Kari Gope vs Mahanth Manmohan Das

B.K. Mullick, Acting C.J.

This is an appeal u/s 476B of the Code of Criminal Procedure. The appellant Kari Gope was an applicant in a proceeding under Act XIV of 1920 in which the respondent Mahanth Manunohan Das was summoned to appear before the Court on the 13th November, 1926.

It is alleged by the appellant that on the 11th November, 1926, summons was duly served upon the respondent and was refused by him. The respondent denies service and says that he was not at home and that the affidavit of the peon as well as the affidavit of the identifier were intentionally false.

The learned District Judge has after inquiry found that the appellant who was the identifier intentionally made a false affidavit and he has filed a complaint for his prosecution for an offence u/s 193 of the Indian Penal Code.

There is evidence to show that the affidavit made by the appellant was false. All the witnesses for the prosecution were not examined by the Court and it is not necessary at this stage to say more than this that there is a prima facie case which must be investigated.

There is, however, a point of law taken which requires notice. It is urged that the affidavit of the identifier was not required for the purpose of proving service of summons upon the defendant, that it was a voluntary declaration and that no prosecution for giving false evidence can be based upon it. Anything that we may say will not debar the appellant from raising the point at his trial, and, there fore, it will be sufficient here to say that our present view is that the prosecution for offences under Sections 193 and 199 of the Indian Penal Code will lie, The affidavit was sworn before an officer competent to take affidavits and the appellant was bound to state the truth. It maybe that the peon''s affidavit was sufficient and that no affidavit was required from an identifier; but if the affidavit was intended to be used in a judicial proceeding, then the offence of fabricating false evidence within the meaning of Section 193 was complete. It makes no difference that the affidavit was voluntary. Voluntary statements made without any intention that the statement may appear in evidence in a judicial proceeding are not offences; so it has been held that a verification in a document not requiring to be verified is no offence; also that false statements made in an application for re-hearing of an ex parte, decree or for a new trial in a Small Cause Court were not criminally punishable. The statements in themselves were not evidence and acquired no extra weight by being verified.

The affidavit in question is also punishable u/s 199. It is clear that the Court was authorised under the Circular Orders of the High Court and Order XIX of the Civil Procedure'' Code to receive an affidavit from an identifier as evidence of the fact of service of summons. Section 199 is wider than Section 192 and applies to every kind of affidavit which the Court is bound or authorised to receive. The CPC and the Circular Orders of the High Court authorise the Court in this instances to receive the affidavit in question.

The result, therefore, is that the appeal will be dismissed and the proceedings will be continued from the stage at which they were left.

Wort, J.

I agree and have nothing to add.