JUDGMENT
Robert Stuart, C.J.
1. I have given the questions submitted by this reference and the authorities heaving upon them my anxious consideration, and I cannot hold that the offence defined by Section 193 of the Indian Penal Code is within the meaning and scope of Section 473 of the Criminal Procedure Code. I regret to say that I fail to appreciate the Madras and Bombay rulings which were referred to at the heaving. These rulings, as well as the argument that was maintained before us on behalf of the appellant, express, J must be allowed to say, somewhat loosely and inartificially the general view of the hearing of the Penal and Procedure Codes in regard to offences of this nature. But we must not generalise in such a matter. There can be no doubt that in a certain sense there is involved in the crime of perjury an offence both against the authority of Courts and of public justice; but a more precise question is before us in this reference, and, arising as if does in a criminal case, it should be answered with as much precision and exactness as possible. The question then is, not whether the offence here is as one against the authority of a Court or against public justice, or of both kinds, but whether the precise and particular offence defined by Section 193 of the Penal Code is a contempt within the meaning and scope of Section 473 of the Procedure Code. I am of opinion that it is not. With the exception of the law provided by ch. x of the Penal Code and ch. xxxii of the Procedure Code, no legal definition has been given, so far as I am aware, by any authority recognized by the law of India, Civil or Criminal, of the expression Contempt of Court,” and we can only arrive at a conclusion on such a question as this by comparing the terms of Section 193 of the Penal Code with the provisions of ch. x of that Code and ch. xxxii of the Procedure Code to which I have referred, and by considering whether Section 193 fairly comes within the scope of these provisions. Now the offence defined by Section 193 is distinct and precise in itself, and it forms part of ch. xi of the Penal Code, which deals with the subject of false evidence and of offences against public justice. On the other hand, the immediately preceding ch. x treats of the contempts of the lawful authority of public servants, and within that chapter the excepted matters in Section 473 are to be found, and it appears to me that by no straining of language or meaning could the offence defined by Section 193 of the Penal Code be brought within the sanction of ch. x generally, or specially within the offences intended by the exceptions mentioned in Section 473 of the Procedure Code.
2. The other question in this reference is, whether a Magistrate before whom the offence under Section 193 is committed, being competent to try it himself, is precluded from doing so by Section 471 of the Procedure Code, and is hound to send the ease for trial or commitment to another Magistrate. I have again carefully considered this question, and feel obliged to state that I deliberately and advisedly adhere to my judgment in the case of Queen v. Jagat Mal I.L.R. 1 All. 169, by which I ruled that, as the offence under Section 193 of the Penal Code was one of those included in the category contained in Section 471 of the Procedure Code, the Magistrate there, who was of the first class, had therefore power to try and commit, and could commit either to himself or to the Sessions Court, or send the case for inquiry and commitment to any other Magistrate with the like powers, but that the first mentioned Magistrate was not precluded by Section 473 from trying the offence himself, as ho is not, I consider, in the present case.
3. The offence under Section 193 of the Penal Code being included in the procedure provided by Section 471 of the Procedure Code is not merely a contempt in any general sense, but a distinct and substantive offence in itself, which, in my judgment, a Magistrate may commit to and try by himself.
Pearson, J.
4. Section 473 of Act X of 1872 recognises the offences to which Section 472 refers as offences committed in contempt of the authority of a Court, and those are the same as are indicated in Section 471 as being mentioned in Sections 467, 468 and 469. Section 467 speaks of the offences described in ch. x of the Indian Penal Code not falling within Sections 435 or 436 of the Criminal Procedure Code. Section 468 speaks of the offences against public justice described in Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 of the Indian Penal Code, when such offence is committed before or against a Civil or Criminal Court. Section 469 speaks of offences relating to documents described in Sections 463, 471, 475, 476, of the Indian Penal Code when the document has been given in evidence in any Civil or Criminal Court. It appears to me to follow as a necessary conclusion that the offences above mentioned are all contempts of the authority of a Court within the scope of Section 473, and cannot be tried by the Court before or against which they may have been committed.
5. Under this view the answer to the reference must be that the Court in which the offence described in Section 193 of the Indian Penal Code has been committed cannot try the offender. It is unnecessary to determine whether he is precluded from doing so by Section 471 of the Indian Penal Code. Otherwise I should have been disposed to adhere to my ruling in the case of Queen v. Our Bakhsh I.L.R 1 All. 193.
Turner, J.
6. No good reason is assigned for limiting the term “offence committed in contempt of its own authority” in Section 473 of the Criminal Procedure Code to offences defined in and punishable under ch. x of the Indian Penal Code, and therein described as offences against the lawful authority of public servants. It must, therefore, be taken to embrace all offences which are recognised as contempts of the authority of a Court of Justice. The offence of giving false evidence is such an offence, and reading Section 473 of the Criminal Procedure Code with the sections that immediately precede it, it does not appear to admit of doubt that the Legislature intended that the offence of giving false evidence should he so regarded.
7. In Section 435 and 436 the Code prescribes the procedure to be adopted for the punishment of contempts of Court when immediate action is called for by the nature of the offence. In Section 464-473 it deals with offences of the same character which generally admit of more deliberate action. To prevent the oppressiveness of frivolous proceedings by hostile parties, it requires in Sections 467, 468, and 479 that a complaint of any offence specified in those sections shall not be entertained without sanction of the nature described in Section 470, and among the offences specified in Section 468 is the offence described in Section 193 of the Indian Penal Code. In Section 471 it declares the procedure to be followed when the Court before which any offence specified in Sections 467, 468 and 469 is committed itself takes action and declares the Court competent to commit or send the case for enquiry to any Magistrate having power to try or commit. In Section 472 it empowers a Court of Session to charge a person for any “such” offence, if the offence be triable by the Court of Session exclusively, and to commit or hold to bail and try such person on its own charge; and lastly in Section 473 it, declares in the most explicit language that, except as provided in Sections 435, 436, and 472, no Court shall try any person for an offence committed in contempt of its own authority. It seems clearly to have been intended, so far as is consistent with public convenience, to secure to a person accused of any such offence a trial free from the prejudice which the Judge before whom the offence is alleged to have been committed would be likely to entertain. For these reasons I am of opinion that the Magistrate was incompetent to try the accused.
Spankie, J.
8. I am prepared to accept the rulings of the Madras and Bombay High Courts on the point referred to us, cited during the argument. An offence under Section 193 committed before a Court appears to be not only an offence against public justice, but also a contempt of the Court’s authority. Section 435 of the Criminal Procedure Code too does not limit the offences to which it refers to those only to be found in ch. x of the Penal Code, for an offence under Section 228, ch. xi, is imported into the section. Heading Sections 471, 472 and 473 of the Criminal Procedure Code together, I conclude that a Magistrate cannot try a charge under Section 193 of the Penal Code if the false evidence has been given in his own Court, and that no Court other than the Court of Sessions can try any person for an offence committed in contempt of its own authority.
Oldfield, J.
9. I adhere to the opinion which I expressed in the case of Queen v. Kuttaran Singh I.L.R. 1 All. 129 that the Court before which an offence under Section 193 of the Indian Penal Code is alleged to have been committed cannot try the case. I think the terms of Section 471 of the Criminal Procedure Code are sufficiently clear on this point. I so far modify the view I then took as to bold that an offence under Section 193 of the Penal Code may be considered an offence committed in contempt of the authority of the Court, and therefore Section 473 of the Criminal Procedure Code will also operate to prevent the Court trying any person for such an offence committed before it.
