Patna High Court
Kumar Chowdhury vs Emperor on 22 September, 1936
Equivalent citations: 170IND. CAS.997, AIR 1937 PATNA 467
JUDGMENT Fazl Ali, J.
1. This is an application on behalf of one Kumar Chowdhury who was prosecuted by the Munsif of Cuttack for offences under Sections 196 and 198, Indian Penal Code, and having been found guilty of these offences has been sentenced to undergo rigorous imprisonment for nine months under each of these sections and to pay a fine of Rs. 50. The sentences of imprisonment passed under the two sections have been made concurrent. It appears that one Dr Triguna Charan Ray, a private medical practitioner, instituted a Small Cause Court suit against the, petitioner and his brother for a sum of Rs. 59, and one of the questions which arose in that suit was whether the petitioner's father Behari Chowdhury was alive on June 3, 1928, or had died before that date. In order to support his allegation that his father had died on May 12, 1928, the petitioner produced in the Court of the Munsiff a certificate signed by the Chairman of Cuttack Municipality and also applied, to the Munsif for issuing summons upon one Lokenath Naik, his family astrologer, to produce, an almanac or diary in which, according to him, the date of his father's death had been noted. The Munsif, before he made up his mind to prosecute the petitioner, held an inquiry and was satisfied that the petitioner's father was alive on June 3, 1928, or in other words he had not died on May 12, 1928, as alleged by the petitioner. The conclusion arrived at by the Munsif has been upheld; by both the Courts below and the only question which was argued before us on behalf of the petitioner was whether the conviction of the petitioner under Sections 196 and 198, Indian Penal Code, could be sustained in law. It may be stated here that the charge under Section 198, Indian Penal Code, was framed against the petitioner "with reference to the certificate granted by the Chairman, Cuttack Municipality, to him which runs as follows:
Certified that Behari Chowdhury of Biswanath Lane died, of 'malarial fever' on May 12, 1928, and that his death was entered in the Death Register of Ward No. 2 on the same date; his age is shown as above 50 years.
2. This certificate was, as it purports to be, based upon an entry in the death register maintained by the Municipality and in the course of the trial it was found that the date noted in the register as the date of Behari Chowdhuri's death tallied with the date in the certificate. As, however, the Courts below were satisfied that the petitioner's father Behari Chowdhury was alive on May 12, 1928, they held that by producing this certificate which contained an incorrect statement with regard to his death, the petitioner had committed an offence under Section 198. Section 198, as will appear presently, must be read along with Section 197. Section 197 runs as follows:
Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence.
3. Section 198 provides that:
Whoever corruptly uses or attempts to use any such certificate, as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.
4. Now, upon reading these sections it is manifest that the certificate which is referred to in Section 198 must be one which is either "required by law to be given or signed" or "is by law admissible in evidence". It appears to me, however, that the certificate with reference to which the offence under Section 198 is said to have been committed by the petitioner does not fulfil any of these requirements. It is not suggested on behalf of the prosecution that it is a certificate which is required by law to be given or signed, but it is strongly contended that because such a certificate can be used in evidence when formally proved, it fulfils the second requirement of Section 197. In my opinion, however, this contention is not sound. The expression "by law admissible in evidence" was construed by a Division Bench of the Calcutta High Court in Mahabir Thakur v. Emperor 23 CLJ 423 : 33 Ind. Cas. 316 : AIR 1917 Cal. 466 : 17 Cr. LJ 140 : 20 CWN 520 and it was pointed out there that what Section 197, contemplates is that "the certificate" should by some provision of law be admissible in evidence as such a certificate without further proof. In the present case it is not disputed that the certificate could not be treated as evidence, unless it was formally proved by the Chairman who had granted it end even then it would be only secondary evidence of the entry in the death register relating to the date of the death of Behari Chowdhury. It appears to me, therefore, the it whatever other offence the petitioner may have committed, he did not commit an offence under s 198, Indian Penal Code.
5. I will now deal briefly with the other charge which has reference to the almanac which Lokenath Naik was summoned to produce before the Munsif. It is to be noted in this connection that although Lokenath seems to have appeared in the Court of the Munsif in obedience to the summons issued on him, he was neither examined nor asked to produce the almanac before the prosecution was started against the petitioner. Thus there was no material before Munsif to enable him to hold that the almanac which Lokenath had been called to produce was in existence or that it contained any false entry relating to the death of the petitioner's father. The question which is raised on behalf of the petitioner upon these facts is that the charge under Section 196 also has not been brought home against him. Section 196 runs as follows:
Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.
6. From the mere reading of the section it seems to me to be1 clear that an offence under the section can be held to have been committed only if it is shown that the evidence which the accused used or attempted to use as true or genuine was in existence at the time. This view is also supported by the decision of the Madras High Court in In re, Katari Veeranna 35 Ind. Cas. 820 : AIR 1917 Mad. 686 : 17 Cr LJ 388. In the present case although Lokenath has been summoned to produce the almanac, he never produced it and we do not know whether he was in possession of any almanac containing a false entry as to the date of the death of the petitioner's father. It is said that even though there may not have been an actual user of fabricated evidence in this case, there was at least an attempt on the part of the petitioner to use such evidence. Here again the prosecution is faced with the same difficulty because a person cannot be properly charged with attempting to use as evidence something which is not proved to be in existence. The prosecution is confronted with a further difficulty so far as this charge is concerned, because the coin-plaint made by the Munsif makes no reference to the almanac or to the fact that an offence under Section 196 had been committed by the petitioner in his attempt to use the almanac in evidence. Under Section 195, Criminal Procedure Code, the Courts are debarred from taking cognizance of any offence punishable under Section 196, Indian Penal Code, when such offence is alleged to nave been committed in, or in relation to, any proceeding in any Court except on the complaint in writing of such Court or of some other Court to which such Court is Subordinate. But, as I have already stated, the Munsif has made no reference in his complaint to the almanac or to the fact that the petitioner had committed any offence in relation to the almanac. In my opinion, therefore, the charge under Section 196 also cannot be sustained in law.
7. I would, therefore, allow this application and set aside the conviction of the petitioner as well as the sentence passed on him. I might, however, observe that I do not consider it necessary to express any opinion as to whether the petitioner is liable to be prosecuted for any other offence or. offences or as to whether by calling for the death register from the Municipality he did not commit an offence under Section 193 or Section 19J, Indian Penal Code. It is for the Crown to decide whether these offences have been committed or not, and if they have been committed, whether the petitioner should be prosecuted for the commission of these offences.
Dhavle, J.
8. I agree. The calling for the Municipal Register, or for the panji of Lokenath Naik also seems to me to fall short of an attempt to use as true or genuine evidence which the offenders knew to be falsa or fabricated and to go no further than the earlier stage of preparation. The offences with which the accused were to be charged in a case of this kind should have been carefully formulated with reference to the provisions of the Penal Code, and the failure to do so has led to this abortive trial.