Somasundaram, J. -
(1.) THIS revision is filed against an order directing a complaint to be filed against the petitioners for an offence under Section 193, I. P. C. The facts which led up to this complaint are these: On 3 -11 -1950 at about midnight one Bayamma who is now sought to be prosecuted as the first accused was stabbed on her buttocks. Her son -in -,law who is now sought to be prosecuted as the second accused was sleeping nearby and he rushed to the place on hearing her cries. The other two accused, the servants of Bayamma were said to have been sleeping near her. It is stated that she saw five persons at the time of the occurrence and mentioned the names of four persons and the fifth one could not be identified by her. P. W. 2, the son -in -law, gave information to the Police at about 2 a.m. implicating the four names which she mentioned and also mentioning that there was another person concerned in the offence. The woman was taken to the Pulivendla hospital and on account of her serious condition Sub Magistrate came and took a dying declaration from her. In this dying declaration she reiterated the names of the four persons whom she mentioned to P. W. 2 and whose names were given to the Police at 2 a.m. by P. W. 2 and that another person whom she could not identify was also present. Statements under Section 164, Cr. P. C., were also recorded from the two servants Gangadu and David who, as already stated, were said to have been sleeping near her. They supported her story that the other persons mentioned by her in her dying declaration and mentioned by P. W. 2 in the information to the Police along with another were concerned in the attack. After investigation a charge sheet was filed against the four persons mentioned in the first information and in the dying declaration. At the time when the enquiry started, Bayamma was examined as P. W. 1, her son -in -law as P. W. 2 and the two servants as P. Ws. 3 and 4. All of them went back on their earlier statements and stated that they could not identify the assailants. The accused in the case were, therefore, discharged. The committing Magistrate thereupon filed a complaint against the petitioners therein, for an offence under Section 195 read with Section 199, I. P. C., against Bayamma, under Section 211, para. 2 of the I. P. C., against P. W. 2, her son -in -law, and under Section 195, I. P. C., against the servants P. Ws. 3 and 4.
(2.) AGAINST the order of the committing court, an appeal was preferred to the District Magistrate. The District Magistrate after going into the whole matter fully observes as follows in para. 33 of his order:
"I am satisfied therefore that these witnesses stated the truth in the early stages of this case and that they intentionally gave false evidence in the preliminary enquiry."
If the District Magistrate has stopped there, I would not have interfered with his order. But he proceeds further and states as follows: "At any rate there is reasonable doubt as to which of these two contradictory statements is false. In any event, an offence punishable under Section 193, I. P. C., appears to have been committed by each of these appellants." He then directed a complaint to be filed against all of them under Section 193, I. P. C. In revision it is contended by Mr. Basi Reddi appearing for the petitioners relying on - - 'Emperor v. Ningapa, Ramappa', AIR 1941 Bom 408 (A), that in such circumstances as here where the Magistrate is not quite sure as to which of the statements is false, no prosecution should be launched. At any rate without finding specifically that the statement made before the court is false, prosecution should not be launched against these petitioners. In the judgment above referred to Beaumont C. J. follows a decision of a Special Bench of the Calcutta High Court in - - 'Emperor v. Tripura Shankar Sarkar',, 37 Cal 618 (S.B.) (B), wherein the Chief Justice Sir Lawrence Jenkins observed as follows:
"This, then, is how matters stand. The court is convinced that of the contradictory statements now under consideration those made in this court were true, but those before the Magistrate were false; and on a careful consideration of the events leading up to the examination before the committing Magistrate, & of the conditions under which that examination was conducted, we are clearly of opinion that the sanction sought should not be given. Had Tripura repeated here the false story he told before the Magistrate, no such application as the present would have been made; is it to be granted because he told the truth here? Certainly not." After quoting the above observations, Beaumont C. J. observed that in his opinion "that reasoning applies, not only when the court is satisfied that it is earlier statement, which is false, but also when the court is not satisfied to the contrary."
In this case the District Magistrate, though he finds in the earlier portion in para. 33 of his judgment that the statement made in court is false, states later on that there is reasonable doubt as to which of the two contradictory statements is false. There is a doubt in the mind of the District Magistrate whether the statements made in court are false or whether the earlier statements are false. Unless he specifically and clearly finds that the statements made in court are false, he should not order prosecution for the offence. In view of the doubt expressed as to which of the statements is true and which is false, I am compelled to set aside his order directing a complaint to be filed against these petitioners for an offence under Section 193, I. P. C.
(3.) THE next question is whether these petitioners should be prosecuted for any offence at all. So far as Gangadu and David are concerned, they are only servants of Bayamma and in my opinion, interests of Justice do not require that they should be prosecuted for any offence at all and no complaint shall be laid against those two persons for any offence. But so far as Bayamma is concerned, she undoubtedly gave a statement to the Magistrate in what is called a dying declaration implicating four persons by name. According to her evidence in court this must be false and she' knew it to be false and still she made that statement to him. I think that will fall under Section 211, I. P. C., and the interests of justice requires that persons who gave such false information should not be allowed to go scot -free. A complaint by the proper authority as required by the provisions of Section 195 , Cr. P. C., will be laid against her for an offence under Section 211, I. P. C. Similarly, the son -in -law after telling the police that his mother -in -law Bayamma told her about the four names, now tells in court that the mother -in -law did not say so. He has undoubtedly then falsely moved the police for the purpose of taking proceedings against those persons. His act will fall under Section 182, I. P. C. Under Section 195(1), Cr. P. C., the Police officer will have to file a complaint against him for an offence under Section 182, I. P. C. In this order I am only indicating broadly for what offences they might be prosecuted. It is open to the police to examine more carefully the various provisions under which Bayamma and her son -in -law who was examined as P. W. 2 should be properly prosecuted. They need not be bound merely by what is stated in this judgment that Bayamma should be prosecuted under Section 211, I. P. C., and P. W. 2 under Section 182, I. P. C. For such offences as appear to them (except 193 or 195 or 199, I. P. C.) to have been committed by these two persons, the authorities will examine carefully and file a complaint against both of them, as, in my opinion, it is necessary to check such false complaints which are frequently filed.;