Voluntary declarations, unless in the form of affidavits, cannot be used as evidence for a criminal prosecution under section 199, Indian Penal Code.

Niyogi—This is an appeal under section 476 B, Criminal Procedure Code, from an order of the Second Subordinate Judge, First Class, pursuant to which he laid a complaint against the appellant in the Criminal Court alleging the commission of offence under section 199, Indian Penal Code.

2. One Tyabali executed a mortgage deed on the 24th October 1925 in favour of Asgarali to secure a debt of Rs. 6,000. Asgarali assigned the mortgage deed to Mt. Zohrabi who instituted Civil Suit no. 18-A of 1936. (Original Civil Suit no. 77 of 1932) in the Court of the Additional Subordinate Judge, First Class, Nagpur, against the legal representatives of the mortgagor. The defendants pleaded repayments totalling Rs. 3,850-3-6- The plaintiff admitted the repayment of Rs. 1,000 but denied the rest. The issue framed was : What were the total repayments under the deed ? The finding was : the additional repayments pleaded by the defendants were not made. On appeal to the High Court, the Division Bench was of opinion that Asgarali had account books in his possession but that he had deliberately withheld them from the Court and affirmed the defendants' plea of repayment. The High Court delivered its judgment on the 5th February 1941 and the defendants applied to the lower Court for action under section 476, Criminal Procedure Code, on the 5th April 1941 and succeeded in inducing that Court to file a complaint against Asgarali for offence punishable under section 199, Indian Penal Code.

3. The basis of that complaint is the written statement which was filed by Mr. Indurkar on behalf of Asgarali on the 18th November 1935. That statement contained the passages extracted by the lower Court in its order under appeal and the allegations of fact made therein were verified by Asgarali as being true to his personal knowledge and belief.

4. The lower Court's order is assailed on two grounds : (1) that there is no affirmative evidence on the record to disprove the truth of the allegations made in the verified statement filed by Asgarali on the 18th November 1935, (2) that the statement cannot found a criminal prosecution for an offence under section 199, Indian Penal Cole. On behalf of the appellant much reliance is placed on an order passed by me in a previous case which is reported in Asgarali v. Crown,1942 NLJ 257.

5. I have hoard the counsel at great length and carefully perused the record and took time for consideration. As regards my previous order publised in 1942 N.L.J. 257 it will suffice to say that in that case there was no decision on the merits of the case. The original Court's order laying the complaint was set aside on the ground that the Court had not applied its judicial mind to the material on the record but that it had contended itself merely by reproducing in extenso the opinion of the High Court. In the present case the lower Court had before it the previous depositions of Asgarali which contradicted the allegations made in the verified statement. That evidence may not be sufficient to warrant conviction but it is good enough to justify an enquiry by the Criminal Court.

6. On the point of law however it appears to me that the appellant's argument has great force. If the impugned passages extracted by the lower Court in its order were false to the knowledge of the declarant the case at first sight would appear to fall either under section 193 or section 199, Indian Penal Code. The lower Court does not apply section 193, Indian Penal Code, but applies section 199 only. If the lower Court apparently felt a difficulty in applying section 193, Indian Penal Code, I find greater difficulty in applying section 199, Indian Penal Code. Section 199, Indian Penal Code, runs as follows : Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false shall be punished in the same mann