Ranjit Singh Vs. The State of Punjab
[1959] INSC 42 (21 April 1959)
KAPUR, J.L.
IMAM, SYED JAFFER
CITATION: 1959 AIR 843 1959 SCR Supl. (2) 727
ACT:
Criminal Trial-Perjury-False statement in
affidavit-Affidavit affirmed to the best of knowledge and belief-No obligation
to file affidavit-Offence, if made out-Indian Penal Code, 1860 (XLV of 1860),
ss. 191 and 193.
HEADNOTE:
A habeas corpus application was made to the
High Court alleging that one S had been illegally arrested and kept in unlawful
custody without any charge being made against him and without obtaining remand
from a Magistrate. By way of a return the appellant, a sub-Inspector of Police,
filed a false affidavit controverting the allegations made in the application.
He was prosecuted and convicted under s. 193, Indian Penal Code. The appellant
challenged his conviction on the grounds that: (i) as he was not bound under
the law to file an affidavit, the case did not fall under s. 191 of the Indian
Penal Code and he could not be convicted under s. 193 ; and (ii) the affidavit
having been affirmed as true to the best of the knowledge and belief of the
appellant it could not be said which part was true to his knowledge and which
to his belief.
Held that, the appellant was rightly
convicted. It was not necessary for the application of s. 191 of the Indian
Penal Code that the accused should be bound under the law to make an affidavit.
If he chose to me one and bound himself on oath to state the truth he was
liable under s. 193 Of the Code if e made a false statement and it was no
defence to say that he was not bound to enter the witness-box or make an
affidavit. In the present case it was necessary for the appellant to file an
affidavit as he was bound to place the facts and circumstances justifying 728
the detention which could only be done by an affidavit.
Ordinarily, where the detention is under
orders of the detaining authority in exercise of his plenary powers or of a
Court an affidavit may not be necessary in making the return but where it
becomes necessary for the detaining authority to justify its action by
disclosing facts it has to file an affidavit.
Held, further, that explanation 2 to S. 191
of the Code brings a false statement affirmed to the belief of the accused also
within the mischief of s. 191 and thus makes it punishable under s. 193 of the
Code.
Emperor v. Lachmi Narain, I. L. R. 1947 All.
155, disapproved.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 19 of 1957.
Appeal by special leave from the judgment and
order dated March 7, 1956, of the former PEPSU High Court in Criminal Revision
No. 45 of 1956, arising out of the judgment and order dated February 22, 1956, of the Additional Sessions Judge, Patiala, in Criminal Appeal No. 175/36 of 1955-56.
Pritam Singh Safe&, for the appellant.
N. S. Bindra and T. M. Sen, for the
respondent.
1959. April 21. The Judgment of the Court was
delivered,by KAPUR, J.-This is an appeal by special leave against the judgment
and order of the High Court of PEPSU passed in revision'. The appellant was a
sub-Inspector of Police who at the relevant time was the Station House Officer
in-charge Shehna police station in the erstwhile PEPSU State. He was convicted
under s. 193, Indian Penal Code, by a First Class Magistrate and his appeal to
the Sessions Judge, Patiala, was dismissed except as to sentence. He took a
revision to the PEPSU High Court but that was also dismissed.
This appeal has arisen in the following
circumstances: One Surjit Singh, s/o Risaldar Waryam Singh, was arrested on September 25, 1953, at Barnala in PEPSU State by the Police Inspector Jaswant Singh. He
was kept in the lock-up at Barnala and on the following day his custody was
handed over to the appellant and he was taken to Shehna and was kept in
custody-it 729 is not clear under what section-in the police station lockup at
Shehna. Surjit Singh was there kept in custody from September 26, 1953, till
October 10, 1953, when at about 10 p.m., he was surreptitiously removed to
Police Station Dialpur and then to Police Post Hamirgarh and from there was
taken to Police Station Baga Purana in Ferozepur District, of the then Punjab.
An application under s. 491 of the Criminal Procedure Code and under Art. 226
of the Constitution was made for a writ of Habeas Corpus and Mandamus in the
High Court of PEPSU. In that petition it was alleged that Surjit Singh was
being kept in unlawful custody without any charge being made and without
obtaining a remand by a Magistrate. In reply to this, an affidavit dated October
13, 1953, was filed by the appellant in which he stated that Surjit Singh had
association with notorious dacoits; that he, the appellant, had never taken him
into custody at any time; that the said Surjit Singh was absconding and had not
been arrested in spite of the best efforts of the police; that at the time of
the making of the affidavit he was not in the appellant's custody and that it
was incorrect that Inspector Jaswant Singh had ever entrusted Surjit Singh to
his (appellant's) custody. He also stated that no petition had been brought to
him nor had he received any telegram in connection with the custody of Surjit
Singh. This affidavit was affirmed as follows:" I solemnly affirm that the
facts stated from paras Nos. I to 7 are true to the best of my knowledge and
belief and nothing which is relevant to this case has been kept back from this
Hon'ble Court ".
As both the parties admitted before the High
Court that Surjit Singh was not in the custody of the appellant the petition
was dismissed. On November 9, 1953, the brother of Surjit Singh made an
application under s. 476, Criminal Procedure Code, for the prosecution of
Inspector Jaswant Singh and the appellant for perjury under s. 193, Indian
Penal Code, in that they had filed false affidavits. This matter was heard by
another learned Judge of that Court who ordered the 92 730 prosecution of the
appellant and directed the Registrar of the High Court to file a complaint
which was filed.
The complaint was taken cognizance of by the
First Class Magistrate at Patiala who convicted the appellant and sentenced him
to nine months' imprisonment and a fine of Rs. 300/and in default to undergo
simple imprisonment for two months. The appellant took an appeal to the
Sessions Judge, Patiala, who confirmed the order of conviction but reduced the
sentence to one of three months' simple imprisonment and a fine of Rs. 50 and
in default one month's simple imprisonment, a revision against this order was
dismissed in limine by the Chief Justice although he gave reasons for
dismissing it. The appellant then obtained special leave from this Court.
On behalf of the appellant the first
contention raised was that the appellant was not bound to file an affidavit and
therefore he could not be convicted under s. 193, Indian Penal Code, because
his case did not fall under s. 191, Indian Penal Code. In support of his
contention he relied upon the Rules of the PEPSU High Court framed for the
purpose of proceedings under Art. 226 and s. 491(2), Criminal Procedure Code,
for the issuing of writs of Habeas Corpus. He also referred to the Rules made
by that Court for the issuing of writs of Mandamus, Prohibition, Quo Warranto
and Certiorari under Art. 226 and submitted that there was no Rule in the
former, i.e., for writ of Habeas Corpus requiring a return to be made on behalf
of the respondent to be sup-ported by an affidavit whereas in the latter, i.e.,
issuing of writs of Mandamus etc. an affidavit was necessary and therefore it
was submitted that s. 191 was inapplicable. Rule 2 of the Rules of the Court
required that when a Judge was of the opinion that prima facie case had been
made out for granting the application a rule nisi was to issue calling upon the
person or persons against whom the order was sought, to appear before the Court
and to show cause why such an order should not be made. As has been pointed out
in Greene v. Home Secretary (1) which was a case under Reg. 18-B of the Defence
of the (1) [1942] A.C. 284, 302.
731 Realm Act the whole object of proceedings
for a writ of Habeas Corpus is to make them expeditious, to keep them as free
from technicality as possible and to keep them as simple as possible. "
The incalculable value of Habeas Corpus is that it enables the immediate
determination of the right to the appellant's freedom " (Lord Wright).
When there is no question of fact to be examined or determined no affidavit is
needed. As soon as there emerges a fact into which the Court feels it should
enquire the necessity for an affidavit arises. Ordinarily an affidavit may not
be necessary in making the return if the detention is under orders of the
detaining authority in exercise of its plenary discretion as in Liversidge v.
Anderson (1) and in Greene's case (2) or a person is detained under the orders
of a Court. But where the detention is, as it was in the present case, it
becomes necessary for the detaining authority to justify its action by
disclosing facts which would show to the satisfaction of the Court that the
custody is not improper. Where the prisoner says " I do not know why I
have been detained, I have done no wrong ", it is for the detaining
authority to justify the custody. When issues of fact are raised and the
actions of the police officers, as in the present case, are expressly challenged
and facts are set out which if unrebutted and unexplained would be sufficient
for the writ to issue, an affidavit becomes necessary. It cannot be said
therefore that in the present case the appellant was not legally bound to place
facts and circumstances before the Court to justify the detention of Surjit
Singh and, this could be done by an affidavit.
Section 4 of the Oaths Act lays down the
authority to administer oaths and affirmations and it prescribes the courts and
persons authorised to administer by themselves or by their officers empowered
in that behalf oaths and affirmations in discharge of the duties or in exercise
of the powers imposed upon them and they are, all courts and persons having by
law the authority to receive evidence.
Section 5 prescribes the persons by whom
oaths or affirmations must be (1) [1942] A.C. 206.
(2) [1942] A.C. 284, 302.
732 made and they include all witnesses, i.
e., all persons who' may lawfully be required to give evidence by or before any
court. These two sections show that the High Court or its officers were
authorised to administer the oath and as the appellant was stating facts as
evidence before the High Court he had to make the oath or affirmation and was
bound to state the truth. Section 14 of that Act is in the following words:
S. 14. Every person giving evidence on any
subject before any Court or person hereby authorised to administer oaths and
affirmations shall be bound to state the truth on such subject ".
As the appellant was giving evidence on his
own behalf in that he was denying the allegation made in the affidavit of the
brother of Surjit Singh he was bound to state the truth on the subject on which
he was making the statement. The contention therefore that under s. 191 of the
Indian Penal Code the relevant portion of which is:
S. 191. " Whoever being legally bound by
an oath or by an express provision of law to state the truth ......... makes
any statement which is false and which he either knows or believes to be false
or does not believe to be true, is said to give-false evidence " the
appellant was not legally bound by oath to state the truth cannot be supported.
On the other hand at the stage of the proceedings in the High Court where it
was being alleged that Surjit Singh was being detained by the appellant
illegally it was necessary for the appellant to make an affidavit in making a
return and therefore if the statement is false, as it has been found to be,
then he has committed an offence under s. 193.
The opening words of s. 191 whoever being
legally bound by an oath or by an express provision of law to state the
truth............ do not support the submission that a man, who is not bound
under the law to make an affidavit, can, if he does make one, deliberately
refrain from stating truthfully the facts which are within his knowledge,. The
meaning of these words is that whenever in a court of law a person binds
himself on oath to state the truth he is bound to state the 733 truth and he
cannot be heard to say that he should not have gone into the witness-box or
should not have made an affidavit and therefore the submission that any false
statement which he had made after taking the oath is not covered by the words
of s. 191, India Penal Code, is not supportable. Whenever a man makes a
statement in court on oath he is bound to state the truth and if he does not,
he makes himself liable under the provisions of s. 193. It is no defence to say
that he was not bound to enter the witness-box. A defendant or even a plaintiff
is not bound to go into the witness-box but if either of them chooses to do so
he cannot, after he has taken the oath to make a truthful statement, state
anything which is false. Indeed the very sanctity of the oath re-quires that a
person put on oath must state the truth. In our opinion this contention is
wholly devoid of force and must be repelled.
It was then contended that the officer before
whom the appellant swore the affidavit, i. e., the Deputy Registrar of the High
Court of PEPSU was not authorised to administer oaths. That officer as a
witness for the prosecution has stated that he could administer an oath and
therefore this contention of the appellant is also without any force and must
be repelled.
It was also argued that the affidavit filed
by the appellant was affirmed as being true to the best of knowledge and belief
and therefore it could not be said as to which part was true to the appellant's
knowledge and which to his belief. We have read the affidavit which consists of
7 paragraphs and each paragraph relates to affirmation of a fact which, if
true, could only be so to the appellant's knowledge. But even belief would fall
under Explanation 2 to s. 191 which is as under:
Explanation 2 to s. 191. " A false
statement as to the belief of the person attesting is within the meaning of
this section, and a person may be guilty of giving false evidence by stating
that he believes a thing which he does not believe, as well as by stating that
he knows a thing which he does not know 734 The appellant relied upon a
judgment of the Allahabad High Court in Emperor v. Lachmi Narain (1). But
unless there was something peculiar in the facts of that case it cannot be
considered to be good law. It does not even take into consideration Explanation
2 of S. 191.
Lastly it was urged that the procedure
adopted by the Magistrate was erroneous in that he did not hold an enquiry as
required under ss. 200 and 202, Criminal Procedure Code, the former of which is
expressly mentioned in sub-section 2 of s. 476, Criminal Procedure Code. That
contention is equally untenable because under s. 200, proviso (aa) it is not
necessary for a Magistrate when a complaint is made by a court to examine the
complainant and neither s. 200 nor s. 202 requires a preliminary enquiry before
the Magistrate can assume jurisdiction to issue process against the person
complained against.
In our opinion the appellant has been rightly
convicted and we would therefore dismiss this appeal.
Appeal dismissed.
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