State Of Bihar v. Bijli Pathak — 1959 DIGILAW 123 (PAT)

Judgment S.C.Misra, J. 1. This proceeding has been started against two persons, Bijli Pathak and Jogendra Singh, on a notice issued by this Court on the 27th of January, 1959, calling upon them to show cause why a complaint should not be filed against them on the allegation that they had given false evidence in G. R. Case no. 794/Tr. 39 of 1957 Sn the Court of Mr. B. N. Misra, Judicial Magistrate, 1st Class, Muzaffarpur. Both these persons deposed in a case under Sections 304A and 279, Indian Penal Code, in which one Sarwan Rai was made an accused on the charge of rash and negligent driving of a bus BRF 683 of which he happened to be the driver. In the morning of the 28th of June, 1957, the bus knocked down a cyclist who succumbed to his injuries. The learned Magistrate tried the accused Sarwan Rai and by his judgment dated the 3rd June, 1958, convicted him and sentenced him to undergo rigorous imprisonment for a period of a years. Sarwan Rai preferred an appeal against his conviction and sentence. The learned Sessions Judge of Muzaffarpur dismissed the appeal but reduced the sentence to a period of one year only. Sarwan Rai preferred an application in revision to this Court which was numbered as Criminal Revision No. 872 of 1958. A learned single Judge of this Court acquitted Sarwan Rai on the 27th of January, 1959, but issued the above notice to the opposite party. They have appeared and shown cause in which they state in substance that they did not give false evidence before the learned judicial Magistrate. The accused-driver was neither known to them nor did they have any other motive to give false evidence to save him from punishment. It has also been pointed out in the show cause petition that they were not declared hostile nor did the defence lawyer put any question to clarify the position. 2. It may be stated that this Court acquitted the accused. Sarwan Rai, on the ground that Bijli Pathak and Jogendra Singh, who were P.Ws. 1 and 6 respectively before the learned Magistrate, did not identify the accused and did not give incriminating evidence against him. 2. It may be stated that this Court acquitted the accused. Sarwan Rai, on the ground that Bijli Pathak and Jogendra Singh, who were P.Ws. 1 and 6 respectively before the learned Magistrate, did not identify the accused and did not give incriminating evidence against him. The statement made by them before the police Or their identification of the accused at the test identification parade could not be treated as substantive evidence and no conviction could be based of an accused person on such evidence. The two courts below relied upon the identification of the accused by the witnesses at the test identification parade which was supported by the testimony o£ the Magistrate in charge of the parade. They also accepted their statement before the police that the accused-driver endeavoured to overtake another bus which was going ahead and thus the deceased cyclist got between the two buses and was knocked down by the bus driven by Sarwan Rai. In the learned Magistrates Court, however, the evidence of Bijli Pathak was to the effect that at the time of the accident he was travelling in the bus going ahead but at a point beyond Saraiya, another bus came from behind and wanted to overtake this bus and in this Ramji Ojha, who was a cyclist, got crushed. So far as this witness is concerned, he identified the accused, no doubt, as the person who was driving BRF 683 in his exami-nation-in-chief, but in cross-examination he changed his version to this extent that he stated that he did not identify Sarwan Rai as the driver of BRF 683 but as the driver of certain vehicles. He never saw him driving a bus; but his statement in the first information report lodged by him was that BRF 683 was the offending bus the driver of which wanted to overtake another bus and thus crushed Ramji Ojha to death. The accused was the driver of that bus. So far as Jogendra Singh is concerned, he stated that the man was crushed by BRF 683 coming from behind, referring to the bus driven by the accused Sarwan Rai, but said further that he did not identify the accused before the Magistrate as the person who was driving the bus. The accused was the driver of that bus. So far as Jogendra Singh is concerned, he stated that the man was crushed by BRF 683 coming from behind, referring to the bus driven by the accused Sarwan Rai, but said further that he did not identify the accused before the Magistrate as the person who was driving the bus. He stated further in his examination-in-chief that it was not a fact that he was telling a lie in the Court and that he had been won over by the accused. The learned Judge of this Court thus acquitted the accused, Sarwan Rai, on the ground that neither of the two witnesses gave any evidence against Sarwan Rai specifically as the driver of the bus which caused the accident and which resulted in the death of the cyclist, Ramji Ojha. Both of them gave evidence with regard to the test identification parade which was contrary to what the Magistrate stated as, according to the latter, Sarwan Rai was identified by the witnesses as the driver of BRF 683 although in Court they stated that they had not identified the accused before the Magistrate holding the test identification parade. It is true, no doubt, that Bijli Pathak stated in the first information report that Sarwan Rai was the driver of the bus BRF 683, causing this accident. He repeated it before the police and also identified the accused as the driver of the offending bus before the Magistrate holding the test identification parade. Jogendra Singh also identified the accused as the driver of BRF 683 before the Magistrate holding test identification parade. But in Court both of them in substance resiled from that statement as discussed above. The point for decision is whether they can be proceeded against for giving false evidence -merely on account of these contradictions. Learned counsel for the opposite party has urged that if there was any false evidence given by these witnesses in the Court of the learned Magistrate, they should have been declared hostile by the Public Prosecutor or an attempt should have been made by him for their re-examination in order to clarify the position. The statement which they made must have been either in confusion or the learned Magistrate himself might have misrecorded it. I am unable to accept the explanation urged by the learned counsel on behalf of the opposite party. The statement which they made must have been either in confusion or the learned Magistrate himself might have misrecorded it. I am unable to accept the explanation urged by the learned counsel on behalf of the opposite party. It is difficult to hold that the learned Magistrate misrecorded the statement. The contradictory statements made by the two witnesses referred to above are palpably there and the question of misrecording by the Magistrate and a statement made in confusion by the two witnesses does not arise in view of the evidence given by them. It is true, no doubt, that the lawyer for the State did not do his duty properly in not having them declared hostile and cross-examined them. That, however, is not conclusive in deciding whether it is a fit case for proceeding against them on a charge of giving false evidence In Court. 3. Apart from the above, however, there is yet anotiier material consideration before any corn-plaint under Sec. 476, Code of Criminal Procedure, may be filed against the opposite party for having committed an offence under Section 193, Indian Penal Code. Sec. 476, in so far as it is relevant, runs as follows: "When any Civil, Revenue or Criminal Court is, whether an application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Sec.195, Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the. first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate ..... first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate ..... The present case is rather a peculiar one in the sense that the evidence of the two witnesses given in Court before the trying Magistrate has not been disbelieved by the learned single Judge of this Court in substance. It has been held that the petitioner Sarwan Rais conviction could not be up held because neither of the two witnesses gave in Court incriminating evidence against him, and that alone would be substantive evidence. The Courts below were in error in relying upon their statements, in the first information report and before the police, and the identification of Sarwan Rai by them before the Magistrate at the test identification parade. Since the two witnesses did not give any incriminating evidence against Sarwan Rai in the Sessions Court, the conclusion must be that there was no evidence against him and accordingly his con-viction, was not upheld. In the normal run of cases of giving false evidence, the testimony of a witness before the Court is disbelieved and, putting it alongside the previous statement of. the witness, it is thought expedient if the demands of justice so require to start a prosecution, against the witness for perjury. This may happen in a number of contexts. For instance, when a witness has made a certain statement in the committing Court and states something contrary in the Sessions Court and his evidence in the committing Court is tendered under Sec.288, Code of Criminal Procedure, and his attention is drawn to it to explain the con-tradiction the Sessions Court may accept the statement of the witness before the committing Court and may Order prosecution of the witness for giving false evidence before it in course of the Sessions trial. Another class of such cases is when a witness makes certain statement before the police which runs counter to his evidence in Court. Another class of such cases is when a witness makes certain statement before the police which runs counter to his evidence in Court. Other witnesses depose truthfully and their statements are accepted by the Court in relation to which the testimony of the witness in question is found to be false, and in that case a prosecution of the witness is ordered. In civil cases, likewise, the evidence or a witness may be found to be definitely false in relation to certain documents which are relied upon by the Court as reliable and in relation to which the witness giving false evidence can be held to have prima facie given false evidence. In every case, however, the Court ordering a proceeding under Sec. 476, Code of Criminal Procedure, against a witness comes to a definite conclusion that the witness has given perjured evi dence and has not acted upon the testimony of that witness. The present case, however, is of an ano malous character in the sense that the learned single Judge has not held that the false evidence given by these witnesses cannot be acted upon; on the contrary, the learned Judge has acted upon the evi dence in so far as it has been found that there was no incriminating evidence against the petitioner Sarwan Rai. This gives rise to a ticklish position: whether a Court can order prosecution of a witness whose testimony in the Court has not been dis believed. Sir John Beaumont had occasion to con sider this question in the case of Ningapa Ramappa V/s. Emperor, 43 Bom LR 864: (AIR 1941 Bom 408), and in the case of Emperor V/s. Sultansha Sidisha, AIR 1940 Bom 385. In Ningappas,case 43 Bom LR 864: (AIR 1941 Bom 408) referring to the decision of Sir Lawrence Jenkhis in the case of Emperor V/s. Tripura Shankar Sarkar, ILR 37 Cal 618 (SB), and relying upon it, the learned Chief Justice came la the conclusion that before prosecution is ordered of a person the Court must come to a conclusion which of the two statements made by the witness is false; and, in particular, the Court must be in a position to say that the statement made in Court is false. The reasoning which appealed to the Court in that case was that if a witness made a false statement at a previous stage, as for instance, while the witness was examined under Sec.164, Code of Criminal Procedure by a Magistrate and he made a statement which was contradictory to the statement made by him in course of the trial, there was no reason why he should not avail himself of the opportunity of a trial, when he is examined, and give truthful evidence if he made false statement before the Magistrate under Sec.164 under some kind of pressure or inducement. It is, however, unnecessary for me to consider this case more fully, although I may observe that the ratio decidendi in Ningapa Ramappas case 43 Bom LR 864: (AIR 1941 Bom 408) appears to me to be sound, inasmuch as the present case is governed by a new provision in the Code of Criminal Procedure incorporated as Section 479A. This section, which was added by Act 26 of 1955, appears to override the provisions of Sections 476 to 479 in so far as there is a distinct provision in this section which relates to giving of false evidence or fabricating false evidence for the purpose of being used in any stage of a judicial proceeding whether before a Civil, Revenue or a Criminal Court. The scope of Sec. 476 is much wider than Sec. 479A as it makes reference to Clause (b) or (c) of Sub-section (1) of Sec.195, which covers numerous sections of the Indian Penal Code. Sec. 479A, however, has a narrow scope inasmuch as it governs only cases of perjury jn a Court of law or fabricating false evidence for the purpose of being used in a Court of law. The decisions in the cases of Parshottam Lal L. Virbhan V/s. Madan Lal Bashambar Das, AIR 1959 Punj. 145 following Jai Bir Singh V/s. Malkhan Singh, AIR 1958 All 364 ; In re K. Narahari Pillai, AIR 1959 Andh. Pra. 51 and Narajappa V/s. Chikkaramiah, AIR 1959 Mys 117 have laid down that in view of the provision of Sub-section (6) of Section 479A, the applicability of Sec. 476 to the case of perjury in a Court of law is excluded and the procedure provided in Sec. 479A alone will apply for dealing with the cases of perjury. Pra. 51 and Narajappa V/s. Chikkaramiah, AIR 1959 Mys 117 have laid down that in view of the provision of Sub-section (6) of Section 479A, the applicability of Sec. 476 to the case of perjury in a Court of law is excluded and the procedure provided in Sec. 479A alone will apply for dealing with the cases of perjury. Sec. 479A(1) runs as follows : "Notwithstanding anything contained in sec-tions 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for, the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate: Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer o£ the Court as the Court may appoint." In Sub-section (6), it lays down that no proceeding shall be taken under Sections 476 to 479 inclusive for the prosecution of a person, for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this section. Subsection (5) confers the same powers upon the appellate Court as would be exercisable by the trial Court and a fortiori, the same power to be exercisable by the revisional Court. Subsection (5) confers the same powers upon the appellate Court as would be exercisable by the trial Court and a fortiori, the same power to be exercisable by the revisional Court. It has been held than since Sec. 479A has imposed a duty on the Court to record a finding at the time of delivery of the judgment or final order to the effect that the witness has given false evidence and that it is expedient in the interest of justice that he should be prosecuted and punished for perjury and make a complaint thereafter in writing signed by the presiding officer of the Court, there cannot but be an adjudication on merits in the judgment itself. It is only when that matter has been gone into by the trial Court that there can be adjudication for that matter by the appellate Court; and that is the reason why the legislature has provided automatic stay of the trial on the complaint filed by the presiding officer of the Court before a Magistrate pending disposal of the appeal. Where, however, such a- procedure has not been adopted, Section 479A of the Code cannot be resorted to. In the present case, as I have already stated, the learned single Judge did not record in his judgment his opinion that the evidence given in Court was false and if anything, he accepted that evidence as true and hence concluded that the case against the petitioner Sarwan Rai was not made out. He acquitted him on that ground; and there is no material, therefore, on which it can be said that the two opposite parties had given false evidence as P. Ws. 1 and 6 in course of the trial of Sarwan Rai. An argument was raised in the Allahabad ( AIR 1958 All 364 ) and Punjab (AIR 1959 Punj 145) cases (supra) that if the above view is accepted and if evidence is discovered later on that a particular person had given false evidence, he cannot be prosecuted for perjury. I agree with the opinion expressed by the learned. Judges of the two High Courts that if the Legislature laid down in clear terms that the Procedure Prescribed in Sec. 479A alone governs the cases of perjury, there must be strict compliance with the requirement of that section. I agree with the opinion expressed by the learned. Judges of the two High Courts that if the Legislature laid down in clear terms that the Procedure Prescribed in Sec. 479A alone governs the cases of perjury, there must be strict compliance with the requirement of that section. In fact, the object in enacting that section was to obviate the delay inherent in launching prosecutions under Sec. 476 of the Code. With regard to the right of appeal under Sec. 476 B which was a cumbrous proceeding; now the Legislature has provided something speedier in Sec. 479A. That being the object of Sec. 479A, the clear wording of the section must be adhered to and, in any case, as the learned Judges of the Punjab High Court observed, in the present case also no fresh evidence has been discovered and it is accordingly unnecessary to consider that aspect of the question. 4 In the result, the rule issued against the opposite party to show cause why they should not be prosecuted for giving false evidence must be discharged. Tarkeshwar Nath, J. 5 I agree.