does not apply to this case in view of Subsection (6) of Section 479-A, Criminal P. C. Sub sections (1) and (6) of the said section are important and they read as follows: (1) Notwithstanding anything contained in 8s. 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interest of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being beard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and way bind over any person to appear and give evidence before such Magistrate: * * * * (6) No proceeding shall be taken under Sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this section. The case before me is not one where a person is a witness and has given evidence. Section 476, Criminal P. C. , applies to cases falling under Section 195, Criminal P. C. , including Section 193, Penal Code, which refers to giving false evidence and fabricating false evidence. Section 479a, Criminal P. C. , refers to certain cases of false evidence but not all cases of false evidence as the marginal note shows. Section 479a, Criminal P. C. , refers only to such cases where false evidence is given by witnesses in the course of judicial proceedings. Where false evidence is one which is not given by a witness in any stage of the judicial proceedings, Section 476, Criminal P. C. , would apply. This contention of the learned Counsel for the appellant is, therefore, rejected.
(2.) BUT at the time of the affidavit, the solemn affirmation sworn by the appellant, reads as follows: I, Jagatbandhu Jyotindra Mohan Boy, the applicant abovenamed most solemnly affirm that what is stated above in this application are true to the best of my knowledge, information and belief. He has not stated as required by Rule 5 of Chap. III of the Bombay High Court Appellate Side Rules, 1960, which paras are true to his knowledge, which paras are true to his information and which paras are true to his belief. The said Rule 5 reads as follows: The declarant shall state what paragraphs or portions of his affidavit he swears or solemnly affirms to from his own knowledge and what paragraphs or portions he swears or solemnly affirms to on his own belief, stating the grounds of such belief. As a matter of fact, the word 'information' is not found in the said B. 5. The learned Government Pleader contends that B. 6, which reads as follows has been deleted after the present affidavit has been filed: When any portion is required to be supported by an affidavit by these rules, a declaration on oath or solemn affirmation by the petitioner below the petition stating that the facts stated in the petition are true to the best of his own knowledge or belief would be sufficient compliance; and no separate affidavit, unless otherwise-ordered by the Court, shall be necessary. Rule 6 deals only with the question whether the affidavit should be on a separate paper or it may be at the bottom of the petition. This has no relation whatsoever to the question in this case. But in the affidavit filed by the appellant he has mentioned the word 'information' also and has not stated which paras are true to his knowledge and which paras are based on his information and belief. He cannot therefore be convicted under Section 193 of the Penal Code. His conviction and sentence under that section must, therefore, be set aside.
(3.) THE appeal is allowed, and the conviction and sentence of the appellant under Section 193 of the Penal Code, are set aside.;