Judgment

SARKARIA, J.:- These two appeals by the State of Maharashtra are directed against a common judgment, dated April 19, 1973, of the High Court of Bombay, Nagpur Bench, Nagpur. Both will be disposed of by this judgment. They arise out of these facts:

2. Three persons, namely, Shankar, Sk. Bannu and Mohammad Nazir were tried for offences punishable under Sections 205, 419, 465, 467 and 471 of the Indian Penal Code, on the basis of a complaint made on August 12, 1968 by Shri R. K. Karandikar, Judicial Magistrate, First Class, Akola, under Sec. 476 read with Section 195 of the Code of Criminal Procedure. Sk. Bannu, accused 2 was, at the relevant time, serving as a Clerk to an Advocate at Akola. Mohammed Nazir, accused 3, is the son of Sk. Bannu. Accused 1, Shankar, was a milkman residing at Dabki Road, Akola.

3. On October 25, 1968, in respect of offences under Section 85 (1) (2) and (3) of the Bombay Prohibition Act. one Deolal Kishan was arrested. He was produced before Shri L. G. Deshpande, Judicial Magistrate (First Class), Akola, and was remanded to custody till November 2, 1968.

4. On November 1, 1968, an application was made before that Court for releasing Deolal Kishan. Along with that application, an affidavit was filed which purported to have been sworn by one Gulabrao Rupchand Tikar as a surety. This affidavit was sworn before the Senior Clerk (P W. 2) and accused 2, Sk. Bannu is alleged to have identified him as Gulabrao and attested that application for this purpose. The Senior Clerk accordingly accepted what they stated and he made the necessary endorsement on the affidavit. Thus, on the basis of that affidavit, Deolal Kishan was released on bail on November 1, 1968. The bail application and the affidavit were scribed by accused 3.

5. The case against Deolal Kishan was transferred on April 20, 1969 to the Court of Mr. Karandikar, Judicial Magistrate (First Class), Akola, before whom it came up for hearing on May 12, 1969. On that date, Deolal Kishan did not appear. Consequently, the Court issued a non-bailable warrant against him for his arrest and production. Notice was also issued to the surety, Gulabrao Rupchand Tikar (P. W. 3). Gulabrao appeared before the Magistrate on June 2, 1969 in response to the notice and filed a reply in writing (Ex. 25/A) contending that he had never stood as surety for the accused Deolal Kishan; and that, he did not make any affidavit, nor did he sign the application or the affidavit or the bail bond. According to him, he was literate and could sign his name, while the application and the affidavit, in question, bore thumb-impressions of the surety. Gulabrao denied that he swore any affidavit for standing surety of Deolal Kishan. Thereupon, the Magistrate recorded the statement of Gulabrao and initiated an inquiry. He called Mohd. Nazir, accused 3, the scriber of the bail application, and recorded his statement. He also called accused 2, Sk. Bannu, and, directed him to produce the real surety on June 10, 1969 as the Magistrate was satisfied on the inquiry made by him that the person named in the bail application as the surety was not the real surety.

6. On November 9, accused 3, Mohd. Nazir, made an application to the Magistrate on behalf of his father, accused 2, that the real name of the surety was Shankar Kishan Kawitkar. Thereupon, the Magistrate, on June 10, 1969, issued summons to accused 1, Shankar Kishan Kawitkar. The latter appeared in response to the summons on June 17, 1969. The Magistrate recorded his statement (Ex. 29), in which he admitted that the bail application and the affidavit had been thumb-marked by him at the instance of accused 2, and that he had no knowledge about the contents of the application and the affidavit.

7. On the preceding facts, the Magistrate made a complaint to the Judicial Magistrate (First Class), Akola, for prosecution of the three accused persons in respect of the aforesaid offences. The complaint came up before Shri P. N. Panchawadkar, Judicia