Crim. P.C. of 1861 (s. 135 of the Act of 1898). But whether an order would be bad or not, when it did not contain a statement of the material facts in the way I have indicated, I still think that at least the record which is sent up to this court, when the validity of the magistrate's order is put in question, should disclose all the facts upon which the magistrate acted, and upon which he relied for the justification of his order. . . . I think we ought not to maintain orders of this kind in force, unless we see that the facts of the case as exhibited in the record justify them in law." Further, the order must show on its face that it applies to the accused, either as an individual or as a member of the class to which it is addressed. In a case where one Gobinda Chander Sahu had established a new hút on his land in the neighbourhood of an old one, from which public disturbance was apprehended, the magistrate issued an order which, after reciting the facts, ended as follows: "It is hereby ordered that the said Gobinda Chander Sahu and all other persons abstain from holding such hát, or any hát whatever, near or within the hát at Krishnagange on any Tuesday or Saturday." The accused was a trader who came to a hát which was held in violation of the order to sell his wares. He was convicted under s. 188. The Court held that the conviction was bad. They said of the order, "It is almost impossible to read the words as including the conduct of people who do not hold the hat as owners and managers, but who frequent it as buyers or sellers. But if we are wrong in this interpretation of the words, at any rate it is clear that the order, looking at it in the most favourable light for the prosecution, is ambiguous, and does not clearly and unmistakably prohibit traders from buying and selling at the hát." 2 Lastly, it must be established that the order came to the knowledge of the accused before he did the act complained of. In case of orders made under ss. 133 or 144 of the Crim. P.C., a particular mode of service or proclamation is provided by s. 134. A conviction under s. 188 was, however, held to be valid, although the directions of the Crim. P.C., s. 134, had not been observed. Wilson, J., said: "I think we may fairly say 1 Per Phear, J., re Harimohun Malo, 1 B.L.R. A. Cr., p. 23; re Kishoree Mohun, 19 Suth. Cr. 10; Gobind Chander v. Abdool Sayad, 6 Cal. 835; Kali Kristo v. Golam Ali, 7 Cal. 46, Mohesh Sircar v. Narain Bag, 27 Cal. 981; Mahadeo Kanwar v. Bisu, 25 All. 537. 2 Parbutty Charan v. Reg., 16 Cal. 9. that the terms of s. 134 and the notification in the Gazette are directory, and ought to be followed, and that it is an irregularity when they are not; but it does not follow that the order is a nullity in consequence, and I think that when the order has been duly made and promulgated, although not strictly in accordance with the terms of the law, and has been brought to the actual knowledge of the person sought to be affected by it, that is sufficient to bring the case under s. 188 of the Indian Penal Code."1 ¶ 323. Disobedience to a lawful order is not an offence under s. 188, unless such disobedience causes, or tends to cause, some of the specific consequences stated in that section. It applies to orders made by public functionaries for public purposes, and not to an order made in a civil suit between party and party. The proper remedy for disobedience to an injunction of the court is committal for contempt of court.2 Accordingly, convictions under s. 188 were set aside where the accused disobeyed an order issued by a Collector, forbidding him to cultivate land in the bed of a tank. And so, where a magistrate issued an order directing persons in possession of arms to take out licences under s. 26 of Act XXXI. of 1860, a conviction under s. 188 for being found in possession of arms without a licence was quashed. What the defendants were carrying arms for was the lawful purpose of destroying game, and there was not the slightest indication to show that, in so doing, they would cause, or were in the least likely to cause, injury or annoyance to any person. Where, however, the statutory consequences have followed, or might have followed, from the disobedience, it is no answer that the defendant neither intended nor contemplated them (s. 188, Explanation). The offence consists in disobedience. The element of intention is immaterial. Where increased punishment is inflicted under the last clause of s. 188, the finding must state facts to show that the case contains elements of aggravation which would warrant the punishment.5 1 Parbutty Charan v. Reg., 16 Cal. 9; Hochan v. Elliot, 5 Suth. Cr. 4; Mahadeo Kunwar v. Bisu, 25 All. 537. 2 Re Chandrakanta De, & Cal. 445. 3 4 Mad. H.C. Rulings vi.; S.C. Weir, 36 [57]. Reg. v. Nandkumar Bose, 3 B.L.R., Appx. 149. 5 Reg. v. Ratanrav, 3 Bom. H.C. C.C. 32. CHAPTER VII. OFFENCES AGAINST PUBLIC JUSTICE. False Evidence. First. 1. Giving False Evidence, 324-336. II. Fabricating False Evidence, ¶¶ 337-342. III. Evidence in Judicial Proceeding, ¶¶ 343–346 V Using False Evidence, ¶¶ 351, 352. VI. False Statement to Public Servant, ¶ 353. VII. Causing Disappearance of Evidence, or giving False Informa II. 357-363. Fraudulent Preference, 364-369. ¶ 324. False Evidence. In order to constitute the offence of giving false evidence, it is necessary (1) that the statement should have been made under circumstances which raise it from a mere assertion or a promise, into what can be described as evidence; (2) that it should be false; and (3) that its falsity should be known to the person making it. No promise or undertaking, however formal, or however important it may be as evidence, in the ordinary acceptation of the word, comes within the meaning of the term as used in s. 191. It must be a statement made in reference to some matter as to which the defendant is legally bound on an oath, or by some express provision of law to state the truth; or it must be a declaration which he is bound by law to make (s. 191); or it must be contained in a legal certificate (s. 197); or in a declaration which is by law receivable as evidence (s. 199). 325. The first head includes all testimony given by a witness in court. As to this, the only questions that can arise are, whether the testimony was given on oath, and whether the witness was legally bound by the oath. An oath is defined by the Code as including "a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a public servant, or to be used for the purpose of proof, whether in a court of justice or not." By Act X. of 1873, s. 6, it is provided that where the witness is a Hindu or Mohammedan, or has an objection to taking an oath, he shall, instead of making an oath, make an affirmation. In every other case he shall make an oath. Section 13 enacts that No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding, or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth." By s. 14, "Every person giving evidence on any subject before any person hereby authorized to administer oaths and affirmations, shall be bound to state the truth on such subject." By the Indian Evidence Act, s. 114, cl. (e), the Court may presume that judicial and official acts have been regularly performed. The result of these provisions is, that the legal obligation to tell the truth attaches to a witness, by the mere fact that he gives testimony as such in a court where he could legally be put on oath, whether in fact he has been sworn or not, and whether the oath has been administered in a binding form or not. Accordingly, in a case where the defendant was charged under s. 193, and no evidence was forthcoming that he had been actually affirmed before giving evidence, the Court, independently of the presumption that he had been affirmed, said: "It seems clear that the offence of giving false evidence may be committed, although the person giving evidence has been neither sworn nor affirmed." 2 This ruling has been applied to cases where the omission to administer an oath or affirmation was intentional and not merely accidental. For instance, the evidence of a child has been held admissible where the judge considered that, although it was incapable of understanding the nature of an oath or solemn affirmation, it was capable of understanding the questions put, and returning rational answers to 1 Section 51; see also Indian Oaths Act X. of 1873, s. 15. 2 Gobind Chandra v. Reg., 19 Cal. 355. them, and therefore recorded and acted on its statement, without oath or affirmation. In all such cases, of course, it is assumed that the statements made are offered as evidence by the person who makes them and are accepted as such by the tribunal which records them. For instance, if a judge, wishing to inform his mind upon any point, were to call upon someone who was present in court, and to put questions to him, without oath or affirmation, it would be fairly open to such a person, if he were indicted under s. 193, to say that he never considered that he was a witness at all, or that his answers were to be treated as evidence in the cause. Supposing this to be made out, it seems to me that it would be a sufficient defence. In short, under s. 13 of Act X. of 1873, the administering or omission to administer an oath or affirmation may be very material as showing that certain answers were or were not treated as evidence, but would be immaterial as rendering what really was intended to be evidence inadmissible, or as diminishing the responsibility of the person who gave it. 326. A witness must not only be bound, but he must be legally bound by an oath; that is, he must have made his statement before an authority legally competent to record a statement on oath. "It seemeth clear that no oath whatsoever taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature, without legal authority for their doing so, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be taken before them, or even before those who take upon them to administer justice by virtue of an authority seemingly colourable, but in truth unwarranted and merely void, can ever amount to perjuries in the eye of the law, because they are of no manner of force, but are altogether idle." Accordingly, where 1 Evidence Act, s. 118; Reg. v. Sewa Bhogta, 14 B.L.R. 294; S.C. 23 Suth. Cr. 12; folld. Reg. v. Shava, 16 Bom. 359; Reg. v. Ram Sewak, 23 All. 90; contra per Mahmood, J., Reg. v. Maru, 10 All. 207, which decision was approved in Reg. v. Lal Sahai, 11 All. 183, to the extent of holding that a judge who considers a witness competent to depose has no option but to administer to him either an oath or affirmation. Even before Act X. of 1873, I have frequently seen the judges of the High Court, at the Criminal Sessions in Madras, receive the evidence of a little child, after directing it simply to be told to tell the truth. My own experience is that such evidence is generally much more to be relied on than that of more mature witnesses. 21 Hawk. P.C. 431. |