JUDGMENT

Simpson, A J C - This is a reference by the learned Sessions Judge of Gonda. I am asked to quash a commitment. The fast get forth are that one Sital Prasad lodged a complaint against one Baba Gayan Das under Section 406 for embezzlement of a sum of Rs. 35,400 which Sital Prasad had deposited with him. The case was tried in the Court of the Magistrate, and Sital Prasad produced a receipt to prove the deposit purporting to be signed by Baba Gayan Das. The Magistrate found that this document was forged and he took proceedings under Section 476 against six persons. One of these was Sital Prasad. He was charged Under Section 465 with forgery and under Section 467-114 with an abetment of forgery of the valuable security amounting to the offence itself. Also under Section 471 with using a forged document as genuine, and under Section 474 with having in his possession a document which he intended to use as a forged document. This charge appears to be somewhat redundant, but it is not this that I am asked to quash. The Magistrate also committed Chhedi described as attesting witness, but with this commitment I am not now concerned.

2. There were three witnesses: Ram Kishore, Baba Gayan Das and Ram Dhani, who gave evidence that a sum of Rs. 35,400 had been deposited by Sital Prasad with Baba Gayan Das and that Baba Gayan Das had executed a receipt. These three persons have been committed on charges under Section 465 of forgery, Section 469-114 of abetment of forgery, and Section 471-109 of abetment of the fraudulent use of a forged document. It is this commitment which I am asked to quash.

3. The learned Judge says that even if the entire prosecution evidence is to be believed, it cannot be said that they committed forgery or abetted that offence. He goes on to say that if the entire prosecution is to be believed, then the offence which they have committed is that under Section 196 of the Indian Penal Code, for giving false evidence, and he has learnt that separate cases under Section 193, Indian Penal Code, are already pending against them. It is certainly difficult to see how they can be said to have abetted the forgery itself, if the only evidence is that they made a deposition in Court with regard to it. But it is not equally clear that they were not abetting the use of a forged document as genuine. If these witnesses gave evidence, as they appear to have done, that they had seen Baba Gayan Das writing the receipt, it would appear that they intentionally aided by their deposition the doing of the act. The deposition itself would be an act towards the use of the document in the case that would bring them under the third clause of Section 107. It is also possible that it might be a fair legal inference that they had engaged in conspiracy; for they could hardly have come into Court unless it had been previously arranged between themselves that Sital Prasad should use a forged document and that they would give false evidence in support of it.

4. It is not desirable that there should be two trials in respect of same act namely, the giving of false evidence, one under Section 193 and another under Section 471-109. But I do not think I have power to quash a commitment on such grounds as that. I think the best course will be to let the commitment stand, and to stay proceedings in the Magistrate's Court in respect of the offence under Section 193, Indian Penal Code. If the learned Sessions Judge, on trying the case, does not record a conviction under any section, the matter will come before this Court for decision whether the present suit in the Magistrate's Court should be allowed to go on.

5. The learned Judge, when he has finished trying the case, will forward the record to this Court in order that the Court may decide whether the proceedings ought to go on in the Magistrate's Court or not.

6. The learned Sessions Judge will convey the orders of this Court to the Magistrate who is trying the cases under Section 193.