1. AHSANUDDIN CHOUDHURY, J.--This rule is directed against the order of the District Judge, Faridpur setting aside the order of the learned Munsif regarding a complaint to be lodged under section 476, Cr. P. C. against the opposite-parties Chandi Charan Pal and Joy Devi Pal.
2. The short facts relevant for our .purpose are as follows :- Opposite-party Chandi Charan Pal filed a suit being Title Suit No, 147 of 1960 in the Court of Sadar Munsif, Faridpur against the petitioner and some others for a declaration that he was the reversionery heir of Madhab Chandra Pal. The land involved in that suit belonged to Madhab Chandra Pal who died leaving a. widow Priya Sukhai Pal. The land by successive transferee passed to the petitioner Osman Ghani who contested the suit. His defence was that Madhab Chandra Pal had another brother named Sristidhar Pal who left three sons, Hari Gopal Pal, Tarak Pal and Mukul Pal. So they are the preferential. Reversionery heirs to the property left by Madhab Chandra Pal.
3. The learned Munsif dismissed the suit of Chandi Charan Pal. But on appeal the judgment and decree of the learned Munsif were set aside and Chandi Charan Pal was found to be the reversionery heir of Madhab Chandra Pal. The second appeal preferred by petitioner Osman Ghani Mia to this Court against the decision of the first appellate Court was dismissed.
4. On 18-2-1963 the petitioner Osman Ghani filed a case being Miscellaneous Case No, 33 of 1963 under section 476, Cr. P. C. in the Sadar Munif Court, Faridpur for lodging a complaint against Chandi Charan Pal and Joy Devi Pal to face a trial under sections 193, 209 and 210, Pakistan Penal Code, as they allegedly gave false evidence in the trial Court that Madhab Chandra Pal had no brother named Sristidhar Pal. The learned Munsif was of the view that a prima facie case had been made out against the opposite-parties and accordingly he ordered that a complaint be filed against the opposite-parties. Against the said order of the learned Munsif an appeal was filed to the learned District Judge, Faridpur who set aside the order of the learned Munsif as regards lodging a complaint for the aforesaid offences against opposite-parties.
5. The learned Advocate appearing for the petitioner in this rule has urged before us that the learned Judge was not right in setting aside the order of the learned Munsif and directing that the complaint be withdrawn and that he has no right to hold that there was no sufficient and good cause for prosecuting the opposite-parties for perjury and that there was no reasonable chance of conviction of the opposite-parties.
6. It has been submitted before us that the petitioner found out some documentary evidence to prove that Madhab Chandra Pal and Sristidhar were two sons of Hiralal Pal who died leaving his two sons and one daughter. Sristidhar was, therefore, full brother of Madhab but the opposite- parties categorically denied that Sristidhar was brother of Mad hab. So they perjured a Court of law in a judicial proceeding and ultimately succeeded in the suit on that fasle evidence even though the opposite-party No, 1 was not a reversionery heir of Madhab because Sristidhar Pal left three sons Hari Gopal, Tarak Pal and Mukul Pal who are the reversionery heirs of Madhab as they are his brother's sons.
7. It may be mentioned here that the petitioner Osman Ghani produced oral evidence in course of the trial of the suit to negative the contention of Chandi Charan Pal that Madhab had no brother named Sristidhar Pal but that evidence was not believed by the Court of first appeal. This Court in second appeal did not interfere with the findings of facts of the first appellate Court. Hence the second appeal to this Court was dismissed.
8. Now the petitioner wants to supplement his case that Madhab had another brother named Sristidhar Pal by two documents, namely, the death certificate and a pass-book. From the mere fact that a pass-book and a death certificate show that one Sristidhar Pal was the son of one Hiralal Pal, it cannot be safely held that this Sristidhar Pal was the full brother of Madhab Chandra Pal who was the son of Hiralal Pal. It is therefore, difficult to hold that Chandi Charan Pal and Joy Devi Pal gave false evidence when they deposed that Madhab Chandra Pal had no brother named Sristidhar Pal. Moreover there is nothing to show that Chandi Charan Pal and Joy Devi Pal had any direct knowledge that Sristidhar Pal was the full brother of Madhab Chandra Pal and that knowing this fact full well they deliberately gave false evidence denying the parentage of Sristidhar Pal.
9. The learned District Judge found that the provisions of Order XVIII, rule 5, C. P. C. were not complied with so far as the deponents namely Chandi Charan and Joy Devi Pal are concerned because there is no endorsement to the effect that the depositions given in the title suit were read over to them. In view of noncompliance of the provisions of law referred to above their depositions are inadmissible in evidence in a subsequent trial for giving false evidence and that oral evidence of its contents is not admissible under section 91 of the Evidence Act. In support of his finding the learned Judge has referred to a case reported in Emperor v. Nabab Ali Sarkar in which the facts were as follows :- "In a rent suit filed in the Court of Third Munsif of Tangail the defendant filed certain dakhilas, with his writteen statement on the 27th January 1923. On the 6th March the Munsif took up the case and inspected the dakhilas, and adjourned the trial. On the 13th instant, when the case was heard, the dakhilas and the list of documents were missing from the record, and were discovered a week after. It was then found that one of the dakhilas had been materially altered. The accused, who was the plaintiff's Tahsildar, was examined in the case, and admitted in cross-examination that the dakhilas and the corrections made therein were in his handwriting. He also admitted that he had erased some figures entered in one of the columns by a mistake, but alleged that the corrections and erasures were made before he granted the document to the tenant. The deposition was not, when completed, read over to the witness in accordance with Order XVIII, rule 5 of the Civil1 Procedure Code. The Munsif thereupon directed the prosecution of the accused under section 466 of the Penal Code, and he was ultimately committed to the Court of Sessions."
10. The jury gave a unanimous verdict of not guilty but the Assistant Sessions Judge of Mymensingh having disagreed with the verdict of the jury made a reference to High Court of Calcutta under section 307, Cr. P. C. The High Court rejected the reference, upheld the verdict of the jury and acquitted the accused.
11. In that case it was held as follows :- "The omission to read over his deposition to the witness in accordance with Order XVIII, rule 5 of the Civil Procedure Code, renders the same inadmissible in evidence against him on his subsequent trial for forgery, and oral evidence of its contents is excluded by section 91 of the Evidence Act."
12. In the instant case, there is nothing to show that the depositions given by Chandi Charan Pal and Joy Devi Pal were read over to them and endorsement to that effect was made. But the learned Advocate appearing for the petitioner has argued that the omission as pointed out will not render their depositions in the Title Suit inadmissible in the subsequent trial against them for giving false evidence because they still assert that Madhab had no brother Sristidhar by name. We are unable to agree with the learned Advocate because the petitioner wants to prosecute the opposite- parties on the ground that they gave false evidence in the Title Suit. But the said depositions cannot be admissible in evidence due to non-compliance of the provisions of Order XVIII, rule 5, C.
13. P. C. in their subsequent trial for giving false evidence and oral evidence of its contents is also excluded under section 91 of the Evidence Act. On this point we respectfully agree with the decision referred to above. Moreover, the Court has got to be satisfied that a prima facie case has been made out and that there is a chance of the conviction of the opposite-parties. The Court will not only be very cautious but also be slow in allowing prosecution against a person or persons on the allegations of giving some false evidence in a judicial proceeding before a Court of law. Before allowing such prosecution, there should be full compliance of the necessary provisions of law. In the present case there is not only non-compliance of some provisions of law as pointed out above, there are also no sufficient and reliable materials for a prima facie case and for a reasonable chance of conviction.
14. There is another aspect of the matter. The application for prosecution against the opposite-parties was filed long after the disposal of the suit, appeal and second appeal when the matter was no more pending in any Court. The petitioner's application suffers from unusual delay and a prosecution on the prayer of an interested party at such a late stage should not be encouraged.
15. For the reasons stated above, we find that the petitioner failed to make out a prima facie case against the opposite-parties under sections 193, 209 and 210, P. P. C. and that the learned Judge rightly set aside the order of the learned Munsif and directed withdrawal of the complaint.
16. The Rule is accordingly discharged. ABDUL HAKIM, J.-1 agree. 51 I L R 236