Emperor vs Batakrishna Pal

Das, J.—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 20th March 1942, and the process was made over to a civil Court peon Narayan Das (p.w. 2) for service. The peon accompanied by the accused went to the village of the judgment-debtor on 28th 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 1st April 1942, and was verified by two witnesses of the locality and was also signed by Batakrishna Pal, the decree-holder. On 7th 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 24th 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 7th April 1942, and it was filed in the Court of the Additional Munsif on 8th 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 u/s 199, Penal Code. It appears that there was also a charge u/s 200, 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 u/s 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. Das, a Magistrate exercising first class powers at Cuttack.

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 1st 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 u/s 199 or u/s 200, Penal Code. He accordingly acquitted the accused person. It is against this order of acquittal that the present appeal is directed.

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 Das, 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.

The main question for determination, therefore, is if the, Seristadar of the 2nd Munsif's Court had authority to administer oath and act as a Commissioner of affidavits in this particular matter. The Seristadur gave evidence to the effect that there was no separate Seristadar for the Additional Munsif's Court at Cuttack and he was functioning as the Commissioner of affidavits in respect of all the affidavits of that Court. In other words, his evidence was to the effect that he was the Seristadar for both Courts, using the expression "Court" not in a legal sense but in a sense in "which it is used in common parlance. The legal position regarding the constitution of civil Courts is to be found in chap. II, Bengal, Agra and Assam Civil Courts Act, 1887. u/s 3 of the said Act there shall be the following classes of civil Courts under the Act, namely, (1) the Court of the District Judge, (2) the Court of the Additional Judge, (3) the Court of the Subordinate Judge, and (4) the Court of the Munsif. It would be clear from Section 3 of the Act that the Court of the Munsif is one Court, though there may be several officers working as Munsifs in the same district. The position is further clarified by Section 13 of the Act. Under Sub-section (1) of the said section the Provincial Government may fix or alter the local limits of the jurisdiction of any civil Courts under the Act. Under Sub-s, (2) of the said section, if the same local jurisdiction is assigned to two or more Subordinate Judges, or to two or more Munsifs, the District Judge may assign to each of them such civil business cognizable by the Subordinate Judge or Munsif as the case may be, as, subject to any general or special order of the High Court, he thinks fit. It is, therefore, clear that though the Court of the Munsif is one Court there may be several officers to whom civil business cognizable by that Court may be assigned by the District Judge. Therefore, each officer does not constitute a separate and different Court, though Munsifs posted to one district are very often called first, second or Additional Munsif. In common parlance no doubt, such expressions as "the first Munsif's Court" "the second Munsif's Court", "the Additional Munsif's Court" are used but in the strict legal sense of the Bengal, Agra and Assam Civil Courts Act, there is one Court of the Munsif, though there may be several officers to whom civil business cognizable by that Court is assigned by the District Judge. The use of such expressions as the "first Munsif's Court", "the second Munsif's Court", etc., is due to a confusion between the "Court" and "Officers" attached to it. Under E. 13 of the Court's General Rules and Circular Orders, Civil vol. I, chap. I all Seristadars are ex-officio Commissioners of affidavits in respect of matters and causes arising within and subject to the jurisdiction of the respective Courts in which they are employed. This rule is made by virtue of the authority given to the High Court u/s 139(F) (sic-b?), Civil P.C. The Seristadar in the particular case under our consideration was a Seristadar of the Court of the Munsif and he was, therefore, a Commissioner of affidavits in respect of matters and causes arising within and subject to the jurisdiction of the Munsif's Court. His evidence further shows that he was working for two-officers. Being an ex-officio Commissioner of affidavits in respect of matters and causes arising within and subject to the jurisdiction of the Court of the Munsif, he was quite competent to administer oaths and act as a Commissioner of affidavits in the particular matter in question, It has not been contended before us that the service of the notice in question related to a matter outside the jurisdiction of the Court of the Munsif. If the matter arose within and was subject to the jurisdiction of the Court of the Munsif, the Seristadar in question was quite competent to administer oaths and to act ex-officio as a Commissioner of affidavits. In this view of the matter the Seristadar was clearly competent to administer oaths and to work as a Commissioner of affidavits in respect of the particular declaration made before him by the accused person. It appears that District Judges have also been vested with powers to appoint Commissioners to administer oaths on affidavits u/s 139(c), Civil P.C. Such a Commissioner appointed by the District Judge as is referred to in E. 15 of the General Rules and Circular Orders will have general powers to administer oaths in matters arising within the district. If the Seristadar in question had such general powers, then the matter would present no difficulty whatsoever. There is, however, no evidence on the record to show that the Seristadar in question had such general powers. His powers were, therefore, limited to matters and causes arising within and subject to the jurisdiction of the Court of the Munsif in which he was employed as Seristadar. I should like to make it clear that the expression "respective Courts in which they are employed" occurring in Rule 13 means the Courts as constituted u/s 3, Bengal, Agra and Assam Civil Courts Act. The same view has been expressed in Fakir Chand Sao Vs. Emperor, and in Chandmal Marwari and Others Vs. Raja Shib Prasad Singh and Another, . The former decision related to the Court of a Munsif and the latter to the Court of a Subordinate Judge. The legal position with regard to both these Courts is, however, the same. As has been observed in Fakir Chand Sao Vs. Emperor,

The Court of an Additional Munsif is a Court of the Munsif. From time to time an extra Munsif is deputed to a district to try such suits as can be made over to him by a District Judge by general or special orders.

In AIR 1934 Pat 192 it has been observed that no such Court as that of the "Additional Sub-" ordinate Judge" of Dhanabad exists u/s 3, Bengal, Agra and Assam Civil Courts Act, 1887.

Learned Counsel for the respondent has contended before us that the decree under execution was a Small Cause Court decree and that it was being executed in a Small Cause Court. He has argued that a Small Cause Court is different from the ordinary civil Court; and the Seristadar of an ordinary civil Court had no power to act as Commissioner of affidavits in a Small Cause Court. In my opinion, this contention is not correct. The application for execution of the decree as printed at pp. 15-16 of the paper book shows that it was an application filed in the Court of the Additional Munsif of Cuttack. It further shows that a prayer for the sale of the immovable properties of the judgment-debtor had been made previously. This seems to indicate that execution was being taken in the ordinary civil Court. Even if it be conceded that the execution was in a Small Cause Court, I do not think it makes any difference. Evidence in the record shows that there was no separate Seristadar working for matters arising within the jurisdiction of the Small Cause Court. u/s 25, Bengal, Agra and Assam Civil Courts Act, the Provincial Government confers upon any Subordinate Judge or Munsif the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act for the trial of suits cognizable by such Courts. This, is not a case in which a separate Small Cause Court has been established u/s 5, Provincial Small Cause Courts Act. It is a case in which a particular Munsif has been given jurisdiction of a Judge of a Court of Small Causes and his Seristadar continues to be the same.

For the reasons given above I am of the view that the learned Magistrate acquitted the accused person on an erroneous view of the law. The Seristadar in question had authority to administer oath in the particular matter and the declaration made before him by the respondent was a legal declaration receivable in evidence in a Court of justice. In that view of the matter the respondent had committed an offence u/s 199, Penal Code, as he had made a declaration which a Court of justice was authorised by law to receive as evidence, knowing that the declaration was false.

The only other question that has to be considered is the question of sentence. It is a little difficult to understand why the respondent made the false declaration in his affidavit when a little more than a week before he had signed the service return of the peon which showed in which manner the service had been effected. That service return would be placed before the Court and nothing was to be gained by making a false declaration to the effect that the notice had been offered to the judgment-debtor who had refused to accept it. To say the least the declaration made by the respondent was a very foolish one. The scribe who drafted the affidavit does not appear to have been examined in the case. The advocate's clerk who identified the respondent before the Commissioner of affidavits has been examined and he-says that the contents of the affidavit were read over to the respondent who admitted it to be correct. The respondent's own case was that he did not remember what had happened so long ago, Though there are no reasons to discard the testimony of the clerk Upendra Nath Mahanty (p.w. 3) one is left with an uneasy feeling that the respondent might have been hoodwinked by somebody else. Then there is the other circumstance that the complaint against the respondent was made about a year after the filing of the affidavit, The decree was for a very petty amount, and the judgment-debtor appears to have resorted to all sorts of tactics to evade payment of the decree. Even the learned District Judge who made the complaint was of the view that the judgment-debtor filed his petition u/s 476, Criminal P.C., probably in the hope that by launching a criminal prosecution he might be able to gain some favour in the civil execution. These are all circumstances in favour of the respondent. I must not be understood to hold the view that the filing of a false affidavit in a Court of justice should be treated with leniency; it is a serious offence which calls for a severe punishment. There are, however, circumstances peculiar to this case which make a severe punishment unnecessary. An offence u/s 199, Penal Code, is punishable in the same manner as the offence of giving false evidence. Section 193, Penal Code, which provides the punishment forgiving false evidence provides for a punishment of imprisonment of either description for a term which may extend to 7 years and also a liability to fine, when the false evidence is being used in any stage of a judicial proceeding. Had I not been compelled under the law, I would not have thought fit to impose any imprisonment in this case.

Taking all these facts and circumstances into consideration, I find the respondent guilty of the offence u/s 199, Penal Code, and sentence him to simple imprisonment for one day and a fine of Rs. 35 only or, in default, rigorous imprisonment for 1 month only. It is not clear from the record if the respondent is on bail, and, steps must now be taken to secure the surrender of the respondent for serving out the sentence,

Sinha, J.

I agree.