JUDGMENT Lindsay, J.
1. This is an application on behalf of one Jalpa Prasad, who was convicted in the Court of a Magistrate of an offence under Section 211 of the Indian Penal Code. The conviction has been maintained in appeal by the Sessions Judge.
2. Two questions have been raised on behalf of the applicant. It is contended in the first place that there is no evidence on the record to support the finding that the accused is the person who sent a certain written report, Exhibit A, to the Thana in which was contained an allegation against one Moinuddin that he had been concerned in a case of riot. The second question is whether or not the prosecution was maintainable in the absence of sanction with reference to the provisions of Section 195 of the Code of Criminal Procedure.
3. The facts alleged for the prosecution were as follows:
4. On the 13th of July 1918 a man named Pitai came to the Police Station at Serai Mamrez and handed in a written report, in which there were allegations that certain persons had committed the offence of riot, one of them being a Zemindar named Moinuddin The written report was read out to Pitai by the Police Officer to whom it was brought and as he heard it Pitai informed the Police that Moinuddin was not present at the riot and he, Pitai, was not responsible for making any charge against Moinuddin, The Police made an enquiry and sent in what is called naksha B, in other words they found that there was no sufficient evidence forthcoming to justify the prosecution of the case.
5. When Pitai was examined by the Police at the time he brought the written report, he stated that the report liad been written by Jalpa Prasad, the present accused. After the Police had refused to send the case up for trial, Moinuddin brought a complaint under Section 211 against both Jalpa Prasad and Pitai. Pitai was acquitted by the Magistrate and Jalpa Prasad has been convicted. Jalpa Prasad's story was that he had. not written the report which Pitai brought to the Police Station. The first and principal question for decision, therefore, was a question of fact, namely, whether or not Jalpa Prasad was the writer of this document. The learned Judge in his judgment has discussed the evidence at length and to put the matter shortly, he classifies the evidenoe on this issue under three heads:
(1) The statement of certain witnesses who professed to have been present or close by at the time Jalpa Prasad wrote the document. This evidence has been rejected by the learned Judge as altogether unreliable.
(2) Evidence in the nature of opinion to prove that the document Exhibit A is in the handwriting of Jalpa Prasad, and (3) The statement which Pitai made to the Police at the Thana after the written report had been read out to him.
9. With regard to this latter statement the judgment of the Court below seems to me to be inconsistent. In two places in the judgment the learned Judge states that the statement which was made to the Police Officer' at the Thana by Pitai was not admissible in evidence against Jalpa Prasad his accused. On the other hand he states in another place that the statement can not be excluded from evidence because in the opinion of the learned Judge it was admissible as part of what the learned Judge calls the "res gestae".
10. It is apparent that this statement made by Pitai at the Polios Station was not admissible, on he ground that Pitai was not a witness in the case but was, as has been said, a co-accused who was under-trial at the same time as Jalpa Prasad. It is not pretended that the statement referred to was made in the course of any confession which 'might under the provisions of the Evidence Act be taken into consideration against his co-accused Jalpa Prasad. As for the learned Judge's opinion that the statement was admissible as part of the resgestse, I am unable to agree with him. It is unfortunate that an expression so ambiguous as resgestse was used in discussing this part of the case. If the statement made by Pitai to the Police was admissible at all, it could only have been admissible under Section 6 of the Evidence Act, which lays down that ' facts which though not in issue are so connected with the fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places." This provision of the Evidence Act enacts the law which is usually laid down in England in these terms, namely, that acts, declarations and incidents which constitute or accompany and explain the fact or transaction in issue, are admissible for or against either party as forming part of the res gestse. It is difficult to understand how it can be said that the statement made by Pitai at the Police Station forms part of the transaction which was under investigation in this case, namely, the sending of a false report by Jalpa Prased to the Thana. It is not suggested that Jalpa Prasad and Pitai were acting in collusion or were in any way conspiring together for the purpose of bringing a false charge against Moinuddin. Had this been the case, it might perhaps have been said that the statement made by Pitai, with reference to an act which was done in pursuance of the common intention, was relevant as constituting a part of the transaction under investigation. That, however, is pot the case, for, all that the evidence shows is, that as soon as Pitai came to know that a charge was being made against Moinuddin he disclaimed all intention of having made any statement imputing any part in the riot to Moinuddin. It is quite clear to me, therefore, that the statement which Pitai made at the Thana was in no way part of the transaction under investigation and as such was not admissible under Section 6 of the Evidence Act.
11. There only remains to discuss the other class of evidence in the case, namely, the evidence of identity of the handwriting. It appears that when the accused was under trial in the Magistrate's Court, he called upon the accused to write out in Court the text of the report which was brought by Pitai to the Thana. Whether or not the accused tried to disguise his writing when he was called upon by the Court is a matter of uncertainty, but at any rate it seems clear to me that there is not the faintest resemblance between the writing so produced and the writing Which is to be found in the report Exhibit A, and it would be quite impossible for any Court to say on comparison of these two writings that the writing in Exhibit A is the writing of Jalpa Prasad. Three rent receipts were produced in Court which apparently were considered to be in the writing of the accused. I can find no direct proof on the record that they were as a matter of fact written by Jalpa Prasad, but assuming that they were, it is to be observed that here again there is not the least resemblance between the two writings. There is indeed the statement of a witness Ghulam Husain, who declares his opinion that, the writing on Exhibit A is the writing of Jalpa Prasad. His statement on this point reads as follows:
I saw his (Jalpa Prasad's) handwriting thousands of times. I also saw him in the act of writing. I can identify his handwriting. Exhibit A is in the handwriting of Jalpa Prasad. More than 20 years ago in an arrears for rent suit of Tahsil Handia I identified a receipt written by Jalpa Prasad.
12. In cross examination the witness had to admit that he and Jalpa Prasad had not been living or working together for 20 years. He further stated that Exhibit A was in the ordinary writing of Jalpa Prasad written with a stout pen and that the writing was of the same character as it was 20 years ago. This evidence, in my opinion, is of no value whatsoever and does not assist the prosecution for the purpose of establishing that Jalpa Prasad was responsible for the writing of the report. I must hold, therefore, in favour of the applicaint that the evidence fails to establish that he is the person who wrote the report which forms the subject matter of this complaint. This being so, it is unnecessary for me to deal with the other question, namely, whether or not the prosecution was maintainable without an order passed under Section 195 of the Code of Criminal Procedure. 1 allow the application, set aside the conviction and sentence and direct that the accused be released from the bail which has been granted to him by this Court.