Ram Singh vs Mam Chand

C.G. Suri, J.—A private complaint filed against Mam Chand respondent accusing him of having sworn and made use of false declarations with regard to the age of his minor son at the time of his admission to a school and for having thereby committed the offences defined in sections 199 and 200 of the Indian Penal Code has been dismissed by the Judicial Magistrate 1st Class at Panipat and the respondent has been acquitted of the charges. Ram Singh complainant, who is the Headmaster of the school in which the minor son of the accused-respondent was last studying, has filed an appeal u/s 417(3) of the Code of Criminal Procedure, against the order of acquittal.

The respondent''s son Sewa Singh, was admitted to the Government Primary School in village Simla Maulana, Tehsil Panipat, on 12th February 1955. His date of birth was given as 28th October 1947, at the tine. He left that school on 31st March, 1962 after passing the 5th class and a school-leaving certificate was issued to him by the complainant.

It had been alleged that the accused-respondent had asked the complaisant (now appellant) at the time of his son''s discharge from that school that the date of birth may be shown as 28th October 1950, instead of 28th October 1947. The complainant had declined to oblige and the accused-respondent had made false reports against the complainant''s wife who was also in service in the same department. This had led to the transfers of the complainant and his wife.

After some time the complainant came to know that in May 1962 the accused-respondent had got his son admitted to the Arya Higher Secondary School at Panipat and had filed a false affidavit in which he had wrongly stated that his son had been studying privately and that his date of birth was 28th October, 1950. The affidavit had been duly attested by an Oath Commissioner at Panipat. It was alleged that offences under sections 199 and 200, Indian Penal Code, had been committed by the accused-respondent and that he should be convicted and sentenced for these offences.

The learned trial Magistrate has come to the finding that there were two deliberate misstatements knowingly made in the affidavit filed by the accused-respondent at the time of his son''s admission to the Arya Higher Secondary School. No offence was, however, found to have been committed and the accused-respondent was acquitted with the following observations:-

The only argument advanced by the Learned Counsel for the accused before me was that before the accused could be convicted u/s 199 I.P.C. it had to be established that any court of justice or any public servant or other person was bound or authorised by law to receive this declaration as evidence of any fact. He asserted that no evidence had been brought on record that this affidavit was admissible as evidence of any fact or that any court of justice or any public servant or other person was bound or authorised by law to receive this declaration as evidence of any fact. The counsel for the accused cited 28 IC 645 in support of his contention.

Now this legal position cannot be disputed that a person cannot be convicted u/s 199 I.P.C. merely because he had made a false declaration. Before a person could be convicted for making a false declaration it had to be established that the declaration was admissible as evidence of any fact. I am strengthened in my view by the following facts:-

There is a provision in Order XIX, CPC for the swearing of an affidavit for certain purposes. If such a declaration is found false then the declarant can be prosecuted and punished u/s 199, I.P.C. because such a declaration has been made admissible as evidence of the facts stated therein by the provisions of Order XIX of the Civil Procedure Code. But there is no corresponding provision in the Criminal Procedure Code and thus a person filing a false affidavit or declaration in a criminal court cannot be convicted u/s 199 I.P.C. as that court is not authorised by law to receive it as evidence. Before a declaration could be made the foundation of a prosecution under this section, there must be some law under which the declaration must be at least admissible in evidence. The counsel for the complainant has failed to establish that this affidavit of the accused was admissible as evidence of the facts stated therein and that any court of justice or public servant or any other person was bound or authorised by law to receive it as evidence of any fact. In view of this I am of the view that the accused cannot be convicted u/s 199 I.P.C. despite the fact that he had sworn a false affidavit before an Oath Commissioner.

Since section 199 I.P.C. is not attracted, the accused can also not be convicted u/s 200 I.P.C. because this section makes punishable corrupt use of a declaration specified in section 199 I.P.C.

Shri Anand, the Learned Counsel for the appellant, had argued that the Headmaster is a public servant or other person who is bound or authorised by law to receive, as evidence of age of the students seeking admission to a school, declarations made by the parents or guardians of such students. His contention is that the legal authority of the Headmaster arose from paragraph 211 contained in the Punjab Education Code. There is nothing to indicate however that this Code was framed in execise of the powers conferred by any law or that a Headmaster''s authority under the administrative instructions contained in this Code is an authority or obligation conferred or imposed on him by any law.

The learned trial Magistrate had relied on Emperor v. Rajappa Ramappa Kalal 28 IC 645 : 16 Cr. LJR 309. In that case a false declaration made to a Mamlatdar in the hope of obtaining a certificate of solvency for the purpose of securing a licence from the Abkari officials was not considered to be a declaration which a court of justice or any public servant or any person bound by law or authorised by law could receive within the meaning of section 199 or section 200 of the Indian Penal Code. A similar view may appear to have been taken by a Division Bench of the Assam High Court in U. Mistir Wallang Nongesh v. Ka Ephreban Wallang Nongesh 1954 Cri. LJ 1888. In that case the Deputy Commissioner had in the course of some miscellaneous proceedings called upon a person to file a statement containing a list of the property of his deceased employer which was supposed to be in his possession. It was held that in order to attract the applicability of Section 193, Indian Penal Code, to the case, it was necessary to show that the list supplied by the accused amounted to a declaration which he was bound by law to make and that so long as the condition was not satisfied a charge u/s 193 could not succeed. In Public Prosecutor Vs. P.C. Raju and Others, , the accused had made false declaration with a view to facilitate the commission of an offence under the Imports and Exports (Control) Act, 1947, and it was held that as the false declarations were not such as could be received as evidence of facts before any Court or public servant, no offence u/s 193 or section 199. Indian Penal Code, had been committed. The case of Ranjit Singh Vs. The State of Punjab, , is not strictly applicable because the misstatement had been made in that case on oath in a court of law.

The Oath Commissioner, before whom the affidavit had been sworn by the accused-respondent in the present case, had been appointed u/s 139(b) of the Code of Civil Procedure. The appointment was for the purpose of swearing of affidavits under that Code, and the same had been made in exercise of the powers vested in the High Court by section 139(b). The Oath Commissioner may seem to have been functioning beyond the authority conferred on him by the notification appointing him when he was administering the oath to the deponent and attesting an affidavit for the purpose of being filed before the Headmaster of any School. Shri Anand has then relied on section 14 of the Indian Oaths Act, 1873, but the respondent was not giving evidence before any Court and the Oath Commissioner was not a person authorised under this Act to administer oaths and affirmations so as to bind the deponent to state the truth on any subject. Authority to administer oaths and affirmations can be conferred u/s 4 of the Indian Oaths Act, but there is nothing on record to suggest that the Oath Commissioner, who had sworn the affidavit of the respondent with regard to the age of his son, had been duly authorised under that section to administer oaths and affirmations so as to bring in the application of Section 14 of that Act. The offence of giving false evidence made punishable by the second part of section 193, Indian Penal Code can be committed only by a person who is legally bound by an oath, or by an express provision of law to state the truth, or who being bound by law to make a declaration upon any subject makes a statement which is false. The respondent''s case is not brought squarely within the four corners of any statutory provision defining an offence, and, therefore, no criminal charge had been brought home to him.

The respondent''s acquittal was, therefore, fully justified, and the appeal is dismissed.

Ranjit Singh Sarkaria, J.

I agree.