Full Judgment
Lodge, J.
1. This Rule was issued upon the District Magistrate of Noakhali to show cause why convictions and sentences passed under Sections 193 and 199, Penal Code, should not be set aside. The material facts are as follows: The petitioner was accused of an offence in a complaint made before the Raipur Union Bench. The Bench issued a summons for the appearance of the petitioner. Thereafter the petitioner moved the Sub-divisional Magistrate for a transfer of the case from the file of the Union Bench. A question arose before the Sub-divisional Officer whether the petitioner had or had not appeared before the Union Bench in answer to the summons. A report was received from the Union Bench that the petitioner had not appeared before the Bench either on 8th July or on 12th July 1942. The petitioner stated before the Sub-divisional Officer that he had appeared before the Union bench on those days. The Sub-divisional Officer thereupon directed the petitioner to file an affidavit to the effect that he had appeared before the Union Bench on those dates. Accordingly an affidavit was sworn before a First Class Magistrate by the petitioner to the effect that he had appeared before the Union Bench on 8th July 1942 and on 12th July 1942. The Sub-divisional Officer made an inquiry and came to the conclusion that the statements in the affidavit filed by the petitioner were false. He accordingly directed the prosecution of the petitioner under Sections193 and 199, Penal Code. The petitioner was placed on his trial before a Magistrate, First Class, Noakhali, was found guilty and was sentenced under Sections 198 and 193/199, Penal Code, to detention until the rising of the Court and to a fine of Rs. 200, in default of payment of fine he was directed to suffer rigorous imprisonment for six months only. An appeal from the conviction and sentence was dismissed by the Sessions Judge of Noakhali.
2. In our opinion, this Rule must be made absolute. In the first place, the affidavit was sworn before a First Class Magistrate who had no jurisdiction to take evidence in this particular matter. The First Class Magistrate had, therefore, no authority under Section 4, Oaths Act, to administer an oath in the matter. Further, the petitioner was the accused in criminal proceedings which were the subject-matter of the proceedings before the Sub-divisional Officer. Under Section 5, Oaths Act, there is no authority to administer an oath to an accused in a criminal proceeding. For this reason also no oath ought to have been administered to this accused. Such being the case, the petitioner ought not to have been prosecuted for making a false statement on oath and ought not to have been convicted therefor. The Rule is accordingly made absolute. The conviction and sentence are set aside and the accused is acquitted. The fine, if paid, will be refunded.
Das, J.
3. I agree.