21 April 1959
Supreme Court


Case number: Appeal (crl.) 19 of 1957






DATE OF JUDGMENT: 21/04/1959


CITATION:  1959 AIR  843            1959 SCR  Supl. (2) 727

ACT: Criminal  Trial-Perjury-False statement  in  affidavit-Affi- davit  affirmed  to  the best  of  knowledge  and  belief-No obligation  to  file affidavit-Offence, if  made  out-Indian Penal Code, 1860 (XLV of 1860), ss. 191 and 193.

HEADNOTE: A  habeas  corpus  application was made to  the  High  Court alleging that one S had been illegally arrested and kept  in unlawful  custody without any charge being made against  him and without obtaining remand from a Magistrate.  By way of a return  the  appellant, a sub-Inspector of Police,  filed  a false  affidavit controverting the allegations made  in  the application.  He was prosecuted and convicted under s.  193, Indian Penal Code.  The appellant challenged his  conviction on  the grounds that: (i) as he was not bound under the  law to file an affidavit, the case did not fall under s. 191  of the Indian Penal Code and he could not be convicted under s. 193 ; and (ii) the affidavit having been affirmed as true to the  best  of the knowledge and belief of the  appellant  it could  not be said which part was true to his knowledge  and which to his belief. Held that, the appellant was rightly convicted.  It was  not necessary for the application of s. 191 of the Indian  Penal Code that the accused should be bound under the law to  make an  affidavit.  If he chose to me one and bound  himself  on oath  to state the truth he was liable under s. 193  Of  the Code  if e made a false statement and it was no  defence  to say  that he was not bound to enter the witness-box or  make an affidavit.  In the present case it was necessary for  the appellant to file an affidavit as he was bound to place  the facts and circumstances justifying 728 the  detention  which could only be done  by  an  affidavit. Ordinarily,  where  the  detention is under  orders  of  the detaining authority in exercise of his plenary powers or  of a  Court  an affidavit may not be necessary  in  making  the return  but  where it becomes necessary  for  the  detaining authority  to justify its action by disclosing facts it  has to file an affidavit. Held,  further,  that explanation 2 to S. 191  of  the  Code brings  a  false  statement affirmed to the  belief  of  the



accused also within the mischief of s. 191 and thus makes it punishable under s. 193 of the Code. Emperor  v.  Lachmi  Narain, I. L. R. 1947  All.  155,  dis- approved.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 19  of 1957. Appeal  by special leave from the judgment and  order  dated March  7, 1956, of the former PEPSU High Court  in  Criminal Revision  No.  45 of 1956, arising out of the  judgment  and order  dated February 22, 1956, of the  Additional  Sessions Judge, Patiala, in Criminal Appeal No. 175/36 of 1955-56. Pritam Singh Safe&, for the appellant. N. S. Bindra and T. M. Sen, for the respondent. 1959.  April 21.  The Judgment of the Court was delivered,by KAPUR,  J.-This  is an appeal by special leave  against  the judgment  and  order of the High Court of  PEPSU  passed  in revision’.  The appellant was a sub-Inspector of Police  who at the relevant time was the Station House Officer in-charge Shehna police station in the erstwhile PEPSU State.  He  was convicted under s. 193, Indian Penal Code, by a First  Class Magistrate  and his appeal to the Sessions  Judge,  Patiala, was dismissed except as to sentence.  He took a revision  to the PEPSU High Court but that was also dismissed. This  appeal has arisen in the following circumstances:  One Surjit  Singh,  s/o Risaldar Waryam Singh, was  arrested  on September 25, 1953, at Barnala in PEPSU State by the  Police Inspector  Jaswant  Singh.  He was kept in  the  lock-up  at Barnala and on the following day his custody was handed over to the appellant and he was taken to Shehna and was kept  in custody-it 729 is not clear under what section-in the police station  lock- up  at Shehna.  Surjit Singh was there kept in custody  from September 26, 1953, till October 10, 1953, when at about  10 p.m.,  he  was  surreptitiously removed  to  Police  Station Dialpur and then to Police Post Hamirgarh and from there was taken  to Police Station Baga Purana in Ferozepur  District, of  the  then Punjab.  An application under s.  491  of  the Criminal   Procedure  Code  and  under  Art.  226   of   the Constitution  was  made  for a writ  of  Habeas  Corpus  and Mandamus  in the High Court of PEPSU.  In that  petition  it was  alleged  that Surjit Singh was being kept  in  unlawful custody without any charge being made and without  obtaining a  remand by a Magistrate.  In reply to this,  an  affidavit dated  October  13, 1953, was filed by the  appel.  lant  in which  he  stated  that Surjit Singh  had  association  with notorious  dacoits; that he, the appellant, had never  taken him into custody at any time; that the said Surjit Singh was absconding  and had not been arrested in spite of  the  best efforts of the police; that at the time of the making of the affidavit he was not in the appellant’s custody and that  it was   incorrect  that  Inspector  Jaswant  Singh  had   ever entrusted  Surjit  Singh to his (appellant’s)  custody.   He also stated that no petition had been brought to him nor had he  received any telegram in connection with the custody  of Surjit Singh.  This affidavit was affirmed as follows:- " I solemnly affirm that the facts stated from paras Nos.  I to  7  are true to the best of my knowledge and  belief  and nothing  which is relevant to this case has been  kept  back from this Hon’ble Court ".



As  both  the parties admitted before the  High  Court  that Surjit  Singh  was not in the custody of the  appellant  the petition was dismissed.  On November 9, 1953, the brother of Surjit  Singh  made an application under  s.  476,  Criminal Procedure  Code,  for the prosecution of  Inspector  Jaswant Singh  and  the appellant for perjury under s.  193,  Indian Penal  Code, in that they had filed false affidavits.   This matter was heard by another learned Judge of that Court  who ordered the 92 730 prosecution  of the appellant and directed the Registrar  of the High Court to file a complaint which was filed. The  complaint  was taken cognizance of by the  First  Class Magistrate  at  Patiala  who  convicted  the  appellant  and sentenced him to nine months’ imprisonment and a fine of Rs. 300/- and in default to undergo simple imprisonment for  two months.  The appellant took an appeal to the Sessions Judge, Patiala,  who confirmed the order of conviction but  reduced the sentence to one of three months’ simple imprisonment and a  fine  of  Rs.  50  and  in  default  one  month’s  simple imprisonment, a revision against this order was dismissed in limine  by  the Chief Justice although he gave  reasons  for dismissing  it.  The appellant then obtained  special  leave from this Court. On  behalf of the appellant the first contention raised  was that  the appellant was not bound to file an  affidavit  and therefore  he  could not be convicted under s.  193,  Indian Penal  Code,  because his case did not fall  under  s.  191, Indian  Penal Code.  In support of his contention he  relied upon  the  Rules  of the PEPSU High  Court  framed  for  the purpose  of  proceedings  under  Art.  226  and  s.  491(2), Criminal Procedure Code, for the issuing of writs of  Habeas Corpus.   He also referred to the Rules made by  that  Court for  the  issuing  of writs of  Mandamus,  Prohibition,  Quo Warranto  and Certiorari under Art. 226 and  submitted  that there  was no Rule in the former, i.e., for writ  of  Habeas Corpus  requiring a return to be made on behalf of the  res- pondent  to  be sup-ported by an affidavit  whereas  in  the latter, i.e., issuing of writs of Mandamus etc. an affidavit was necessary and therefore it was submitted that s. 191 was inapplicable.   Rule  2 of the Rules of the  Court  required that  when a Judge was of the opinion that prima facie  case had  been made out for granting the application a rule  nisi was to issue calling upon the person or persons against whom the order was sought, to appear before the Court and to show cause  why  such an order should not be made.  As  has  been pointed out in Greene v. Home Secretary (1) which was a case under Reg. 18-B of the Defence of the (1)  [1942] A.C. 284, 302. 731 Realm  Act  the whole object of proceedings for  a  writ  of Habeas  Corpus is to make them expeditious, to keep them  as free  from  technicality  as possible and to  keep  them  as simple  as  possible.  " The incalculable  value  of  Habeas Corpus is that it enables the immediate determination of the right  to  the appellant’s freedom "  (Lord  Wright).   When there is no question of fact to be examined or determined no affidavit  is needed.  As soon as there emerges a fact  into which the Court feels it should enquire the necessity for an affidavit  arises.   Ordinarily  an  affidavit  may  not  be necessary  in  making the return if the detention  is  under orders of the detaining authority in exercise of its plenary discretion as in Liversidge v. Anderson (1) and in  Greene’s case  (2)  or  a person is detained under the  orders  of  a



Court.  But where the detention is, as it was in the present case,  it becomes necessary for the detaining  authority  to justify  its action by disclosing facts which would show  to the satisfaction of the Court that the custody is not impro- per.   Where  the prisoner says " I do not know why  I  have been  detained,  I  have  done no wrong ",  it  is  for  the detaining authority to justify the custody.  When issues  of fact  are raised and the actions of the police officers,  as in the present case, are expressly challenged and facts  are set  out  which  if  unrebutted  and  unexplained  would  be sufficient  for  the  writ to issue,  an  affidavit  becomes necessary.  It cannot be said therefore that in the  present case the appellant was not legally bound to place facts  and circumstances  before the Court to justify the detention  of Surjit Singh and, this could be done by an affidavit. Section  4  of  the Oaths Act lays  down  the  authority  to administer  oaths  and affirmations and  it  prescribes  the courts and persons authorised to administer by themselves or by  their  officers  empowered  in  that  behalf  oaths  and affirmations  in discharge of the duties or in  exercise  of the  powers imposed upon them and they are, all  courts  and persons  having  by law the authority to  receive  evidence. Section   5  prescribes  the  persons  by  whom   oaths   or affirmations must be (1) [1942] A.C. 206. (2) [1942] A.C. 284, 302. 732 made and they include all witnesses, i. e., all persons who’ may  lawfully be required to give evidence by or before  any court.   These two sections show that the High Court or  its officers  were authorised to administer the oath and as  the appellant  was  stating facts as evidence  before  the  High Court  he had to make the oath or affirmation and was  bound to  state  the  truth.  Section 14 of that  Act  is  in  the following words: S.   14.  Every person giving evidence on any subject before any  Court or person hereby authorised to  administer  oaths and  affirmations shall be bound to state the truth on  such subject ". As  the appellant was giving evidence on his own  behalf  in that he was denying the allegation made in the affidavit  of the brother of Surjit Singh he was bound to state the  truth on  the subject on which he was making the  statement.   The contention  therefore that under s. 191 of the Indian  Penal Code the relevant portion of which is: S.   191.  " Whoever being legally bound by an oath or by an express provision of law to state the truth .........  makes any  statement which is false and which he either  knows  or believes to be false or does not believe to be true, is said to give-false evidence " the appellant was not legally bound by  oath  to state the truth cannot be  supported.   On  the other hand at the stage of the proceedings in the High Court where  it  was  being alleged that Surjit  Singh  was  being detained by the appellant illegally it was necessary for the appellant  to  make  an affidavit in  making  a  return  and therefore if the statement is false, as it has been found to be, then he has committed an offence under s. 193. The  opening words of s. 191 whoever being legally bound  by an  oath  or  by an express provision of law  to  state  the truth............ do not support the submission that a  man, who is not bound under the law to make an affidavit, can, if he   does  make  one,  deliberately  refrain  from   stating truthfully  the facts which are within his knowledge,.   The meaning of these words is that whenever in a court of law  a person binds himself on oath to state the truth he is  bound



to state the 733 truth and he cannot be heard to say that he should not  have gone  into  the  witness-box  or should  not  have  made  an affidavit  and  therefore  the  submission  that  any  false statement  which  he had made after taking the oath  is  not covered  by  the words of s. 191, India Penal Code,  is  not supportable.   Whenever a man makes a statement in court  on oath  he is bound to state the truth and if he does not,  he makes himself liable under the provisions of s. 193.  It  is no  defence  to  say  that he was not  bound  to  enter  the witness-box.   A defendant or even a plaintiff is not  bound to go into the witness-box but if either of them chooses  to do  so  he  cannot, after he has taken the oath  to  make  a truthful  statement, state anything which is false.   Indeed the very sanctity of the oath re-quires that a person put on oath  must state the truth.  In our opinion this  contention is wholly devoid of force and must be repelled. It  was  then  contended that the officer  before  whom  the appellant  swore the affidavit, i. e., the Deputy  Registrar of the High Court of PEPSU was not authorised to  administer oaths.   That officer as a witness for the  prosecution  has stated  that he could administer an oath and therefore  this contention  of the appellant is also without any  force  and must be repelled. It was also argued that the affidavit filed by the appellant was  affirmed  as being true to the best  of  knowledge  and belief  and therefore it could not be said as to which  part was  true  to  the appellant’s knowledge and  which  to  his belief.   We  have read the affidavit which  consists  of  7 paragraphs  and each paragraph relates to affirmation  of  a fact  which,  if true, could only be so to  the  appellant’s knowledge.   But even belief would fall under Explanation  2 to s. 191 which is as under: Explanation  2  to s. 191.  " A false statement  as  to  the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by  stating  that  he believes a thing  which  he  does  not believe,  as well as by stating that he knows a thing  which he does not know 734 The  appellant relied upon a judgment of the Allahabad  High Court in Emperor v. Lachmi Narain (1).  But unless there was something  peculiar in the facts of that case it  cannot  be considered  to  be  good law.  It does not  even  take  into consideration Explanation 2 of S. 191. Lastly  it  was  urged that the  procedure  adopted  by  the Magistrate was erroneous in that he did not hold an  enquiry as required under ss. 200 and 202, Criminal Procedure  Code, the former of which is expressly mentioned in sub-section  2 of  s.  476, Criminal Procedure Code.   That  contention  is equally  untenable because under s. 200, proviso (aa) it  is not necessary for a Magistrate when a complaint is made by a court  to examine the complainant and neither s. 200 nor  s. 202 requires a preliminary enquiry before the Magistrate can assume  jurisdiction  to issue process  against  the  person complained against. In our opinion the appellant has been rightly convicted  and we would therefore dismiss this appeal.            Appeal dismissed.