JUDGMENT : Das, J. - The Petitioners in both these Revisions have been convicted u/s 193, Indian Penal Code and sentenced to undergo R.I. for one month and to pay a fine of Rs. 100/- in default to undergo R.I. for one week. As the facts in both these petitions are identical in nature and originally arose out of one trial, both these petitions were heard together and shall be disposed of by this common judgment. 2. One Bauri Swain of Dengapada alleged that four persons, viz., Kaibalya Naik, Sudarsan Goudo, Gobinda Goudo and Mohadev Malha committed house trespass and theft of certain articles from his house on 30-5-1960 and on his lodging the first information the police charge-sheeted the aforesaid four persons under Sections 457/380 and started G.R. Case No. 174 1 of 1960. In course of investigation the police got recorded the statements of the present Petitioners u/s 164, Code of Criminal Procedure on 3-6-1960 by a Magistrate, where they stated that the four accused in the above G.R. case removed certain articles from the house of the complainant Bauri Swain. At the time of trial, they however resiled from this statement and contended that they were strangers to the village and they had. stated in the 164 statements was based on the information gathered from the villagers who had assembled there in connection with a Jatra. The learned Magistrate who tried the G.R. case acquitted the four accused persons on 24-3-1962 but directed a complaint to be lodged u/s 211, Indian Penal Code against the informant Bauri Swain. He also gave a finding that, the present Petitioners Gangadhar Parida and Khadala Jena who were p.ws. 3 and 2 respectively in the G.R. case had perjured themselves by giving false evidence and directed u/s 479, Code of Criminal Procedure to start prosecution against them for offence u/s 193, Indian Penal Code. The Magistrate filed the complaint on 3-l-1952 stating that these two Petitioners had, in their statements u/s 164, made false statements against the accused persons in the aforesaid G.R. case. 3. At the trial the Petitioners pleaded that their statements at the trial were correct and that those recorded u/s 164 were based on informations gathered from others. 4. The Magistrate filed the complaint on 3-l-1952 stating that these two Petitioners had, in their statements u/s 164, made false statements against the accused persons in the aforesaid G.R. case. 3. At the trial the Petitioners pleaded that their statements at the trial were correct and that those recorded u/s 164 were based on informations gathered from others. 4. As the prosecution was not sure as to which of the statements of the Petitioners was correct, the Court framed an alternative charge against the Petitioners and in support of its case examined four witnesses, viz., the Magistrate who recorded the statement u/s 164, the court peon who administered the oath and the Bench clerk who identified the accused deposing as witnesses and the I.O. obviously to prove that the Petitioners were sent up by him for recording their statements u/s 164. 5. No evidence has been led to prove which of the statements of the Petitioners was correct, or to show that the Petitioners had previous acquaintance with the four accused in the G.R. case, or in fact they saw the incident, but have impressed the fact at the stage of the trial with some ulterior motive. The trial court has not given any finding on any of these points, though the appellate court came to hold that what was stated by the Petitioners during the trial of the G.R. case was false. He maintained the conviction and sentence passed by the trial court. Hence this revision by the Petitioners. 6. Mr. Panda, learned Counsel for the Petitioners, contended that the Petitioners are residents of a different village, Jalkhai some miles away from the village of the complainant. They came to the village on the date of occurrence to see the Jatra and they being strangers to that village, they narrated the story in their statements u/s 164 on 3-6-1960 as they had heard it from the villagers immediately after the occurrence. But when they deposed on 10-3-1962 in the trial of the case, they forgot all about the incident and came forward with a clear explanation that their statements recorded u/s 164 were based upon information gathered from the villagers who talked about the indented at the Jatra. But when they deposed on 10-3-1962 in the trial of the case, they forgot all about the incident and came forward with a clear explanation that their statements recorded u/s 164 were based upon information gathered from the villagers who talked about the indented at the Jatra. It was contended that in the absence of any evidence to show that in fact the Petitioners had any previous acquaintance with the accused persons in the G.R. case, or they identified them at the time of occurrence, it is difficult to accept that what they stated before the Magistrate u/s 164 was correct. In other words his contention is that what was stated u/s 164 by the Petitioners did not represent the correct state of affairs. He further contended that in the absence of clear mention in the 164 statement that the Petitioners saw the accused persons in the act of commission of theft and trespass, it may be taken as mere narration based on either their own knowledge or on the information of others. Though I am not prepared to go to that length as suggested by Mr. Panda, it is certain that there is absolutely no evidence to how that these Petitioners knew the accused persons previously or identified them. In fact, the learned Magistrate who filed the Complaint took the view that not that what was stated in Court was false. He not only acquitted the accused persons, but also proceeded to prosecute the complainant u/s 211 for initiating the false case. It is therefore clear beyond doubt that the Magistrate who recorded a finding u/s 479-A and instituted the complaint took it as a fact that the prosecution case as also the earlier statement u/s 104 by the Petitioners was false and it is the falsity of that statement which made the Magistrate to file the complaint. Section 193 of the Indian Penal Code under which the Petitioners have been convicted penalises a person who intentionally gives false evidence in any stage of a judicial proceeding or fabricates false evidence for the purpose of being used in any stage of the judicial proceeding. Thus the false evidence for the purposes of Section 193, Indian Penal Code, must be given in any stage of a judicial proceeding. Thus the false evidence for the purposes of Section 193, Indian Penal Code, must be given in any stage of a judicial proceeding. If the Petitioners could be found to have given intentionally false evidence at the stage of the trial in the G.R. case then obviously they could come within the mischief of Section 193. But as we have already seen the Magistrate who tried the G.R. case and filed the complaint found that it was the statement made u/s 164 which was false and not that which was made at the stage of the trial. After filing of the complaint no new materials have been placed before the Court to justify the finding of the appellate Court that what was stated at the stage of trial of the G.R. case by these Petitioners was false. I am unable to see on what materials the learned appellate court came to that conclusion. The mere fact that the statement of a witness would help the culprits to escape conviction is by itself no ground to bold that the witness gave false evidence. The learned appellate court was sure that the trying Magistrate had not given a clear finding on the point and he proceeded to clarify it himself. The only ground on which he arrived at this conclusion seems to be that both the statements did not agree. To quote the finding of the learned appellate Court: The next point of objection raised on behalf of the Appellants is that the learned Magistrate has not given a finding in his judgment as to which of two statements of the Appellant is false. Of course the findings of the learned Magistrate is not clear on this point. However, in this appeal as a court of fact I should clarify the matter and give the finding that the evidence given by these Appellant as P.W. 3 in the G.R. case is false. The falsity of his evidence is proved, when his evidence is set against his earlier statement made u/s 164. The statement of the Appellant u/s 164 is true. A finding has to be based upon some evidence. It is not open to a court to come to any arbitrary finding unsupportable by any evidence. In the finding of the learned appellate court there is no reference to any such evidence to justify his conclusion. The statement of the Appellant u/s 164 is true. A finding has to be based upon some evidence. It is not open to a court to come to any arbitrary finding unsupportable by any evidence. In the finding of the learned appellate court there is no reference to any such evidence to justify his conclusion. Again his finding that the statement of the witness made u/s 164 is true runs counter to the complaint itself according to which that statement was a false one. 7. Mr. Panda, contended that the statement made u/s 164 being one in course of investigation and not made in course of a judicial proceeding, a conviction u/s 193 is not sustainable. Fur this he relied upon a Full Bench decision of the Allahabad High Court in Sheo Raj Vs. State where it was held that a record of statement made u/s 164 is not a record of evidence merely because it might be used for certain purpose in a trial before a Court. A Magistrate recording the statement u/s 164 is not authorised by law to take evidence for the simple reason that he is not charged with the duty of deciding any case and there is no matter to be proved or disproved before him. The provisions of the Evidence Act make it clear that no person can claim the status of a witness except in relation to a proceeding before a court. Thus the statement made by a person u/s 164 cannot be said to have been made in relation to a judicial proceeding. 8. In a Full Bench decision of the Bombay High Court in Purshottam Ishvar Amin Vs. Emperor, ., their Lordships observed that a statement recorded by a Magistrate in course of investigation u/s 164 is not an evidence at any stage of a judicial proceeding within the meaning of Section 193, Indian Penal Code. There are authorities who held the view that it is better that a man should escape punishment for having made a statement u/s 164 than he should be induced to believe that it is to his interest however false the statement u/s 164 may have been to adhere to it and thereby to save himself from prosecution. There are authorities who held the view that it is better that a man should escape punishment for having made a statement u/s 164 than he should be induced to believe that it is to his interest however false the statement u/s 164 may have been to adhere to it and thereby to save himself from prosecution. In other words it is better to spare a man from prosecution for making a false statement u/s 164 than to give premium on the false statement and ask him to stick to it at the stage of the trial. In support of his contention that no action in such cases is called for, he relied upon several decisions of different High Courts of India, viz., AIR 1941 Bom. 408, In Re: V. Bayamma and Others. It is however unnecessary to deal with this aspect of the question of expediency of filing complaints on the basis of the falsity of a statement u/s 164 as such statements are not made in course of a judicial proceeding so as to come within the mischief of Section 193, Indian Penal Code. Though alternative charges are permissible under certain circumstances as contemplated u/s 236, Code of Criminal Procedure, Mr. Panda contended that before Section 749-A, Code of Criminal Procedure could be made applicable the judge has to come to a conclusion that the statement made at the trial is false and it is only then that he has jurisdiction to proceed under that section. He relied upon a decision of the Supreme Court in Shabir Hussein Bholu Vs. State of Maharashtra where their Lordships observed that for considering the applicability of Section 479-A what has to be borne in mind is that in a jury trial, it is possible for a judge to come to the conclusion that the statement made at the trial is false. If he comes to that conclusion he has no option but to proceed u/s 479-A(1) But if he is unable to form an opinion one way or the other as to whether the evidence tendered at the trial is false or that before the committing Magistrate is false, different considerations would weigh. If he comes to that conclusion he has no option but to proceed u/s 479-A(1) But if he is unable to form an opinion one way or the other as to whether the evidence tendered at the trial is false or that before the committing Magistrate is false, different considerations would weigh. Their Lordships obsened that the committal proceedings are a stage of the judicial proceeding before the Sessions Judge and therefore, where false evidence is given before the committing Magistrate by a person who is later examined at the trial, the evidence given by him before the committing Magistrate cannot properly be said to have been given in an independent proceeding. The evidence recorded before the committing Magistrate is not deemed to be the evidence recorded at the trial, but the fact remains that the evidence recorded by the committing Magistrate in certain circumstances can be transferred to the record of the trial and taken into consideration in the same way in which the evidence tendered at the trial can be taken into consideration. Their Lordships said that upon that view it would follow that even when the Sessions Judge is unable to say which of the two contradictory statements is false or even where he is of the opinion that the statement before the committing Magistrate is false, it is for him and him alone to act u/s 479-A(1). On the basis of this observation Mr. Panda contended that the only person who was competent to speak about the falsity of one statement or the other is the Court who recorded the finding u/s 479-A(1) and lodged the complaint, and in the present case his finding being that the statement made u/s 164 is false, it is not open to the appellate Court to convict the Petitioners on the ground that the statement made before the Court itself is false. We have already seen that there were no materials even for the lower appellate Court to justify his finding that what was stated at the trial by the Petitioners was false, so as to justify their conviction u/s 193. Further, nothing has been made out to show that the Petitioners intentionally gave false evidence after being aware of the true state of affairs. Further, nothing has been made out to show that the Petitioners intentionally gave false evidence after being aware of the true state of affairs. In view of this position, the conviction and sentence of the Petitioners in both these revisions are set aside, the revisions are allowed, and the Petitioners are directed to be set at liberty. Fines if paid shall be refunded. Revision allowed. Final Result : Allowed