BARODA KANTA SARKAR Vs. EMPEROR

JUDGEMENT

(1.) THIS is a Rule calling on the District Magistrate to show cause why the criminal proceedings instituted against the petitioners fill on Id not be quashed on the ground that the facts alleged do not constitute an offence under Section 193, Indian Penal Code. The learned District Magistrate has forwarded a very long explanation from the Sub-Divisional Magistrate, which I do, not think we need go into. The facts relating to the present case are as follows; at any rate, these are the allegations, because nothing slated in this judgment must be deemed to be facts proved against the accused, but they are facts which will be assumed for the purposes of the present Rule. There are 12 accused in the present case who are all related to one another. The first three accused are the petitioners before us. As long ago as the year 1900, there was a civil suit instituted by the accused or some of them against one Puma Chandra Soiri, who is the father of the present complainant. That suit was compromised on the 18th February 1902 and by the terms of the compromise, which was signed by, amongst others, the three petitioners, it was declared that a certain piece of land was the property of Purna Chandra Som. The three petitioners on the 25th August 1914 instituted criminal proceedings against Lolit Mohan Som, i.e., the present complainant, charging him with mischief under Section 426, Indian Penal Code, and, during those proceedings, the complainant and his father discovered, so the allegation is, that a kobala, dated the 12th February 1914, and two put Las bad been executed. They obtained certified copies of those documents and thereupon the present petitioners abandoned the prosecution of Lolit Mohan Som under Section 426. The petitioners stated that they would bring a civil suit. That was on the 12th September 1914. On the 21st September 1914, Lolit applied for summons against all the accused for having committed an offence under Section 193 of the Indian Penal Code. Apparently, five prosecutions were instituted on the ground that the documents had been presented for registration on five different dates. The only question we have got to consider in this case is whether any case has been disclosed upon the complaint which would bring the case within the meaning of Section 192 of the Indian Penal Code. The kobala, which is one of the documents on which the present prosecution is founded must be taken in the present case to have included, in the description of the land conveyed, a portion of the property which was given to the complainant s father by the compromise of the 18th February 1902 It that be so, it seems to me that the document will fall within the definition of lubrication of false evidence as given in Section 192. The decisions of the High Courts m India, at any rate some of them would seem to show that Section 192 is limited to such cases as those in which the fabricated evidence is, in fact, admissible under the terms of the law of evidence. Speaking for myself, I have gravest doubt whether those decisions are correct I think the words of the section will show that it is the intention that creates the criminal offence and not the fact as to whether, under the terms of the law, the document is admissible in evidence. The view expressed in the cases mentioned might raise a consider-able difficulty in cases where the Judge has improperly admitted in evidence a document not admissible under the terms of the law. However, we have not got to consider that in this case, because the kobala in this case seems to me to be clearly admissible under Section 13 of the Evidence Act. If it is admissible under Section 13, then the accused who are the petitioners before us asserted a right to convey the property which, we must tale for the present purpose, includes a portion father. If they did that with criminal intent it seems to me that that would be a fabrication of false evidence, within the meaning of Section 192 of the Indian Penal Code, and if the facts are proved, the accused--the petitioners before us--could be convicted of an offence under Section 193, Indian Penal Code. I do not wish to express any opinion one way or the other as to whether this document does, in fact, do so. That is a matter to be argued at the trial. THIS is a document in Bengali, which language I do not know. I have had only extracts read to me by one of he learned gentlemen who appear to show cause, from which I cannot say at the Present moment that the statements asserted in this kobala would not, if a criminal intent is proved, render he petitioner, before us liable to conviction under Section 193. I think, therefore, that the present Rule ought to be discharged. Beachcroft, J.

(2.) I agree. I think the document would be admissible in evidence. But, in my view, the question of admissibility is not all important, the real question is the intention of the accused.