1941 (7) TMI 24

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....Under Section 476 of the Criminal Procedure Code the Court must be satisfied that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, which includes offences under Section 193 of the Indian Penal Code; so that we have to be satisfied that it is expedient in the interests of justice that there should be a prosecution. 3. The facts are that the applicants made a statement before the Magistrate under Section 164 of the Criminal Procedure Code, alleging, in some detail, that they had witnessed the murder of a man named Rayappa. The alleged murderer was subsequently prosecuted, but at the inquiry before the committing Magistrate the applicants resiled from their statements, a....

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....Purshottam Ishwar (1920) I.L.R. 45 Bom. 834 F.B., held that in such a case the statement under Section 164 and the subsequent evidence in Court constituted a series of acts within the meaning of Section 236 of the Criminal Procedure Code, and that consequently it was legitimate to frame a charge in the alternative, a charge of perjury committed either before the Magistrate taking a statement under Section 164 or subsequently in Court, and to record an alternative conviction. The Court in that case consisted of five Judges, one of whom, Mr. Justice Shah, dissented from that proposition. The authority of the case may be open to question, since there had been a previous decision of a full bench of this Court of four Judges in Queen-Empress v. ....

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....ull benches to consider rulings of division benches. However, I need not pursue this subject further, since, for the purpose of the present appeal, I am prepared to assume that an alternative charge of perjury lies, and that it was a charge of that nature which the learned Additional Sessions Judge contemplated. The question then is whether it is expedient in the interests of justice that such a charge should be made. 5. Now, to my mind, in determining that question it is absolutely essential that the Court should make up its mind whether it was the statement before the Magistrate under Section 164, or the statement subsequently made in Court, which was false. J. gather from the judgment of the learned Additional Sessions Judge that he i....