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1. This is a case submitted under the provisions of the final clause of Section 339 of the Code of Criminal Procedure, which came before me in single Bench. Being of opinion that sanction to prosecute for the offence of giving false evidence should not be granted unless there be good prima facie ground for considering that a conviction will follow, and that, in this case, unless the charge be drawn in the alternative form provided as No. XXVIII (4) in Schedule V, Act X of 1882, such result is improbable, I had to consider the law regarding an alternative charge of offences made punishable by Section 193 of the Indian Penal Code, as laid down for these Provinces in Empress v. Niaz Ali I.L.R. 5 All. 17 at p. 22. The passage to which I refer is the following: "It is not of itself sufficient to warrant a conviction either for giving false evidence or making a false oath, that an accused person has made one statement on oath at one time, and a directly contradictory one at another. The charge must not only allege which of such statements is false, but the prosecutor must be prepared with confirmatory evidence, independent of the other contradictory statement, to establish the falsity of that which is impeached as untrue. The remarks of Holroyd, J., in R. v. Jackson 1 Lewin C.C. 270 are valuable upon this point: 'Although you may believe that on one or the other occasion the prisoner swore what was not true, it is not a necessary consequence that he committed perjury, for there are cases in which a person might very honestly and conscientiously believe and swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time be convinced that he was wrong, and swear to the reverse without meaning to swear falsely either time. Again, if a person swears one thing at one time and another at another you cannot convict where it is not possible to tell which is the true and which is the false.' Gurney, B., also took a similar view in the case of B. v. Wheatland 8 C and P. 238 upon which and a decision of the Court of King's Bench in R. v. Harris 5 Barn. and Ald. 926 Mr. Greaves in Bussell on Crimes (Vol. Ill, pp. 82 and 23, notes) records some valuable comments. Section 455 of the Criminal Procedure Code is no authority for the form of charge prepared by the Magistrate in the present case, and the word 'alternative' as used in the section means that where the facts which can be proved make it doubtful what particular description of offence an accused person has committed, the charges may be so varied or alternated as will guard against his escaping conviction through technical difficulties."

2. Being myself of opinion that, under the law of British India, it is not necessary that the charge should allege which of two contradictory statements upon oath is false, but it is sufficient (unless, indeed, some satisfactory explanation of the contradiction should be established) to warrant a conviction of the offence of giving false evidence to show that an accused person has made one statement upon oath at one time, and a directly contradictory statement at another, I directed the case to be laid before a Division Bench.

12. The question of proof of the offence of giving false evidence by contradictory statements was considered by the Indian Law Commissioners in 1847, and was noticed by them in para. 154 of their second and concluding Report on the Indian Penal Code (Pari. Papers, 16th May 1848, Indian Law Commission, 330) in these terms: "By Regulation III of 1826 of the Madras Code, a person wilfully and deliberately giving two contradictory depositions on oath is liable to be convicted of perjury, and to suffer the punishment prescribed for that offence. It has been decided (Russell, vol. ii., p. 542) that, under the law of England, perjury cannot be legally charged and assigned by showing that the defendant did on two different occasions make certain depositions contradictory to each other, with an averment that each of them was made knowingly and deliberately, but without averring or showing in which of the two depositions the falsehood consisted; and we apprehend that under similar circumstances the offence of giving false evidence could not be so charged under Clause 188. We are strongly of opinion that 'whoever in any stage of a judicial proceeding, being bound by an oath, or by a sanction tantamount to an oath, to state the truth, gives a statement touching any point material to the result of such proceeding which directly and positively contradicts a statement touching the same point, given by him on oath, or under a sanction tantamount to an oath, in any stage of a judicial proceeding, at another time,' should (failing any satisfactory explanation of the contradiction to negative the inference of a corrupt intention) be liable to punishment. Under such circumstances, it is morally certain that the party has given a false statement on one or other of the two occasions, though it may be impossible to show positively which of the contradictory statements is false. Both statements may perhaps be false, but one only can be true. It is possible, indeed, that the first statement may have been false through an error or mistake, which has been corrected by subsequent information, and that the second contradicts the first because it contains the truth which had come to the knowledge of the party in the meantime. But when there is no such allegation, nor any explanation of the contradiction to negative the inference that the party at one time or the other has been guilty of stating on oath (or as it may be) as true what he knew to be false in order to deceive a Court of Justice, on a point material to the question to be decided by the Court, we think the law should be so framed that he should not be able to escape from the punishment he would well deserve. In the case in question we do not see why the party who has given contradictory statements might not be charged with the offence of false evidence upon each of them successively--first, upon that which from the circumstances there is reason to think is most probably the false one, giving the other in evidence against him, which would throw upon him the onus of proving it to be false, and if he succeeded in defending himself against that charge by means of such proof, then upon that other statement as proved to be false by the evidence he had himself adduced. By this mode of proceeding a really guilty person could hardly escape. And a person who had such a defence as before supposed, being able to show, for instance, that his second statement differed from the first because he had ascertained in the meantime that the first statement was incorrect, would have an opportunity of clearing himself by given proof to that effect. If necessary, a special rule might be enacted to sanction this mode of procedure."

13. The preparation of the Code of Criminal Procedure went on (under the same hands) pari passu with that of the Penal Code, and although the former Code was not passed till nearly a year after the latter, the two Codes came into force on the same day, the 1st January 1862. The Code of Criminal Procedure contained in its 242nd section a provision which satisfied the requirements of the Indian Law Commissioners as cited above. The provision was in these terms: "When it appears to the Magistrate that the facts which can be established in evidence show the commission of one of two or more offences falling within the same section of the Indian Penal Code, but it is doubtful which of such offences will be proved, the charge shall contain two OK more heads charging respectively each of such offences accordingly." And effect was further given to the terms of Section 242 by the terms of Sections 381 and 382 of the Code. What happened in Bombay in the matter now before us I have been unable to discover; but the Madras Court of Sudder Nizamat, in April 1862, (the Madras Regulation III of 1826 having been repealed as from the 1st January 1862, by Act XVII of 1862), the Calcutta Court in May 1862, and the Agra Court in June 1862, failing apparently to notice the effect of Sections 242, 381 and 382 of the Code of Criminal Procedure, issued Circular Orders, informing the Courts subordinate to them that the mere making of contradictory statements upon oath would not now constitute the offence of "giving false evidence," or, as the Calcutta Court still called it, "perjury." The Calcutta Sudder Court was merged in the High Court in 1862, and cases soon afterwards began to be decided contrary to the terms of the Circular Order of May 1862. At length, in 1866, a case in point R. v. Zumeerun 6 W.R. Cr. 65 came before a Bench of two Judges (Norman and Campbell, JJ.), which was inclined to support the view of the law taken in the Circular Order, and was by them referred to a Full Bench for an authoritative ruling; and the Full Bench (Noeman and Campbell, JJ., doubting) held that where a witness intentionally makes two contradictory statements upon oath, and it is doubtful which of the two statements is false, he may be convicted of the offence of giving false evidence upon an alternative finding. Peacock, C.J., remarked: "I have no doubt that there may be an alternative finding as well in a case in which the evidence proves the commission of one of two offences falling within the same section of the Penal Code, and it is doubtful which of such offences has been proved, as in one in which the evidence proves the commission of an offence falling within one of two sections of the Penal Code, and it is doubtful which of such sections is applicable.