JUDGMENT
Melvill, J.
1. The Sessions Judge of Ahmednagar being debarred by Section 473 of the Code of Criminal Procedure from trying an offence committed in contempt of his own authority, the case of the Queen v. Gaji, wife of Ranu, is, under the provisions of Section 64 of the Code, ordered to be transferred for trial to the Sessions Court of Poona.
2. If it were not for the peculiar wording of Section 473 of the Code of Criminal Procedure, we should have hesitated to accept the broad proposition laid down in The Queen v. Navranbeg (10 Bom. H.C. Rep. 73), that the offence of giving false evidence is to be regarded as a contempt of Court. But [notwithstanding some rulings of the Allahabad Court to the contrary–Queen v. Kultaran Singh (I.L.R., 1 All. 129) and Queen v. Jugat Mull (I.L.R., 1 All. 162)] we agree with the Madras High Court (see Proceedings, 24th March 1873, 7 Mad. H.C. Rep., Appx. XVII) that the Legislature has, by most inapt words, extended the prohibition contained in Section 473 to the offence of giving false evidence, and that consequently a Sessions Judge cannot try any person for such an offence committed before himself.
3. It follows that, in cases like the present, in which a Magistrate commits a person for trial before the Sessions Court for the offence of giving false evidence before the Sessions Judge, the case cannot be tried by the Sessions Court, unless there be an Assistant Sessions Judge or a Joint Sessions Judge to whom the case can be referred. In Ahmednagar there is no such officer. The commitment cannot be quashed, as there is no error in law (Criminal Procedure Code, Section 197). The only remedy, therefore, is to order the transfer of the case for trial to another Court of Session.
4. It is obvious that such a proceeding involves much inconvenience and hardship to witnesses. It would be better that, in all such cases arising in districts in which there is no Assistant or Joint Sessions Judge, the Magistrate should try the case himself, and that, if the sentence which the Magistrate is competent to pass is insufficient, the Sessions Judge should refer the case to the High Court for enhancement of sentence.
5. It is to be hoped that the attention of the Legislature will be directed to the defect in the law which creates this difficulty, and which appears to have been the result of an oversight. When Section 172 of Act XXV of 1861 was reproduced verbatim in Section 472 of the Code of Criminal Procedure, it was, no doubt, the intention of the Legislature that the new section should have the same effect as the old, and that a Court of Session should be able to charge a person for giving false evidence before itself. But this intention has been defeated by the change which has been made in the schedule of the Code, rendering the offence of giving false evidence triable by a Magistrate of the First Class, and no longer “by the Court of Session exclusively.”
