1968 P Cr (PLP)

"the said notice is vague, incompetent and bad in law." In the second, he admitted that his statement in Court that‑ "At that time D'Souza had become the Director and, therefore, he signed it, although he is not described as a director in this letter," was not correct. Along with this second counter‑affidavit he produced from the records of his Company an office directive dated 15‑10‑1956 authorising Mr. A. D'Souza to sign all receipts, bills, survey reports and make all arrangements for holding future surveys during the absence of the Managing Director. He further stated in his second counter‑affidavit that Mr. D'Souza became a Director of his Company on 1‑1‑1957. He concluded hi: second counter‑affidavit by apologizing for the statement in his evidence adding that it was based on erroneous recollection. The learned Single Judge, thereafter, passed a short order on 25‑10‑1962 in these words: "I think that prima f4cie an offence under section 193, P. P. C. has been committed and that it is in the interests of justice and expedient that the witness should be prosecuted. The A.A.‑G. to draft the complaint which should be signed and pursued by the Additional Registrar."

3. On 26‑6‑1963 the Additional Registrar of this High Court filed a complaint under section 193, P. P. C. against the appellant in the Court of the City and A.D.M., Karachi. In this complaint, for the first time, the alleged mis‑statements made by the appellant in his evidence at the trial of Suit No. 77/57 before the learned Single Judge were set out. These statements are‑ "(1) On 21st July 1956, somebody from our office signed the summary survey Exh. 70 in the Civil Suit. On the 23rd Ju13 1956, we sent the letter Exh.

9. It is signed by D'Souza although he was not authorised to sign it. Exh. 9 was meant to cancel the summary Exh.

70. D'Souza had signed Exh. 9 under my orders. I did not want him to write a letter but expected him to go and bring back the summary survey, Exh. 22 which is a letter dated 18‑10‑56 was written to make it clear that no body of our office was authorised to sign excepting the Director. (2) At that the D'Souza had become a Director and, therefore, he signed it although he is not described as a Director in this letter. There are no rules of our Organisation, nor any written instructions, but we follow the rules of Lloyds and they provide that for survey purpose no body will sign except Director or any senior surveyor to whom a power of attorney is given. Those rules are with me in the office which I shall produce. (3) Both of them are still in service now. I have not taken any action against them because I thought that they have acted in good faith and did not inform me of it" :‑ a statement made in cross‑examination by the appellant which as stated in the complaint is contrary to an earlier statement of his in examination‑in‑chief in which he stated that D'Souza and Mathew had no authority to sign Exh. 70 (Survey Summary Report) and Exh. 60 (Certificate) respectively.

4. It has been urged before us by the learned counsel appearing on behalf of the appellant that (1) grave prejudice has been caused to his client by the omission in the Show‑cause Notice of any of the alleged mis‑statements or false allegations made by his client in the course of his evidence and (2) having regard to the advanced age of his client who is now 68 years, the fact that he gave evidence in Court five years after the events in question and the fact that because of his old age he had retired from his Company in 1963, had obtained his income‑tax clearance and was on the point of sailing for his home in England when a summons from the Criminal Court was served upon him thus detaining him here for a further period of 3 years, it would certainly not be expedient or in the interests of justice that he should now be prosecuted.

5. With regard to the first contention urged on behalf of the appellant we find that the Show‑cause Notice served upon him under section 476, Cr. P. C. disclose no details and none of his alleged mis‑statements. We have earlier in this judgment set out the contents of this notice and we have shown there that all that it had said was that the appellant had knowingly made several mis‑statements and false allegations. Now, this point as to the necessity of a notice under section 476, Cr. P. C. has received judicial recognition and the consensus of the rulings appears to be that although such a notice is not strictly necessary in law, yet it is desirable and expedient to give adequate notice to a person sought to be proceeded against under this section. The reported cases go on to state that although omission to issue a notice is not by itself a ground for setting aside an order passed under this section, yet if it can be shown that such omission has resulted in prejudice to the person complained against an order for prosecution can be set aside. In 47 Cr. L J 545 it was held by a Bench of the Allahabad High Court that‑ "Although the plain terms of section 476, Cr. P. C. do not insist upon notice, nevertheless, it is highly desirable that such notice should be given Great care and caution are required before the Criminal Law is set in motion and there must be a reasonable foundation for the charge in respect of which a prosecution is sanctioned." In an earlier case reported in 36 Cr. L J 319 it was held by the Oudh Chief Court that although there is nothing in the provisions of section 476, Cr. P. C. making it obligatory on the Court to issue notice before taking action under that section, yet it is most desirable that such notice should be given in order to give the accused an opportunity to offer any explanation which he might be in a position to give. It was further suggested in this ruling that where an accused can show prejudice because of want of notice under section 476, Cr. P. C. the proceedings against him may be set aside on the ground of want of notice. Hence, in this particular case, it seems to us that as a result of the very inadequate and incomplete notice served upon the appellant it may well be argued on his behalf that he has been prejudiced for want of sufficient notice. We have already pointed out above how in his very first counter‑affidavit in reply to this Show‑cause Notice he has pleaded that‑ "the said notice is vague, incompetent and bad in law." We have, therefore, reached the conclusion that the insufficiency of the Show‑cause Notice in this case is a good ground for quashing these proceedings now pending in the Criminal Court against the appellant.

6. But, this is not all. We have examined the mis statements as set out in the complaint and reproduced in this judgment above. The first and the second of these alleged mis‑statements relate to the precise position occupied by Mr. D'Souza in Messrs G. B. Potts & Co. Ltd. in July 1956 and whether he was then in a position of authority to sign for and on behalf of the company, The appellant giving evidence in March 1961 could not be expected to remember the precise position held by Mr. D'Souza in his Company five years earlier in July 1956 and hence he cannot be taken to task for describing him as a Director at that time. Along with his second counter‑affidavit the appellant produced an office directive dated 15‑10‑1956 showing that as from that date Mr. D'Souza was authorised to sign all bills, receipts and survey reports in the absence of the Managing Director. He also explained in this counter‑affidavit that Mr. D'Souza became a Director of his Company on 1‑11‑

57. It seems to us that these divergent statements made by the appellant in the witness box is the course of the trial of Suit No. 77/57 as to the precise position held by Mr. D'Souza in his Company in the year 1956 are due to a lapse of memory or as he himself describes it "erroneous recollec tion" but, certainly, cannot be held to be intentional or maliciously false statements. Similarly, the third alleged mis statement as set out in the complaint and also reproduced above as to the relations existing between the appellant as Managing Director of Messrs G. B. Potts & Co. Ltd. and Messrs D'Souza and Mathew the two employees of the said Company cannot be held to be the result of malice, or a desire on the part of the appellant to wilfully give false evidence. It is fortunate that a member of the Bench hearing this Criminal Appeal was also a member of the Division Bench which heard and disposed of L. P. A. No. 85/61 filed by Messrs American President Lines Ltd. against the judgment of the learned Single Judge in Suit No. 77/57. Having heard that the appeal in extenso for over three weeks only a couple of months ago the two documents, namely, the Survey Summary Report (Exh. 70) and the Certificate (Exh. 60) both of which are referred to in the complaint filed against the appellant are fresh in the mind of one of us and there can be no question of the appellant intentionally, wilfully and maliciously giving false evidence in regard to these two employees of his, who signed Exhs. 60 and 70.

7. An essential ingredient for the grant of sanction to a prosecution for Perjury is that such a prosecution should be expedient and in the interests of justice. The Case‑Law on section 476, Cr. P. C. also requires that there should be some probability of the prosecution ending in a conviction. In I L R 26 Mad. 1116 it was stated that‑ "Unless there is sufficient prima facie evidence and a reasonable probability of conviction the Court giving the sanction or upholding it will not be properly exercising the discretion vested in it by law and the safeguard provided by law against vexatious or frivolous prosecutions of parties resorting to Court and of witnesses attending and giving evidence in Courts of Justice in discharge of a public duty imposed upon them by law will be rendered nugatory." In this case the appellant before us is an old man of 68 years of age who three years ago had retired from his Company and having obtained his income‑tax clearance was returning for good and all to his home in England when the present criminal prosecution was filed against him. The Show‑cause Notice was issued to him on 17‑1‑1962 and thus for these past four years he has endured mental harassment, uncertainty and an enforced stay in this country since the Summer of 1963. In view of these circumstances and our own conclusion as to the inadequacy of the Show‑cause Notice served upon him and the feeble and enormous mis‑statements made by him due to lapse of memory, it seems to us that it would certainly not be expedient or in the interests of justice to order his prosecution for the offence of Perjury. For these reasons, eve reached the conclusion in Court that this appeal should be allowed and, therefore, passed a short order to this effect. This judgment contains the reasons for that short order. Appeal allowed.