Mutum Iboton Singh v. Moirangthem Yaim Singh — 1962 DIGILAW 2 (GAU)

ORDER :- This is an application in revision filed by one Mutum Iboton Singh under section 439 Cr. P. C. to set aside the order of Additional Sessions Judge (II), dated 3-1-1962 by which he rejected the application made by the State to file a complaint for perjury under section 476 Cr. P. C. against Moirangthem Yaima Singh and Pheiroijam Chaoba Singh, who were P. Ws. 15 and 4 respectively in Sessions Trial No. 14/4/1961 before the said Judge. The State has not appealed against the said order of the Additional Sessions Judge. (II) as they could have done under section 476-B Cr. P. C. if they felt that the interests of justice required it. The petitioner who is a relation of the deceased Mutum Yaima Singh, for whose murder certain persons were charged in the Sessions Court and were acquitted by the Sessions Judge in the said Trial, has come forward with this revision petition. 2. The facts leading to the application are briefly these: Mutum Yaima Singh was murdered on 3-12-1960 by certain villagers of Samurao village. In the course of the investigation, the Police took Moirangthem Yaima Singh and Pheiroijam Chaoba Singh on 7-12-1960 and 9-12-1960 respectively before Shri Gokulchand Singh, Magistrate, First Class and had their statements recorded on oath under section 164 Cr. P. C. Moirangthem Yaima Singh stated in the said statement that he saw Yumnam Kalachand Singh and Yumnam Nabin Singh, (who were subsequently made two of the accused persons in the Sessions Trial) come rushing to the place and raising shouts "Beat the thief" and saw Mutum Yaima Singh being hit on the head with a stick. But when this person was later examined in the Committing Court he stated that he did not see anybody directly assaulting the deceased Mutum Yaima Singh from the beginning of the occurrence to the end. Again, when examined in the sessions Court as P. W. 15, he denied that he saw the said Yumnam Kalachand Singh and Yumnam Nabin Singh rushing or shouting "Beat the thief" and or that Mutum Yaima Singh was hit on the head with a stick. With regard to Pheiroijam Chaoba Singh, he stated in the statement under section 164 Cr. P. C. that Sagolsem Angahal Singh, Salam Kula Singh, Salam Ningthemjao Singh, Yumnam Ibochouba Singh and Yumnam Nabin Singh were the important leaders in the occurrence. With regard to Pheiroijam Chaoba Singh, he stated in the statement under section 164 Cr. P. C. that Sagolsem Angahal Singh, Salam Kula Singh, Salam Ningthemjao Singh, Yumnam Ibochouba Singh and Yumnam Nabin Singh were the important leaders in the occurrence. The said 5 persons were the accused in Sessions Trial. Chaoba Singh also stated that the bloodstained cloth and stick were seized by the Police in his presence. But he denied all this in the Committing Court as well as in the Sessions Court when examined as P. W. 4 and further said in the Sessions Court that he was not an attesting witness of any seizure of blood-stained stick and blood-stained cloth. 3. In the Sessions Court, after the trial was over, the Public Prosecutor stated that the evidence was meagre against all the accused for establishing the case against them, but he stated that he would move the Court for prosecuting some of the witnesses for giving false evidence. The Sessions Judge has mentioned this in his judgment and added that the matter will be considered when a regular petition was filed. He acquitted all the accused persons by his judgment. In doing so, he accepted the evidence given by P. Ws. 15 and 4 and he even made certain adverse remarks against the investigating Officer and he even felt that the said I. O. was guilty of replacing the original Case Diary and preparing and substituting a fresh Case Diary after the charge sheet in the case was filed. The Sessions Judge did not express anything against P. Ws. 15 and 4 in his judgment and no action was evidently considered necessary by him against P. Ws. 15 and 4 to be taken under section 479A Cr. P. C. 4. After the judgment was delivered on 23-8-1961 the Public Prosecutor filed the application under section 476 Cr. P. C. to prosecute P. Ws. 15 and 4 for giving false evidence before the Court. P. Ws. 15 and 4 opposed the said application and stated that what they stated in the Sessions Court and in the Committing Court was true and that their statements made under section 164 Cr. P. C. to prosecute P. Ws. 15 and 4 for giving false evidence before the Court. P. Ws. 15 and 4 opposed the said application and stated that what they stated in the Sessions Court and in the Committing Court was true and that their statements made under section 164 Cr. P. C. were false and were made on threat of and pressure from the I.O. In dismissing the application, the learned Sessions Judge remarked that he could not give a definite finding in his judgment that the statements of the two witnesses before his Court and before the Committing court were false, but that he entertained a doubt as to the truth of the statements recorded under section 164 Cr. P. C. and hence he left the matter for consideration when an application was made for prosecution by the Prosecuting Advocate. The learned Judge found that both the witnesses had given inconsistent statements and that either of the statements must be false, but he relied on the decision Ningappa Ramappa v. Emperor, AIR 1941 Bom 408 and stated that the falsity of the statements before the Committing Court and the Sessions Court, could not be fully established and further that it could not be ruled out that the statements under section 164 Cr. P. C. were given under Police influence and hence he did not consider it expedient to make a complaint for prosecution under section 193 I.P.C. He further said that any complaint under section 476 Cr. P. C. was barred in view of section 479-A sub-clause 6 Cr. P. C. 5. The latter part of the order of the Sessions Judge stating that section 479-A (6) bars an application under section 476 Cr. P. C. is not correct. Section 479-A (6) no doubt provides that no proceedings 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 section 479-A. Section 479-A was brought in by an amendment of the Cr. P. C. in" 1955. Until then prosecution for giving false evidence committed in or in relation to a proceeding in a Court was provided for under sections 476 to 479 Cr. P. C. in" 1955. Until then prosecution for giving false evidence committed in or in relation to a proceeding in a Court was provided for under sections 476 to 479 Cr. P. C. But the Legislature felt that in certain cases of false evidence which were flagrant and given in any stage of the judicial proceeding itself, Courts, should be given for the purpose of eradication of perjury certain additional powers to take prompt action and for the said purpose section. 479-A was enacted by which a Court if it considered it expedient that a witness should be prosecuted for the offence of perjury committed in the course of the judicial proceeding, shall at the time of delivery of judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and then proceed to make a complaint. A reading of sections 476 and 479-A, together will clearly show that section 476 covers a much wider field and is not confined to the case of witnesses alone as in section 479-A. Nor is it confined to perjury committed "at any stage of a judicial proceeding", but to cases "in or in relation to a proceeding in the Court". This means that the proceeding need not even be judicial and the words "in relation to a proceeding" in sec. 476 is much wider than "at any stage of a judicial proceeding" mentioned in section 479-A. Thus, section 479-A covers only certain cases which would come under section 476 Cr. P. C. 6. What section 479-A (6) provides is that if proceedings may be taken under section 479-A in respect of a person, no proceeding shall be taken under sections 476 to 479 for the prosecution of such a person for giving false evidence. The intention of the legislature certainly is not to bar or to exclude the application of sections 476 to 479, in cases which may be covered by section 479-A The intention appears to be only to avoid multiplicity of proceedings. The intention of the legislature certainly is not to bar or to exclude the application of sections 476 to 479, in cases which may be covered by section 479-A The intention appears to be only to avoid multiplicity of proceedings. Thus where a Court decides to take action against a witness for giving false evidence in any stage of the judicial proceeding for the purpose of eradication of the evils of perjury and in the interest of justice and in delivering the judgment or final order disposing of the proceedings, records a finding to that effect, then section 479-A will apply to the proceeding and any further proceeding against the said witness can be taken only under section 479-A. But where the Court has not so decided and has not given such a finding in its judgment or final order, then section 479-A has not come into operation and no proceedings can further be taken under that section. In such a case section 479-A (6) will not prevent action being taken against the witness under section 476 Cr. P. C. The proceedings under section 479-A referred to in section 479-A (6) are the proceedings corresponding to the proceedings under section 476 Cr. P. C., that is, the proceedings which are started after the delivery of judgment or final order. Such proceedings under section 479-A cannot be taken unless the Judge has decided and given a finding regarding the perjury in his judgment or final order in the case before it. If therefore a Court has not decided and given a finding as referred to above, it cannot be said that proceedings may be taken under section 479-A Cr. P. C. In such a case section 479-A (6) will not bar the proceedings under sections 476 to 479 Cr. P. C. 7. In this connection, reference may be made to the decision, State of Bombay v. Premdas Sukritdas, AIR 1960 Bom 483 . The learned Judge of the Bombay High Court after dealing with sections 476 to 479 stated in paragraph 4 that the expression "if in respect of such a person proceedings may be taken under this section" contained in sub-section 6 of section 479-A means "if in respect of such a person a finding has been recorded in the judgment as referred to in sub-section (1) of section 479-A". I am in entire agreement with the said observation for reasons stated above. 8. I may also refer to a Bench decision of the Allahabad High Court, Durga Prasad Khosla v. State of Uttar Pradesh, AIR 1959 All 744. It is a very instructive judgment in which this question has been fully dealt with and the points of distinction between 479-A on the one hand and sections 476 to 479 on the other have been given in a tabular form and the matter has been discussed in great detail. It was observed in the said decision that section 479-A was enacted to give additional power to the Court authorising it to deal speedily with the more flagrant or serious cases of intentionally giving, false evidence in judicial proceedings, that the intention with which the section was enacted was to deal with the offence of perjury of a more serious type and that offences which could not be brought under the new provision, could not, however be allowed to go unpunished and they could be dealt with under section 476. But in the said decision, it was observed that as two alternatives provisions depending for their application on the nature of the offence were being enacted, it became necessary to provide that if section 479-A could apply, action should not be taken under sections 476 to 479 and that if a case could be brought under section 479-A, the proceedings must be taken under that section and not under the other. At first sight, these observations may be taken to mean that if the matter could have been dealt with under 479(A), out has been so dealt with, action could not be taken under sections 476 to 479. At first sight, these observations may be taken to mean that if the matter could have been dealt with under 479(A), out has been so dealt with, action could not be taken under sections 476 to 479. But their Lordships pointed out in the decision the particular class of witnesses to whom section 479-A will apply and in paragraph 14 mentioned the said class of witnesses as those : (a) who intentionally gave or fabricated false evidence, (b) who did that in any stage of a judicial proceeding or for the purpose of being used at any stage of such proceeding, (c) about whom a finding about their committing such an offence has been recorded, (d) about whom such a finding had been recorded either at the time of delivering judgment in the proceeding or the final order disposing of the proceeding, and (e) about whom the Court is of opinion not only that the prosecution of the witness was necessary in the interests of justice but also that the offence was of such a nature that it was necessary to prosecute the witness for the eradication of the evils of perjury and fabrication of false evidence. From this, it is clear that if the Court did not decide in the case of a witness that it was expedient to prosecute him for the eradication of the evils of perjury and did not record a finding to that effect at the time of delivering judgment or final order, that witness will come under the class who could have been proceeded against under section 479-A and hence he can be proceeded against under Section 476. This decision overruled an earlier decision of the same High Court of a single Judge, Jai Bir Singh v. Malkhan Singh, AIR 1958 All 364 , in which it was held that the effect of section 479-A was that for the prosecution of a person who appeared as a witness and gave or fabricated false evidence, the provisions of that section alone would be applicable and the provisions of Sections 476 to 4/9 would not apply and that Section 479-A impliedly repealed section 476 in part, viz. so far as it applies to witnesses intentionally giving or fabricating false evidence in a judicial proceeding. so far as it applies to witnesses intentionally giving or fabricating false evidence in a judicial proceeding. The Bombay decision referred to above has also expressed its dissent with this earlier decision of the Allahabad High Court, I am in full agreement with the decisions, AIR 1960 Bom 483 and AIR 1959 All 744. 9. The decision of the Madras High Court Kasi Thevar v. Chinniah Konar, AIR 1960 Mad 77 , dealt with a case where the falsity of the evidence given by a witness came to light after the judgment in the proceeding was delivered. The Madras High Court held that in such a case Section 479-A will not apply to the witness and action can be taken against him under Section 476 The Madras decision has also expressed its dissent with the Allahabad High Court decision, AIR 1958 All 364 . 10. There are certain other decisions which have taken a contrary view, namely, in In re S. Abdul Jabbar, AIR 1958 Andh-Pra 469, and in In re Muniamma, AIR 1959 Andh-Pra 330, in both of which a single Judge has held that for the prosecution of the witness, who has given false evidence, Section 479-A alone will be applicable and no proceeding under Section 476 can be taken. I cannot agree with the observations in the said decisions for the reasons already mentioned. Section 479-A(6) will apply only if the Court decides to prosecute the witness in the interest of justice and for the eradication of perjury and gives a finding to that effect in its judgment. Where a Court does not do so for whatever reason it may be, Section 479-A will not apply to that witness and he can be proceeded against under Section 476. 11. In the decision of the Punjab High Court in Parshotam Lal v. Madan Lal, AIR 1959 Punj 145, the earlier decision of the Allahabad High Court AIR 1958 All 364 was considered before it was over-ruled and the said decision was approved of and it was held that the provision of Section 479-A overrides the provisions of sections 476 to 479 in so far as they related to the giving of false evidence or fabrication of false evidence by a person who gave evidence during the course of a judicial proceeding. It seems to me that this is too wide a statement. It seems to me that this is too wide a statement. The difficulty is only in respect of the class of witnesses who will come under the mischief of Section 479-A(6). It is only the witness about whom a finding has been given in the judgment who will come within. Section 476-A(6). All other witnesses can be dealt with under Section 476. 12. Another decision is Narajappa v. Chikkaramiah, by a single Judge of the Mysore High Court, AIR 1959 Mys 117, in which again it has been observed that once the person has appeared as a witness before the Court, it will be the provisions of Section 479-A that will be applicable and not any of the provisions contained in Sections 476 to 479 and that if no action has been taken against a person in accordance with the provisions of Section 479-A, it is not open to have recourse to the provisions of Section 476. These observations in the said decision were considered by the Madras High Court in the decision, AIR 1960 Mad 77 and it was remarked that the observations appeared to be rather wide. It was pointed out in the Madras decision that it is not only that a person should have appeared as a witness in Court, out he must further by his evidence drive the Court to form an opinion that he was giving false evidence and that if at the time of the delivery of the judgment, the Court could not form any opinion that the witness was giving false evidence, then certainly, his mere appearance as a witness will not justify the Court to take action under Section 479-A. I would even go a little further and say that until the Court forms an opinion and gives a finding to that effect in its judgment, the witness in question will not come under Section 479-A, but only under section 476. 13. In the decision Mannalal Sardarmal v. Ramkishan Jodhraj, AIR 1959 Madh-Pra 264, it was observed that sub-section (6) of Section 479-A makes it abundantly clear that the procedure laid down in Section 479-A(1) is not alternative to the one under Sections 476 to 479 Cr. P. C. and that the expression "may be taken" in sub-section (6) does not mean discretionary proceedings but means proceedings which could be taken. P. C. and that the expression "may be taken" in sub-section (6) does not mean discretionary proceedings but means proceedings which could be taken. I do not take exception to these observations, but I would only remark that the stage at which Section 479-A comes into play in respect of a witness is the stage when the Court has given a finding in its judgment that the offence has been committed. When once there is such a finding in the judgment, no action can be taken under Section 476, but only under Section 479-A(1). It is only to this extent that Section 479-A(6) excludes the application under section 476. 14. The question next arises whether in the present case, the witness should be proceeded against under section 476. I have already pointed out that the Sessions Judge in his judgment in the Sessions case accepted the evidence of the two witnesses given before him in finding that the accused were not guilty. Thus, he was not satisfied that they were giving false evidence before him or before the Committing Court. This meant that the two witnesses P. Ws. 15 and 4 cannot be proceeded against under Section 479-A at all as it was not established that they had given false evidence at any stage of the judicial proceeding, which is the condition necessary for proceeding against them under Section 479-A(1). There is however the fact that the two witnesses had given an inconsistent version in their statements recorded under Section 164 Cr. P. C. Thus, it can only be stated that the evidence contained in the said statements was false. The said statements will not come within the purview of Section 479(A) as it cannot be said that the statements recorded under Section 164 Cr. P. C. will amount to evidence in any stage of a judicial proceeding within the meaning of Section 193 I. P. C. Explanations 2 and 3 in Section 193 I. P. C. no doubt, make an investigation directed by law preliminary to a proceeding before a Court of Justice and an investigation directed by a Court of Justice according to law a stage of a judicial proceeding. But a statement recorded under Section 164 Cr. P. C. cannot be said to be done in the course of any such investigation as mentioned in explanations 2 and 3. But a statement recorded under Section 164 Cr. P. C. cannot be said to be done in the course of any such investigation as mentioned in explanations 2 and 3. I may here refer to the Penal Law of India, by Dr. Sir Hari Singh Gour, 7th edition - Vol. II page 955, wherein it has been stated on the authority of the Full Bench decision Purshottam Ishwar Amin v. Emperor, ILR 45 Bom 834 : (AIR 1921 Bom 3) (FB), that a statement recorded by a Magistrate in the course of a Police investigation under Section 164 Cr. P. C. is not evidence in a stage of a judicial proceeding within the meaning of explanation 2 of Section 193 I. P. C. and that it will come within only clause (2) of Section 193 of giving false evidence "in any other case". Thus no action can be taken under Section 479-A at all by a Court in the case of false evidence seen in the statements recorded under 3. 164 Cr. P. C. Hence, it follows that the only action which could have been taken in the present case was under Section 476 and not under S. 479-A. 15. It is clear therefore that the learned sessions Judge was wrong in stating that he was debarred by section 476-A(6) from proceeding against the 2 witnesses. 16. The question now is whether it is necessary to take action against the two witnesses under Section 476 I. P. C. In that connection, the learned Sessions Judge has relied on the decision of the Bombay High Court, AIR 1941 Bom 408. In that decision we find the following observations : "Where therefore a person has resiled in the Sessions trial from his statement under Section 184, Criminal P. C., it is absolutely essential that the Court should make up its mind whether it was the statement before the Magistrate under Section 164 or the statement subsequently made in Court which was false. If the statement in Court was false then in the interest of justice there should be a prosecution; but supposing it was the statement under Section 164 which was false a prosecution would not be expedient in the interests of justice. If the statement in Court was false then in the interest of justice there should be a prosecution; but supposing it was the statement under Section 164 which was false a prosecution would not be expedient in the interests of justice. No doubt, a man making a statement on oath before a Magistrate under S. 164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently he goes into the witness box. To prosecute a man who has resiled from a false statement made under S. 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under S. 164 than that he should be induced to believe that it is to his interest, however false the statement may have been, to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent persons is too great to be risked. If the non-prosecution would result in abandoning the practice of taking statements under section 164, it will not be a bad thing." It seems to me that the said observations apply with full force in our present case. Both the witnesses stated before the Sessions Judge that they were threatened and pressed by the I. O. to give the false statements when examined under Section 164 Cr. P. C. The learned sessions Judge has also found in his judgment in the Sessions Court that the conduct of the I. O. was not at all proper and that he had even substituted his case Diary after the charge sheet was filed. In his present order also, the learned Sessions Judge has stated that it could not be ruled out that the statements under section 164 were made under Police influence. It cannot be said therefore that it is expedient to take action in the interests of justice against the two witnesses. 17. But it was strenuously argued that two inconsistent statements have been made by both the witnesses and that under Section 236 Cr. It cannot be said therefore that it is expedient to take action in the interests of justice against the two witnesses. 17. But it was strenuously argued that two inconsistent statements have been made by both the witnesses and that under Section 236 Cr. P. C., the two witnesses could be charged in the alternative with having given false evidence either in the statements made under Section 164 or in the Committing Court and the Sessions Court. But I find from the petition filed before the Sessions Judge that the Public Prosecutor wanted action to be taken on the basis that the statements given under Section 164 contained the true version and that the two witnesses had given false evidence in the Committing Court and in the Sessions Court. But in view of the finding of the Sessions Judge in his judgment in the Criminal case, no action can be taken against the two witnesses for their statements in the Committing Court and the Sessions Court as they were not found to be false statements. Action can only be taken on the basis that the evidence contained in the Section 164 statements was false. I have already found that it is not expedient to take action against them for this. I may also, remark here that the Public Prosecutor has not thought it fit to come in appeal under Section 476-B against the order of the Sessions Judge. Action under Section 439 Cr. P. C. in revision can be taken only very rarely in such cases and particularly, not when the person who moves the Court cannot be said to have the interests of justice at heart, but only the satisfaction of his private spite. I do not find any action necessary. The revision petition is, therefore, dismissed. Revision dismissed.