The potential impact of a criminal prosecution on civil litigation and the fair trial in the Civil Court must be considered in determining whether to prosecute for perjury.

Niyogi, J—This is an appeal under Section 476-B, Criminal P.C., against an order passed by the Sessions Judge, Hoshangabad, directing a complaint to be laid against the appellant for the offence of perjury punishable under Section 193, I.P.C. The case is an offshoot of a Sessions case arising out of the murder of one Ugra Patel. Six persons were put on trial; three of them were acquitted in the Court of Session and the rest in the High Court. In that case it was alleged that Ugra Patel, after his dying declaration had been recorded, executed a will on 26th June 1938, a copy of which was filed as Ex. P-43. The will was admittedly scribed by the appellant. He, when examined as P.W. 39 in the Sessions case, stated that he had never gone to the hospital and had neither scribed the will in the presence of the testator nor the latter signed it in his presence. His statement contradicted his endorsement; ''signed; scribe Rewashanker Moolchand Dube of Harda, read over.'' It is also contradicated by the testimony of Vishnupant (P.W. 42) who was an attesting witness to the will.

2. At the instance of the District Magistrate, the learned Sessions Judge ordered a complaint to be filed as already stated against the appellant. I do not disagree with the learned Sessions Judge that it is ordinarily in the interest of justice to bring the perjurer to book and check such offences, but the question is whether it would ultimately promote the interests of justice if the appellant is prosecuted at this stage. In the first instance it must be borne in mind that the issue as to the execution of the will was, as observed by the High Court, not material in the criminal case. It would be material in the Revenue and Civil Courts where there is bound to arise a controversy as to the genuineness of the will. The final decision will rest with the Civil Court. Nothing should be done to anticipate or prejudice the result of the civil litigation that is sure to ensue at no distant future. Is the contemplated criminal prosecution of the appellant likely to promote the ultimate ends of justice? That is in my opinion problematic. In the Criminal Court all efforts would on one side be concentrated on securing the conviction and on the other acquittal of the accused. The witnesses, who would be produced to depose to the execution of the will, are apt to be influenced more by the considerations as to the fate of the accused than by the desire to prove the genuineness or otherwise of the will itself. The forces that would operate on the mind of the witnesses in the Criminal Court are calculated to warp their attitude in the witness-box and commit them to a course which they would find it impossible to rectify in the Civil Court. It is transparent that the criminal case is calculated to hamper the fair trial of the issue in the Civil Court. It is on similar considerations that in Foujdar Rai v. Emperor,1926 13 AIR(Pat) 25 the order passed in that case making a complaint was set aside. The lower Court's order is set aside and the complaint is directed to be withdrawn.