ORDER
Rowland, J.
1. The petitioner is an accused person who is being prosecuted for an alleged offence under Section 193 read with Section 116, Indian Penal Code, that is to say, for abetment of an offence which was not in fact committed. The allegation is that during the pendency of commitment proceedings arising out of a dacoity at Rudauli, he instigated two persons, Sitaram Halwai and Rago Dhanuk, to give false evidence before the Sub-Divisional Officer in connection with the identification of the accused persons for whom the present petitioner was acting as Pleader. The contentions of the petitioner are that the case against him is false. It is suggested that the Sub Divisional Officer who made the complaint under Section 476 was moved by personal animus against the petitioner, that the proceedings were bad for want of preliminary inquiry before directing a complaint, that it is not desirable in the interest of justice that the alleged offence should be tried out, that the proceedings are bad for want of definite findings by the Sub-Divisional Officer and by the Sessions Judge on appeal, that a prosecution was required in the interest of justice. Mr. Manohar Lal also suggested that if a complaint was to be filed, the proper person to present it was not the Sub-Divisional Officer who held the commitment proceedings but the Assistant Sessions Judge who held the trial.
2. Mr. Manohar Lal for the petitioner has presented to me an historical review of the facts on which the suggestions against the Sub-Divisional Officer are based. It is said that the dacoity took place on July 26, 1935. A test identification was held in September 1935 before a Sub-Deputy Magistrate. The petitioner who acted for some of the accused as Pleader presented a petition to the Sub-Deputy Magistrate who held the test identification making certain allegations against the Sub-Inspector, Rampirit Pande, and suggesting that he was tutoring witnesses as to the identification. The Sub-Deputy Magistrate referred the matter to the Sub-Divisional Magistrate to whom on September 6, 1935, the petitioner presented another petition on behalf of the accused with similar allegations. Other suspects presented an-other similar petition on September 9, 1935, alleging that by intimidation and coercion the Police are fabricating evidence. Other accused persons presented a similar petition on September 17, and two accused persons, Kamli Singh and Ramji Potdar, presented affidavits on September 18, 1935, in support of the above allegations. Another accused, Jadunandan Rai, filed a regular complaint on September 20, 1935, alleging that on August 20, 1935, he had been assaulted by the Sub-Inspector in order to extort a confession. Again, after submission of the charge-sheet on November 4, 1935, the petitioner, on behalf of the accused persons, presented a petition that a test identification by all the witnesses might be held at one time as the Sub Inspector was trying to get witnesses tutored to make false identifications.
3. There is no material before me to judge whether any of these allegations were made in good faith or were not. On November 27, 1935, one of the prosecution witnesses, Sitaram Halwai, swore an affidavit before the Sub-Divisional Officer of Beguserai that he had been called through Biso Singh to the petitioner at the latter’s shoe -shop and had been asked by the petitioner not to identify and to make wrong identifications and to say that he had been beaten by the Sub-Inspector. Ragho Dhanuk is named in this affidavit as having been present with Sitaram Halwai. No immediate action was taken by the Sub-Divisional Officer on this affidavit. Ragho Dhanuk in the course of his examination in the commitment proceedings made a similar statement. On December 2, 1935, the commitment proceedings in the Court of the Committing Magistrate ended. Of the 16 accused, 10 were committed to Sessions and 6 were discharged. The trial ended on March 12, 1936 in the conviction of the accused by the Assistant Sessions Judge. An appeal to the High Court was disposed of in June 1936.
4. The record, it is said, was received back by the Sub-Divisional Officer on June 30, 1936, but it was not till August 27, 1936 that he filed the present complaint. It is suggested that the delay was to the pendency of certain other proceedings in which the Sub-Divisional Officer was directly involved. There had been in May 1935 a proceeding under Section 144 in which one Rameshwar Das was concerned. It is said that the Sub-Divisional Officer made certain observations in open Court reflecting on the personal character of Rameshwar Das, a client of the petitioner. Rameshwar Das gave notice under Section 80, Civil Procedure Code, of his intention to bring a civil suit against the Sub-Divisional Officer claiming damages for the defamatory language used, that at an administrative inquiry held by the Collector into the matter the petitioner gave evidence for Rameshwar Das and the latter filed his suit on August 6, 1936. It was, however, withdrawn on August 7, 1936.
5. It is suggested that the delay in filing the complaint on August 27, 1936, was due to the Sub-Divisional Officer not daring to present it earlier because of the proceedings against himself. As to this I have no doubt that if the complaint had been presented immediately on return of the record from the High Court, the petitioner would have contended that it had been done in order to put pressure on himself to stifle the suit brought by Rameshwar Das. I am unable to attach any sinister significance to the delay in presenting the complaint. As for the previous history, it is capable of two interpretations: one may be that the petitioner has throughout been conducting a campaign against the Police Officers and Sub-Divisional Officer who were doing their duty. Nothing has been placed before me to show that there was any substance in the allegations contained in the successive petitions filed in September 1935 challenging the bona fides of the test identifications. The fact that Sitaram’s first allegation was made in the form of an affidavit and that Sitaram in his evidence in chief in the dacoity case did not refer to that incident is suggested to be an indication that the incident is not true. That is a matter going to the truth or falsity of the charge against the petitioner and it would be out of place for me to express any opinion in the present proceedings in revision as to -whether there is another explanation less favourable to the petitioner. I shall turn now from matters which may have been introduced in order to create prejudice to the objections affecting the merits of the order under revision.
6. As to the first objection that the proper Court to complain was that of the Assistant Sessions Judge, there was an observation in the judgment of that officer dated March 12, 1936, that “it is desirable in the interest of the purity of administration of justice that the allegations be enquired into”. The allegations referred to are that the petitioner attempted to suborn evidence. But the alleged attempt was during the commitment inquiry and was with reference to the commitment proceedings. The Sub-Divisional Officer, therefore, had jurisdiction to make the complaint. Then it is said that he ought to have held a preliminary inquiry and that the accused should have had notice and opportunity to show cause against his prosecution. The wording of Section 476 does not make it incumbent on the Court to hold any preliminary inquiry or to give accused notice and if an inquiry is held, its nature, method and extent are entirely within the discretion of the Court. I come to the argument that the proceedings are bad because there is no finding by the Sub-Divisional Officer or the Sessions Judge that an inquiry is expedient in the interests of justice. The complaint itself does not contain an expression of the Sub-Divisional Officer’s opinion that inquiry into the alleged offence was desirable. This was pointed out to the Sessions Judge on appeal and he gave the Public Prosecutor an opportunity of obtaining the order sheet of the Sub-Divisional Officer. Two days later the Public Prosecutor produced the order-sheet dated August 27, 1936. This order-sheet the petitioner suggests is not genuine but was fabricated by the Sub-Divi3ional Officer in order to fill up the lacuna in his complaint. Such a suggestion was made before the Sessions Judge in appeal. It is a daring and scandalous suggestion. The order-sheet is a public document being the record of an act of a public judicial officer and the presumption is that it is genuine. I would require evidence and not mere suggestion to justify its rejection.
7. I may point out that if the order-sheet was a document fabricated by the Sub-Divisional Officer between October 14, and 16, in order to fill a gap in the contents of its complaint, it is surprising that the order sheet itself should not contain a finding in express terms that prosecution was expedient in the interests of justice. The Sub-Divisional Officer has noted in the order-sheet that the Assistant Sessions Judge directed inquiry into the conduct of the Pleader for purity of the administration of justice and expressed his own opinion that any further preliminary inquiry would not be expedient. He said that the other facts disclosed a prima facie case and directed a complaint to be filed. The order-sheet (and the complaint too) make it sufficiently clear by implication that the Sub-Divisional Officer was in fact of opinion that a prosecution was expedient, and it is a pity that in neither of these documents has he expressly stated this. In the Sessions Judge’s judgment also I look in vain for a definite finding that a prosecution is desirable. It is certainly desirable that Courts of fact should express themselves definitely and unequivocally on the question whether it is expedient in the interest of justice that an inquiry should be made; otherwise as in Keramat Ali v. Emperor 55 C 1312 : 113 Ind. Cas. 842 : AIR 1928 Cal. 862 : 30 Cr.LJ 221 the High Court may have to look into the facts for itself and form its own opinion as to whether a prosecution is desirable or not. In the present case the allegation is one of a flagrant attempt to scandalise justice by suborning false evidence. There is direct evidence in support of it and it seems to me in the highest degree desirable that the questions at issue be tried out and judicially determined on evidence. If it be proved that the allegations against the petitioner are true, it is certainly undesirable that he should go unpunished. If they are false it is equally undesirable that a stigma of suspicion should attach to his character. I have, therefore, no doubt that it is expedient in the interest of the administration of justice that the trial of the petitioner should proceed. The application is dismissed and the stay order vacated.