Rowland, J.This is an appeal u/s 476-B, Criminal P.C. from an order of the District Judge of Muzaffarpur ordering the prosecution of the appellant for an alleged offence under 8. 199, I.P.C., said to have been committed in connexion with a rent appeal pending in the Court of the said District Judge. The appellant is the servant of Babu Umashankar Prasad, who was plaintiff in the suit out of which the appeal arose and was the appellant in the appeal. The respondent was one Rampadarath who happens to be a Head Constable, and at the time relevant to the present prosecution was employed in charge of the Company Bagh town outpost in the district of Bhagalpur.

2. The rent appeal which was presented on 20th July and registered on 26th July 1932 was fixed for 30th August 1932, for appearance and notice was directed to issue on the respondent at his home address, village Gokhulpur in Hajipur Subdivision and Munsifi. The notice was delivered to a peon of Hajipur Munsifi for service, who returned it with a report that it had been served personally on the respondent in village Gokhulpur. The respondent not appearing on the date fixed, the District Judge called for proof of service and the appellant on 12th September 1932 swore an affidavit which was attested by the sarishtadar of the Hajipur Munsifi. In the affidavit he alleged that in his presence the peon made personal service on the respondent who refused to take the notice and give a receipt.

3. Eventually the respondent appeared on 26th November 1932 alleging that he had somehow come to learn of the presentation of an appeal. He put in his vakalatnama and at the same time prayed that the prosecution of the appellant might be directed. On this after calling on the appellant to show cause, the District Judge has ordered a complaint to be filed against him.

4. The majority of the grounds of appeal deal with matters of fact and are to the effect that the respondents contention that he was in Bhagalpur engaged in his official duties on the date of the alleged service of the notice on him should not have been accepted. These have not been seriously pressed. There is undoubtedly direct evidence, and the question whether it is true or not is for consideration at the trial. There are however two points of law taken. The first is that which appears as the very last of the grounds of appeal:

That the affidavit alleged to have been sworn by the appellant was at its best gratuitous and not receivable in law as evidence being sworn before the sarishtadar of the Munsifs Court.

5. The contention as drafted is slightly obscure, but in argument it is urged that the sarishtadar of the Munsifs Court, Hajipur, was under Rule 13 at page 7 of the High Courts General Rules and Circular Orders an Ex Officio Commissioner of Affidavits only in respect of cases arising within and subject to the jurisdiction of the Munsifs Court of Hajipur and as in this case the affidavit refers to an appeal pending in the Court of the District Judge the sarishtadar of the Munsifs Court, Hajipur, had no authority to receive and attest the affidavit and an affidavit sworn before him is not such a declaration as is contemplated by Section 139, that is to say, a declaration which any Court of justice is authorized by law to receive as evidence of any fact.

6. Learned Counsel for the appellant had not at first considered the effect of Rule 15 at the same page which refers to the power vested in District Judges under Clause (c) of Section 139, Civil P.C. District Judges have power to appoint commissioners to administer oath on affidavits generally and without restriction to a particular area or class of case. Whether the sarishtadar of the Munsif of Hajipur was generally empowered in this manner by the District Judge does not appear on the face of the papers before me. There is nothing in the petition of appeal to the effect that he was not so empowered. If there is such an order of the District Judge, the matter ends there.

7. If however the sarishtadar received the affidavit in exercise of the powers conferred on him ex officio by Rule 13 and of no other powers, then no doubt his jurisdiction is limited to matters arising within and subject to the jurisdiction of the Court of the Munsif of Hajipur, but it seems to me that the issue of process through the Nazarat of the Hajipur Munsifi within the Hajipur subdivision and the territorial jurisdiction of the Hajipur Munsifi is a matter arising within and subject to the jurisdiction of the Munsif.

The second point is that there is no finding that it was necessary for the ends of justice to order the prosecution of the appellant and that the circumstances of this case do not warrant the order for prosecution. In support of this ground reference is made to the words of Section 476, Criminal P.C., which enacts that when a Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into an offence of a certain kind, such Court may record a finding to that effect and make a complaint. There is no doubt that the words of the Code contemplate the recording of a finding followed by the making of a complaint.

8. In cases where no such finding has been recorded the appellate Court may be left in doubt as to whether the Court of first instance has really applied its mind to the question whether it is expedient in the interest of justice that there should be a prosecution. Such a case came before the Calcutta High Court in Keramat Ali Vs. Emperor, . The learned Judges said:

I look in vain for any recorded finding to the effect that it is expedient in the interest of justice that an inquiry should be made into the offence in this case. As the learned Sessions Judge has not recorded that finding, I do not feel it incumbent on me to assume that he properly considered this matter and came to a right conclusion. In my judgment, the case is not one which appears to me from a mere existence of contradiction to require, in the interest of justice, that an inquiry should be made.

9. His Lordship allowed the appeal and quashed the proceedings. This case was cited in Surendra Nath Jana Vs. Kumeda Charan Misra, . In this case the order of the District Judge was set aside on the ground of the proceedings of the District Judge being defective. The Judges of the High Court did not themselves examine the facts and expressed no opinion that a prosecution was undesirable as had been substantially done by the learned Chief Justice in the case of Keramat Ali Vs. Emperor, . In the case before me, the learned District Judge has, it is true, not recorded a finding following the precise words of the section as, in my opinion, he should have done, to place his proceedings in the strictest literal conformity with the law, but has stated his conclusion in the following terms:

It appears to me that the affidavit in question is false and fraudulent and the petition should be allowed.

10. The petition was, of course, the petition to direct a prosecution. It seems to me that to set aside the proceedings of the District Judge merely by reason of the absence from his order of the exact words of the section would be an over refinement of technicality and might lead to a failure of justice. On the other hand it would be of no use to remand the case to the District Judge for coming to a finding within the terms of the section as has sometimes been done, for the opinion recorded by the District Judge is to all intents and purposes sufficiently clear. Nor am I of opinion that the District Judge has used his discretion wrongly.

11. It is too easy to cause house service of a process to be effected or even to causa service to be suppressed and to procure a false report of personal service, and such offences which are known to be common are difficult to detect and prove. In my opinion the appeal must fail and it is dismissed.