Full Judgment
Ryves, J.
1. Abdul Wahid Khan was involved in an enquiry under Section 133 of the Criminal Procedure Code in the Court of a Magistrate, Chaudhri Girwar Singh. Owing to that Magistrate going on short leave the case was transferred to another Magistrate who took it up on the 10th November 1922. On the 13th November Abdul Wahid Khan applied to the District Magistrate to transfer the case to some other Magistrate or back again to the original Magistrate as he was returning very shortly, for reasons stated in the affidavit attached to the petition. On the same date the District Magistrate passed the order:
The case is sent back to Chaudhri Girwar Singh for trial.
2. It appears that on the 15th November the Magistrate concerned sent to the District Magistrate his explanation of the affidavit filed by Abdul Wahid Khan, On the 17th November the District Magistrate after asking petitioner why he should not be prosecuted for making a false statement in an affidavit passed the following order:
Abdul Wahid Khan has made a number of allegations against Mr. Zahir Uddin which appear from the explanation of the Magistrate to be entirely false. This sort of allegation against the impartiality of Magistrates is unfortunately all too common and I am of opinion prima facie that this is a particularly blatant case in which allegations have been made recklessly and falsely. I, therefore, sanction the prosecution of Abdul Wahid Khan under Section 199 of the Indian Penal Code. The case will go to Babu Gopi Behari Sahai for trial.
3. It seems to me obvious that this order was meant to be one under Section 476. As such it is bad in law, inasmuch as there are no assignments of perjury. The accused is entitled to know the exact words which are alleged to have been used by him and which are sought to be made the subject of the charge under Section 199. I might and ordinarily would have simply set the order aside leaving it open to the Magistrate to rectify his order if so advised, but in the exception A circumstances of this case, in order to save public time and money, I have examined both the affidavit and the Magistrate's explanation. These were the materials on which presumably the District Magistrate acted, and I have come to the conclusion that a prosecution for perjury under the circumstances of this case must be infructuous. That I have power to do so is clear from Chadha v. Emperor 36 Ind. Cas. 878 : 14 A.L.J. 851 : 18 Cr.L.J. 46 and the case therein relied on. See also Mathura Prasad v. Emperor 41 Ind. Cas. 995 : 15 A.L.J. 517 : 18 Cr.L.J 883 and Ram Sahai v. Emperor 55 Ind. Cas. 1008 : 18 A.L.J. 381 : 2 U.P.L.R. (A) 1145 : 21 Cr.L.J. 400. I think the District Magistrate would have been well-advised not to have accepted so vaguely worded and argumentative an affidavit. I am inclined to think that he has really acted not so much on the affidavit but on the petition which accompanied it.
4. The only statement of pure fact in the affidavit was that contained in the first paragraph but that is not denied by the Magistrate. The second paragraph runs as follows:
So far as I have come to know the aforesaid Deputy Magistrate takes for trail very few of the cases out of the file of the cases sent from the Court of Chaudhri Girwar Singh and generally postpones the cases, but this case was taken up for trial on the first date, I think simply to show partiality to the complainant.
5. The Magistrate's explanation of this paragraph is based on an inaccuracy. He says it is untrue to say that this was the only case which was taken up for trial and that this was done in order to show partiality to the complainant. The affidavit does not say that this was the only case and in any event it would be impossible to prove that the paragraph as sworn to in the affidavit was false to the knowledge of the petitioner. The remainder of the affidavit refers to the procedure adopted by the Magistrate which is alleged to be wrong in the opinion of the petitioner. It seems to me quite impossible to bring home a charge of perjury against the petitioner on the affidavit I, therefore, set aside the order and quash further proceedings in the case. Let the record be returned.