Nalluri Chenchiah and Others vs King Emperor

Sadasiva Ayyar, J.—The Petitioners in revision are the four accused in Preliminary Register Case No. 4 of 1918 on the file of the Stationary

Second-class Magistrate, Ongole. An inquiry for the purpose of commitment or discharge, as the case may be, was made in this case by the said

Stationary Second-class Magistrate, the complaint against the first accused being under two Sections 471 and 193, Indian Penal Code, and

against the other accused u/s 193, Indian Penal Code, alone. The charge u/s 193 relates to the depositions, exhibits K, L, M and N given by the

four accused before the District Munsif of Ongole in Original Suit No. 47 of 1912 were to the effect that the complainant executed a promissory

note for Rs. 500 in favour of the first accused''s father. The Stationary Sub-Magistrate discharged all the accused u/s 209, Code of Criminal

Procedure. He considered that exhibits K, L, M and N were not admissible in evidence as the legally correct record of the statements given by the

accused in the Ongole District Munsif''s Court''s suit, because it appeared from the evidence of the trial clerk of the District Munsif''s Court,

prosecution witness 3, that the depositions after they were completed were not interpreted and read over to the witnesses as required by Order

XVIII, Rules 5 and 6, of the Code of Civil Procedure. He also held that the statements could not be proved by any other evidence except these

records (exhibits K, L, M and N), u/s 91 of the Indian Evidence Act. This is the ground on which the Stationary Sub-Magistrate based the

discharge of the accused so far as the offence u/s 193, Indian Penal Code, was concerned. As regards the offence u/s 471, Indian Penal Code,

against the first accused alone, the Magistrate''s reasons are not quite clear except that the depositions (exhibits K, L, M and N) cannot be used to

connect the first accused with the forged document (exhibit A).

Against the order of discharge, a petition under Sections 435 and 437 of the Code of Criminal Procedure seems to have been presented to the

Sessions Judge and the learned Judge set aside the order of discharge and passed an order containing two directions, the first being that the case

against the first accused should be committed to the Sessions Court by the Sub-Magistrate in order that the first accused may be tried for the

offences under Sections 471 and 193, Indian Penal Code, and the second direction being that, as regards the accused Nos. 2, 3 and 4, the District

Magistrate of Guntur should direct either the Joint Magistrate of Ongole or any other Magistrate he thinks fit to make a further inquiry into the

complaints against these persons and try them as separate cases and dispose of them according to law. I must say that the learned Sessions

Judge''s first direction out of the two directions found in his order is not warranted by the powers exercisable by him under the provisions of

Section 435 or Section 436 of the Code of Criminal Procedure. The offence u/s 193, Indian Penal Code, is not exclusively triable by the Court of

Sessions. The offence u/s 471, Indian Penal Code, is also not exclusively triable by the Court of Sessions unless the forged document is a

promissory note of the Government of India. The Code of Criminal Procedure (Section 435) gives the Sessions Judge power only to call for and

examine records. Section 436 gives him power to order commitment only when the offence is exclusively triable by the Sessions Court. The

Sessions Judge''s order therefore directing the first accused to be committed to his Court is illegal and must be set aside. As regards the charge u/s

193, Indian Penal Code, against all the accused, there is a case not officially reported but mentioned in Meango v. Baviah (1918) 45 I.C. 507

which goes to the length of holding that even serious irregularities in making the record of the depositions of witnesses do not render that record

inadmissible in evidence to prove the statement so recorded and only go in mitigation of the weight to be attached to that record as accurate. I am

not prepared to agree to that extent. Where a deposition after it has been completed has been interpreted and read over to a witness and

acknowledged by him to be correct, any irregularity due to the omission of the observances of further formalities, such as the presence of the Judge

and his listening to the reading during the time when the deposition is interpreted and read over to the witness, may not affect the admissibility of the

record as evidence of the witness''s statement see Bogra v. Emperor I.L.R (1912) Mad. 141; but the omission to interpret and read over the

deposition to the witness after the deposition is completed cannot in my opinion be put on the same footing, because the guarantee provided by the

law for the accuracy of the deposition has been substantially ignored, and it is dangerous and against public policy to make a witness liable on such

a wholly unsafe record. I would therefore set aside the Sessions Judge''s order so far as it directs the District Magistrate to make further inquiry in

respect of the charge u/s 193, Indian Penal Code.

I may add that the Sessions Judge fell into another error in holding that the Sub-Magistrate contravened the provisions of Section 239 of the

Code of Criminal Procedure in inquiring into the cases of these four accused jointly, Section 239 prohibiting only a joint trial and not a joint

preliminary inquiry into a case for the purpose of commitment to the sessions. Though the Sessions Judge''s order as against the first accused must

be set aside as illegal, I think that this is a case in which the powers of this Court u/s 439, Code of Criminal Procedure, might properly be utilized in

passing the necessary order in connexion with the alleged forgery of the promissory note for Rs. 500 in the interests of justice. There was some

evidence before the Sub-Magistrate that the first accused did use the document as genuine in a Court of Justice and that the document is a forgery.

The proper coarse for the Sub-Magistrate under those circumstances was to have committed the first accused to the Sessions Court as regards the

offence u/s 471. I would therefore direct him to do so.

Napier, J.

I agree I would add that I am strongly influenced in the view I take as to the admissibility of the exhibits K, L, M and N, which have clearly been

recorded in an irregular manner, by the provisions of Section 91 of the Evidence Act which seem to lay down that the deposition is the only

evidence admissible of the statements alleged to have been made by the witness. The words are

In all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of such matter

except the document itself or secondary evidence of it.

It seems to me that where the legislature has imposed such narrow limits on methods of proof, we should be careful to see that this sole proof is

forthcoming in a form which is free from suspicion, and I entirely agree with my learned brother that where the ground of the attack goes to the

knowledge of the witness as to what has been recorded as his statement, we have not got that certainty of accuracy which the law must require u/s

91 of the Evidence Act. I agree with the order proposed by my learned brother.