JUDGMENT

Boys, J. - The applicant in revision, Baddu Khan, was an accused in a criminal case, and applied to this Court for transfer. In support of that application he filed an affidavit affirmed by himself in which the statement occurred:

That one Shib Lal... who is a relation of the complainant (Nand Kishore) owns a shop in Kashipur where the complainant and the trying Magistrate both often come: and sit together.

2. The trying Magistrate, Mr. Sadanand in his explanation, replied as follows:

(1) It is a fact Lala Shib Lal is some relation of the complainant.

(2) It is altogether false that I ever saw the complainant at the ship of Lala Shib and that I had any talk with the complainant.

3. Mr. Justice Dalal, in view of this denial, ordered the prosecution of Baddu Khan u/s 199, I.P.C., for having made a, false statement in the affidavit to the effect that the complainant, Nand Kishore, and the Magistrate, Mr. Sadanand often came and sat together at the shop of Shib Lal who is admittedly a relation (first cousin) of the complainant, Nand Kishore. As a result of this order a prosecution was started which resulted in the conviction of the accused by the Joint Magistrate, and a sentence of six months rigorous imprisonment, which conviction and sentence were upheld by Mr. Thurston, the Sessions Judge of Allahabad.

4. It may be noticed that the composite allegation by the accused, Baddu Khan, when applying for transfer, contained several statements:

(a) That Shib Lal is a relation of the complainant.

(b) That Shib Lal owns a shop in Kashipur.

(c) That the complainant Nand Kishore used to sit there;

(d) That Mr. Sadanand, the trying Magistrate, used to sit there.

(e) That the complainant Nand Kishore, and the trying Magistrate Mr. Sadanand often sat there together.

5. As to (a), it is admitted by the Magistrate in his reply that Shib Lal is a relation of the complainant. As to (b): this was not denied by Mr. Sadanand and is inferentially admitted. As to (c): this is not denied by Mr. Sadanand. As to (d): this was not denied by Mr. Sadanand. As to (e): Mr. Sadanand denied this. He not only denied that he often sat there with the complainant, but denied that he had even seen the complainant there at all.

6. In view of this denial as to (e) it was inevitable perhaps that the prosecution of the accused should be ordered.

7. What, however, had to be determined at the trial was not whether a prosecution was called for, but whether the charge of making a false statement on the point (e) had been affirmatively proved against the accused. (After considering the evidence His Lordship proceeded). To turn to the judgment of Mr. Thurston in the appellate Court: he appears to have confused himself from the outset by not keeping clearly in mind the one single point that he had to decide. After referring to the facts of the issue of a warrant, the inspection of Shib Lal's registers for the purposes of Income Tax, the living of the Magistrate in the guest house of Shib Lal, and purchases of cloth by the Magistrate from Shib Lal, the learned Judge says:

None of these facts are by themselves sufficient to establish an inference that the Magistrate, was corrupt or partial.

8. This was not an issue that the Judge had to try. He then continues:

It is to be seen, however, whether the appellant had any justification for his apprehension.

9. This, again, was wholly immaterial to the issue, and the only issue, which the Judge had to try, viz., whether or not the Magistrate had often sat with Nand Kishore at the shop of Shib Lal.

10. The Judge then says:

I will refer to his witnesses. Sardar Ali deposed that he had seen the Magistrate on one occasion at Shib Lal's shop. This one occasion cannot be treated as "often."

11. It is sufficiently obvious that "one occasion cannot be treated as often," and it is equally obvious that "one occasion" added to other occasions might amount to "often." Moreover, the Judge omits to note that Sardar Ali, whom he does not say he disbelieves, speci