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Mr. Chari concedes that s. 195(1) (c) of the Code of criminal Procedure would not bar the present prosecution of Dr. Dutt if the offence fell within s. 465/471 of the Indian Penal Code, because the procedure contemplates a complaint by the court only if the offence is committed by a party. His contention, however, is that the offence, if any, was not under s. 465 nor under s. 471, but one under s. 193 or 196, Indian Penal Code for which the procedure of s. 195 of the Code of Criminal Procedure was imperative. It is, therefore, necessary to examine the ambit of the provisions which are set in opposition by the parties. Sections 465 and 471 occur in Chapter XVIII -of the Indian Penal Code which deals with offences relating to documents and to Property Marks and consists of thirty-one sections. It is divided into three parts. We are not concerned with the last two parts which deal with counterfeiting of Property and other Marks and currency-notes and Bank-notes. The first part deals inter alia with forgery, making of false documents and their use.

Sections 193 and 196 occur in Chapter XI which deals with false evidence and offences against public justice. Section 193 punishes the giving or fabricating of false evidence and section 196 punishes the using of evidence known to be false. Which of these two groups of sections applies here is the question; on that depends whether the court had jurisdiction to take cognizance of the case. Section 463 of the Penal Code defines the offence of forgery in these words :-

"463. Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract or with intent to commit fraud or that fraud may be commit- ted, commits forgery."

It is, of course, not necessary to mention again that for the offences under ss. 193 and 196, Indian Penal Code there could be no prosecution without a complaint in writing of the court concerned. An attempt was, in fact, made to have Dr. Dutt Prosecuted under s. 193 but the court declined to file a complaint.

The broad distinction between offences under the two groups s this. Section 465 deals with the offence of forgery by the making of a false document and s. 471 with the offence of using forged document dishonestly or fraudulently. Section 193 deals with the giving or fabricating of false evidence and section 196 with corruptly using evidence known to be false. The gist of the offence in the first group is the making of a false document and the gist of the offences in the second group is the procuring of false circumstances or the making of a document containing a false statement so that a judicial officer may form a wrong opinion in a judicial proceeding on the faith of the false evidence. Another important difference is that whereas S. 471 requires a user to be either fraudulent, dishonest or both, s. 196 is satisfied if the user is corrupt. The Penal Code defines the expressions fraudulently and dishonestly but not the expression corrupt. We shall now attempt to apply the two groups of offences contained in Chapter XI and Chapter XVIII, to the proved acts of Dr. Dutt. We shall begin with Chapter XI. The definition of the expression "fabricating false evidence" in s. 192 already quoted, quite clearly covers this case. If Dr Dutt fabricated the false diploma, he made a document containing a false statement intending that it may appear in evidence and so appearing in evidence may cause any person who is to form an opinion upon it to entertain an erroneous opinion touching on point material to the result of a judicial proceeding. Dr. Dutt, as alleged, was falsely posing as an expert and was deposing about matters which were material to the result of the trial. He had a document to support his claim should occasion arise. He produced the document, although asked to do so, intending that the presiding Judge may form an erroneous opinion about Dr. Dutt and the relevancy of his evidence. The case was thus covered by s. 192. When Dr. Dutt deposed, let us assume falsely about his training, he committed an offence under s.

It would thus be seen that the action of Dr. Dutt was covered by ss. 192 and 196 of the Penal Code. If Dr. Dutt gave false evidence in court or if he fabricated false evidence the offence under s. 193 was clearly committed. If he used fabricated evidence an offence under s. 196 was committed by him. These offences would have required a complaint in writing of the Sessions Judge before cognizance could be taken.

We may now consider whether the narrower offence of forgery of the diploma or of the user of the forged diploma as genuine was committed. If these offences were committed then prosecution for them could be launched without a complaint by the court concerned. It may be pointed out at once that it was not suggested before us that Dr. Dutt made a false document within the definition of the expression in s. 464 of the Indian Penal Code. In fact, there was no complaint that he committed the forgery himself. He was said to have, used a false document as genuine dishonestly and fraudulently. The word dishonestly is defined by s. 24 of Penal Code. A person who does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dis- honestly'. Dr. Dutt's conduct involved neither a gain to any person nor loss to another. He was asked to produce the diploma in court and he did. It is a matter of some doubt whether he can be said to have used the diploma because he did not voluntarily bring the diploma to court. There is authority to show that such a user is not contemplated by s. 471 of the Indian Penal Code [See Assistant Sessions Judge North Arcot v. Ranaminal(1) and Ma Ain Lon v. Ma On Nu] (2). Even if one were to hold that he did use the document as genuine his intention in producing it was to support his statement and not to cause a wrongful gain to himself or to cause a wrongful loss to another. This part of the section does not apply. The next question is whether his conduct can be said to be fraudulent. The word "fraudulently" is defined by s. 25 of the Penal Code. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The last three words "but not otherwise" clearly indicate that the intent must be an "intent to defraud". This expression has given a great deal of trouble as the rulings show. It may be pointed out that in the Larceny Act of 1.861 and in the Companies Act of 1862 in England the expression was "with intent to deceive or defraud", while in the Forgery Acts the words "with intent to defraud" alone were used. The reason was (1) LI-R. 36 Mad. 387.