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Criminal Revision No. 550 of 1960, decided on 3rd May 1961.

S. 476‑Preliminary enquiry‑Whether to be held or not depends on facts of each case‑Discretion to be exercised judiciously, not arbitrarily or capriciously.

Didar All v. Abdul Hamid (1954) 7 D L R 299; Puran Chandra v. Sheikh Dhalu 34 C W N 914 and Sarat Chandra v. Hari Charan 51 Cr. L J 45 ref.

S. 439‑A‑Affidavit Deponent to state clearly facts which can be proved from own knowledge and facts believed to be true on reasonable grounds separately‑Affidavit as true to the best of knowledge and belief and information without specifying exact portions, held, to be not in accordance with law and not acceptable‑Charge of perjury on such vague contents, held, misconceived‑‑Plea that objectionable contents based on information bona fide believed to be true Penal Code (XLV of 1860), S. 193.

Emperor v. Lachmi Narain A I R 1947 All. 235 ref.

A. Salam Khan for Petitioners.

B. N. Chowdhury for the State.

It appears that petitioner No.1 Aley Mohammad Akanda along with another was being prosecuted before the Court of Mr. T. U. Khan, Magistrate, 1st Class, Bogra, on a charge, under section 3 of the P. C. E. Act and simultaneously petitioner No. 2 Mohammad Fikiruddin Prodhan, who is his son, also figured as one of the accused in another case pending before the same Magistrate. While these cases were thus pending, the former moved the learned District Magistrate under section 528 of the Code of Criminal Procedure for transfer of the case against him from the file of the above named Magistrate alleging inter alia that one Dr. Hafizur Rahman of Gaibanda, who is a close relation of one, who is interested in the other party and bitterly opposed to the petitioner, had been the family physician of the learned trial Magistrate, while posted at that section i.e., Gaibanda, and that on the last date of hearing of the case against his son and others referred to above, the said Doctor took his seat by the side of the learned trial Magistrate on the dais of his Court and talked to him for about 20 minutes. The allegations were supported by two affidavits, one sworn by petitioner No. 1 and the other by petitioner No. 2. Each of them solemnly subscribed to these as well as the contents of his affidavit being "true to the best of knowledge and belief and information." The learned District Magistrate thereon called for a report from the learned trial Magistrate, who replied that the said Doctor was not his family physician adding that he did "not remember to have seen Doctor Hafizur Rahman within the last 6 months" but said nothing regarding the other allegation, i.e., that the Doctor sat by his side in Court and talked to him for about 2' minutes. So a further report on this point specifically was called for and the learned Magistrate made his comments as follows: --‑

"Reference my previous report dated 26‑9‑59 1 have already reported that I did not see Dr. Hafizur Rahman of Gaibanda for the last six months. So, it is out of the question that he took his seat in dais on 10‑9‑59 and talked with me for about twenty‑two minutes. If he would sit in dais on 10‑9‑59 and talk with me 20 minutes, I would have surely remembered it. These allegations of the petition are denied by me. These are false and baseless."

2. On receipt of this report the learned District Magistrate rejected the application under section 528 of the Code of Criminal Procedure and further observed as follows :‑

" . . . The petitioner has stated in his affidavit that Dr. Hafizur Rahman took his seat by the side of the Magistrate on the dais and talked to him for 20 minutes. This statement is apparently false. So, prosecute him under section 193, P. P. C. for swearing a false statement on affidavit."

3. In due course he followed it up with a formal complaint in writing lodged in the Court of the learned Sub‑Divisional Magistrate and the petitioners have thereupon been prosecuted under section 193 of the Pakistan Penal Code. Against this an appeal was filed under section 476‑B of the Codes of Criminal Procedure before the learned Sessions Judge but that was eventually dismissed by the learned Additional Sessions Judge, Bogra, to whom it had come on transfer for disposal. It is thereafter that the petitioners approached this Court under section 439 read with section 56‑A of the Code of Criminal Procedure and obtained the present Rule, which is directed against the said appellate order, and also for quashing the proceeding under section 193 of the Pakistan Penal Code against the petitioners.

4. Mr. Abdus Salem Khan, Advocate has appeared on behalf of the petitioners and Mr. B: N. Chowdhury, Advocate, has represented the State.

5. The first point taken by Mr. Khan is that in the absence of a preliminary enquiry as to the existence of a prima facie case or the expediency of a complaint in the interest of justice, the action of the learned District Magistrate in lodging the complaint in the present instance cannot be supported as judicious or proper. He concedes, as expressly provided in the relevant section itself, and also as has been held in Didar Ali and others v. Abdul Hamid and another ((1954) 7 D L R 299) and a number of other decisions, that a preliminary enquiry before filing a complaint under section 476 of the Code of Criminal Procedure is not mandatory but contends that it does not follow either from the language of section 476 or from the proposition laid down in these authorities that a complaint lodged under the said section without any preliminary enquiry, even where such inquiry appears in the facts and circumstances of the case to be necessary, is not open to question or interference. On the other hand the unmistakable trend of the reported decisions, according to him, is that even though a preliminary enquiry is not a "must" under the law, it is desirable in general, and may really be necessary in particular cases, to hold such enquiry before making a complaint under the provisions, referred to above. In support of this contention he has cited a number of rulings, of which mention may be made of Sarat Chandra Bhattacharjya v. Hari Charon Dey (51 Cr. L J 45) wherein it has been laid down: --‑

"It is true that under the provisions of section 476 of the Code of Criminal Procedure a preliminary enquiry is not legally necessary. But it has been laid down ever since the enactment of the present section 476, Criminal Procedure Code, that although a preliminary enquiry may not be legally necessary, it should in common precedence be held by every Court before it passes an order under section 476, Criminal Procedure Code."

6. There are of course some cases, of which Purna Chandra Datta v. Shaikh Dhalu (34 C W N 914) is one, in which the learned Judges were not prepared to go as far as the above dictum but in none 3f them even it has been ruled either in so many words or by implication that failure to hold a preliminary enquiry can under no circumstances be regarded as defect. On the other hand even in the case, just referred to, i.e., Purna Chandra Datta v. Shaikh Dhalu, the learned Judges, while laying down in modifica tion of the fore cited dictum Sarat Chandra Bhattacharjya v. Hari Charan Dey that it cannot be rued as general proposition that it is even prudent to do so in every case where the complaint is made by a judicial office.:, who tried the original case or his successor, felt called upon to add as a rider to the above that in a particular case the revising authority may hold that action was too hastily taken so that there should be some further investigation and that each case depends on its own facts Thus the question, it appears to me, is one pending entirely upon the facts and circumstances of each case and the discretion vested under the expression "after such preliminary, if any, as it thinks necessary" occurring in section 476, has to be exercised on a proper application of the judicial mind and not arbitrarily or capriciously.

7. Now in the present instance the two petitioners made the offending allegations on oath and the learned trial Magistrate, when called upon to report, said that Dr. Hafizur Rahman was known to him but was not his family physician though during his stay at Gaibanda for more than 5 years he "remembered to have consulted him on one or two occasions". Thereafter he disposed of the rest of the allegations by a general statement saying "I do not remember to have seen Doctor Hafizur Rahman within the last 6 months". The learned District Magistrate rightly considered this explanation as vague and unsatisfactory and it is only when thereupon he called for a further specific report that the learned trial Magistrate commented that since he had already reported that he did not see (to his recollection, it may be noted) the Doctor for the last 6 months, it was out of the question that he sat with him (Magistrate) in Court or talked to him. Adding thereafter that if he (Doctor) would sit in dais on 10‑9‑59 and talk with him for 20 minutes he would have surely remembered it, he denied "the allegations" which he also characterized as false and baseless. Thus the denial of the learned Magistrate on both the occasions was qualified, having in effect been made to the best of recollection, and not categorical and positive, while the allegations made by the petitioners were supported by their respective oaths. This being the state of affairs, the case was pre‑eminently one in which a preliminary enquiry ought to have been made before launching a prosecution under section 476 of the Code of Criminal Procedure.

8. Again both the affidavits were written in English and one of the deponents, i.e., the son, at any rate, I am informed, does not know English. From the manner in which he appears to have just scribbled his signature it is doubtful whether even the other does. But affidavits contain to endorsement, as required under the rules, and in the absence of a preliminary enquiry there is no evidence either, to show that the affidavit of either was read over and explained to him or that he subscribed to it having understood its contents. Obviously this was yet another ground calling for a preliminary enquiry for the purpose of being satisfied prima facie that the impugned affidavits actually answered the requirements, indicated above. In support of this view, reference may be made to Mathura Prasad v. Emperor (18 Cr. L J 883). Therein an affidavit written in English was purported to be signed by the deponent in Urdu and there was no endorsement nor any evidence that it was read over or explained to him. Upon a complaint made under section 476, Criminal Procedure Code, but without any preliminary enquiry for prosecution of the deponent under section 193 of the Penal Code, he moved the High Court in revision and the High Court in allowing his application held that "the case was one in which a preliminary enquiry should have been made before an order was passed under section 476 of the Criminal Procedure Code". The cases cited on the other side, to Wit Emperor v. Jagat Ram (A I R 1919 Lah. 348) and Muhammed Farooq v. Rex (A I R 1950 All. 501) do not appear to be to the point. In each of these cases the impugned evidence, whereon the indictment was founded, was actually given by the accused himself and the only draw‑back it apparently suffered from was the absence of any endorsement showing that it was read over to him. In the present instance on the other hand it is uncertain, for the reasons already discussed above, whether the petitioners or at least one of them swore to the affidavit or affidavits knowing and understanding the contents, and can thus be regarded to have in law made the offending statements, and the question arising for consideration there from is whether the Court concerned before making the complaint ought to have by a preliminary enquiry satisfied itself prima facie that the petitioners made the affidavits with due knowledge and under standing of the contents thereof.

9. Mr. B. N. Chowdhury has however candidly conceded that in the facts and circumstances of this case he finds it difficult to dispute that a preliminary enquiry ought to have been held before making the complaint under section 476 of the Code of Criminal Procedure. He has at the same time strenuously contended that absence of a preliminary enquiry, even though an impropriety necessitating such investigations, is not a sufficient ground for quashing the proceeding. I am prepared to agree with him in this behalf but that does not conclude the matter in that the proceeding has been attacked on yet another ground, which appears to me to be conclusive. I would now proceed to consider the said ground.

10. Under the law, as embodied in section 539‑A of the Code of Criminal Procedure, affidavits in proof of conduct of public servants shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable grounds to believe to be true, and, in the latter case, the deponent shall clearly state the grounds of such belief. The deponent is further required under the rules to specify how much of the contents in a statement of his knowledge and how much thereof is based on his information and belief and, in respect of matters based on information and belief, also to state with sufficient particularity the source or ground of the informa tion or belief. This is really a requirement of ordinary prudence dictated by practical considerations as otherwise an unscrupulous person can in an affidavit swear to any baseless fact with impunity and avoid its legal consequences because of the vagueness of the certificate appended thereto. Now in the impugned affidavits in the present case before me the declaration made on solemn affirmation by each of the deponents is that the statements embodied in the affidavit is true to the best of his "knowledge and belief and information" without specifying the exact portions true to his "knowledge or information or belief". Such an affidavit is really no affidavit in accordance with the law and should not have been accepted by the learned Magistrate before whom it was sworn nor acted upon by the learned District Magistrate before whom it was presented. In any case it cannot be a sound or tenable basis for prosecution for the simple reason that nothing can be definitely pinned down to the deponent's knowledge and he will thus have wide scope to make a successful escape through the convenient loopholes of information and belief. This view receives support from the case of Emperor v. Lachmi Narain (A I R 1947 All. 235), wherein it has been held:

"Where a person swears an affidavit, all the paragraphs of which he certifies on his personal knowledge and belief' but there is no specification as to which of the paragraphs are based on personal knowledge, and which on belief, it is open to him to contend that the mischievous paragraphs are based; not on his personal knowledge, but on belief."

11. In reply to this Mr. Chowdhury tried to contend that one may be guilty of making a false statement and convicted therefore even if the subject‑matter of the affidavit is certified as being true to his "knowledge and belief" and relied in support of his contention upon Queen v. Echan Meah and others (2 W R 47). It is no doubt true that in that case even those who made the false statements having, in all probability, no knowledge, whatever, on the subject, were also held to have committed the offence of giving false evidence but the basis of that view, as has in fact been expressly stated, was that "they could not have believed what they deposed to be true". This authority, therefore, does not at all help Mr. Chowdhury. On the other hand it would appear to follow clearly there from that a charge of perjury would be misconceived in a case where the offending statement is based on "belief" and it cannot be shown that the deponent either believed the statement to be false or could not have believed it to be true. To my mind each of the petitioners in the present instance can successfully raise a plea in his defence that the mischievous subject‑matter was based on his information, which, even though not founded on fact or truth, he bona fide believed to be true. The question whether they had good ground or reasons for such belief appears to be irrelevant. As the Privy Council has laid down: --‑

"It should be unnecessary to point out that a man may make a statement in the belief that it is true though good reasons exist for knowing it to be false, for, unfortunately man's beliefs are not always influenced by good reasons."

12. The conclusions I am thus led to arrive at are that it could not be shown even prima facie that the petitioners made deliberately false statements in their respective affidavits, and that the proceeding initiated against them, even apart from the impropriety attaching to its initiation, is not likely to serve any useful purpose at all.

In the result, the Rule is made absolute. The complaint made against the petitioners is withdrawn and the proceeding started thereon under section 193 of the Pakistan Penal Code is quashed.

S. B.

Rule made absolute.

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