The court emphasized that the offence under section 193 was prima facie disclosed in the complaint, and the magistrate's error in excluding the section while issuing process was rectified.

JUDGMENT - DAS T.K. CHANDRASHEKHARA, J.:---The petitioner had filed a complaint before the learned Additional Chief Metropolitan Magistrate, 14th Court, Kurla, Bombay in Case No. 40/89 wherein according to the petitioner, an offence under sections 191, 192 and 193 and disclosed. After examining the complainant and verification on oath, the Magistrate has chosen to issue summons only under sections 191 and 193 of the Indian Penal Code. The petitioner approached this Court with a grievance that the learned Magistrate ought to have issued summons under section 193 also, which is a punishment section. I have gone through the complaint. Prima facie as observed by the Magistrate, an offence of sections 191, 192 and 193 is disclosed. The learned Counsel for the petitioner Mr. Gole submits that it was an error on the part of the Magistrate to exclude the section 193 while issuing the process. Therefore the order passed by the Magistrate dated 1-6-1989 excluding the offence under section 193 of Indian Penal Code while issuing process is liable to be set aside.

2. The learned Counsel for the respondent Shri P.N. Joshi then submits that on the basis of the complaint before the learned Magistrate, a process under section 193 cannot be issued for the simple reason that the process under section 193, Indian Penal Code should be initiated only by the Court of law as envisaged in section 195 of the Criminal Procedure Code. I failed to understand the contents of the submission. What is stipulated in section 195(1)(b)(i) is that, if such of the offences of sections 193 to 196 is committed, in a Court of law, the cognizance of the offences can be taken only at the instance of that Court. But in this case, it is not the position. The document in question was not one produced before the Court. Therefore section 195(1) of Criminal Procedure Code will not be a bar. Dwelling upon this contention, the learned Counsel for the respondent submits that the affidavit in question was sworn in before a Magistrate and in order to take cognizance of an offence under section 193, Indian Penal Code, that Magistrate has to take initiative of proceedings against the accused. On a perusal of the concerned section, I do not think such an interpretation is possible. Adducing evidence and swearing an affidavit is entirely a different concept. The swearing of an affidavit is a form prescribed by law to be used a as piece of evidence acceptable in a Court or before any other authority. Therefore the contentions of the learned Counsel that no offence is being made out under section 193 of Indian Penal Code is of no substance. On going through the complaint of the petitioner, an offence under section 193 has been disclosed prima facie and the learned Magistrate has committed an error in not including the section while issuing process.

3. The learned Magistrate is directed to issue summons for the offence punishable under section 193, Indian Penal Code also. All other contentions raised by the respondents here can be agitated by him before the trial Court at appropriate stage.

In view of this the writ petition is allowed. The Rule is made absolute in the above terms.

No order as to costs.

Writ petition allowed.

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