ORDER Gyanendra Kumar, J. - This is an application by Gopalji Brahmachari u/s 476 Code of Criminal Procedure for ordering the prosecution of the opposite party, Parshottamchari for having filed a false affidavit in this Court in Cr. Rev. No. 179 of 1964 Baddu Singh and Pratap Singh v. Gopalji. The facts giving rise to the instant application are as under. Adi Shankaracharya had established various Maths, one of them being Jyotirmath near Badrikashram in the district of Chamoli. Swami Brahmanand Saraswati was the Shankaracharya of Jyotirmath. After his demise a dispute arose between Swami Krishna Bodh Ashram and Swami Shantanand Saraswati, inter alia regarding possession and management of the Math. Gopalji Brahmachari is the Agent and Attorney of Swami Krishnabodh Ashram, while Baddu Singh and Pratap Singh are servants and employees of Swami Shanta Nand. As agent and attorney of Swami Krishnabodh Ashram, Gopalji had filed an application u/s 145 Code of Criminal Procedure in respect of the Math against Baddu Singh and Pratap Singh servants of Swami Shanta Nand. The Magistrate found the second party to be in possession and restrained the first party from interfering with their possession. Being dissatisfied with the above finding, Gopalji went up in revision to the Sessions Judge, who made a reference to that High Court. This Court quashed the proceedings and remanded the case to the Magistrate for re-hearing. On remand, the Magistrate attached the Math property by his order dated 20-11-1963. Baddu Singh and Pratap Singh felt aggrieved by the aforesaid order of attachment of the Math property and went up in revision to the District Magistrate of Chamoli, who dismissed the same by his order dated 21-1-1964. They then filed Cr. Rev. No. 179 of 1964 in this Court on 31-1-1964, wherein Gopalji was arrayed as opposite party. By his order of that date, Mathur, J. gave certain directions to the Magistrate for interim arrangement and possession of the Math, after hearing the parties. In compliance of the aforesaid order of Mathur, J. the Magistrate by his order dated 18-3-1964 put the Math property under the interim management and supurdagi of Gopalji. Baddu Singh and Pratap Singh felt aggrieved by the aforesaid order and went up in revision to the District Magistrate of Chamoli who dismissed the same on 23-6-1964. Thereafter they filed Cr. Rev. No. 1471 of 1964 in this Court. 2. Baddu Singh and Pratap Singh felt aggrieved by the aforesaid order and went up in revision to the District Magistrate of Chamoli who dismissed the same on 23-6-1964. Thereafter they filed Cr. Rev. No. 1471 of 1964 in this Court. 2. On 10-5-1965 Baddu Singh and Pratap Singh filed Cr. Misc. Appl. No 128 of 1965 in Cr. Rev. No. 179 of 1964, saying that Gopalji, opposite party, who had been entrusted with the management of Jyotirmath by the Magistrate, had become a lunatic with the result that the Math was lying in an abandoned condition, without any body taking care of it and that there was no person to look after the sanyasis and sadhus visiting Badrinath and Kedarnath. In the end a prayer was made for appointment of a Receiver or another Supurdar for the Jyotirmath. In support of the above application, the affidavit of Swami Parshottamchari (present opp. party) was filed, who deposed on his personal knowledge that Gopalji had become a lunatic and the math property was lying in an abandoned condition. This application came up before me on 18-5-1965, when I directed the SDM Joshimath to enquire into the matter and if he found that Gopalji had become insane and was not capable of managing the Math, he should forthwith be substituted by another competent supurdar. 3. In his report dated 29-7-1965 the SDM remarked as under: After a careful perusal of the evidence produced by the parties and the opinion of Civil Surgeon, Chamoli and my personal observation of Gopalji in the Court during his various appearances, I am convinced that Gopalji was in full command of his senses. He (Gopaji) was neither a lunatic nor insane and the allegations levelled against him by Baddu Singh and others were not only baseless but mischievious. It appears to me that Baddu Singh in order to obtain the supurdagi of the Math has taken recourse to the charge of insanity against Gopalji and has tried to enter the Math by the back. 4. Both the aforesaid revisions Nos. 179 and 1471 of 1964 were dismissed by Mathur, J. but, while doing so, he authorised the Magistrate to consider the question of change of the supurdar at a later stage, if he was satisfied that the new manager would be in a position to properly look after the management of the Math property. 4. Both the aforesaid revisions Nos. 179 and 1471 of 1964 were dismissed by Mathur, J. but, while doing so, he authorised the Magistrate to consider the question of change of the supurdar at a later stage, if he was satisfied that the new manager would be in a position to properly look after the management of the Math property. At the instance of Swami Shantanand, on 25-3-1966 the SDM of Joshinath removed Gopalji from the supurdagi of the Math and appointed Shiveinand Brahmachari and Indu Prakash Upadhya as supurdars. 5. On 5-4-1966 Gopalji filed Cr. Misc. Appl. No. 1110 of 1966 u/s 561-A Code of Criminal Procedure in the connected Cr. Revs, for review of the aforesaid order dated 16-12-1965 and prayed for quashing of the order of the S.D.M. dated 25-3-1966. The above application came up before Mathur, J. on 21-4-1966, who ordered issue of notice to Baddu Singh and Pratap Singh, employees of Swami Shanta Nand. On 13-9-1966 Gopalji filed the instant Cr. Misc. Appl. No. 2862 of 1956 u/s 476 Code of Criminal Procedure in Cr. Rev. No 179 of 1964 for prosecution of Parshottamchari u/s 193 IPC, on account of his having filed a false affidavit in this Court alleging that the Applicant (Gopalji) had 'become insane and was unfit to manage the Math property as supurdar. It may be mentioned here that notices ordered to be issued by Mathur, J. on Gopalji's review application No. 1110 of 1966 remained unserved on the two opposite-parties (Baddu Singh and Pratap Singh), with, the result that on 30-11-1966 fresh notices were ordered to be issued to both of them. However, due to the strike by the High Court employees, the notices were issued on 28-2-1967 and have-not yet returned after service. 6. On Gopalji's application u/s 476 Code of Criminal Procedure, I had passed the following order on 29-9-1966: Parshottamchari has apparently sworn a false affidavit alleged to be true to his personal knowledge that Gopalji Brahmachari had become insane and incapable of managing the Math property. This is belied by the certificate of the Civil Surgeon and the report of the SDM as well by the contents of this application. It is expedient in the interest of justice that an enquiry should be made into the offence punishable u/s 193 IPC which appears to have been committed in this Court. This is belied by the certificate of the Civil Surgeon and the report of the SDM as well by the contents of this application. It is expedient in the interest of justice that an enquiry should be made into the offence punishable u/s 193 IPC which appears to have been committed in this Court. The opposite party shall show cause why a complaint should not be filed against him for an offence punishable u/s 193 IPC. 7. On 27-2-1967 a written reply was filed on behalf of Parshottamchari reiterating that Gopalji had become insane and was kept confined at Dharam Sangh Delhi and was under treatment there for his mental disease for about 6 months; that the Math lay in an abandoned condition and it was only after Gopalji got well that he had appeared before the Magistrate and was examined by the Civil Surgeon. With regard to the opinion of the Civil Surgeon and the Magistrate about the mental condition of Gopalji it was stated that the same related to the condition of his mind in July 1965 when he was examined by the Civil Surgeon and had appeared before the Magistrate, but it was incorrect to say that he had never become a lunatic before. It was further contended on behalf of Parshottamchari that the present enquiry was barred by Sub-section (6) of Section 479-A Code of Criminal Procedure. 8. In support of his last contention, Mr. V.K.S. Chaudhary, appearing for Parshottamchari, has placed reliance upon the decision of the Supreme Court in Baban Singh v. Jagdish Singh 1967 AWR 81 which was decided on 8-2-1966. It was a case in which the High Court of Patna had ordered its Registrar to file a complaint u/s 199 IPC against two persons for filing false affidavits in the High Court, an application made by the Respondents thereto u/s 476 Code of Criminal Procedure. The brief facts of that case were that Jagdish Singh and Paramhans were Appellants in a First appeal pending in the High Court of Patna, wherein Smt. Dharichhan Kuer was Respondent No 13. During the pendency of the appeal a compromise was said to have been arrived at between Dharichhan Kuer on the one hand and Jagdish Singh and Paramhans on the other. Both these Appellants swore an affidavit on 22-6-1953 in support of the compromise application filed in the High Court. During the pendency of the appeal a compromise was said to have been arrived at between Dharichhan Kuer on the one hand and Jagdish Singh and Paramhans on the other. Both these Appellants swore an affidavit on 22-6-1953 in support of the compromise application filed in the High Court. Dharichhan Kuer was identified before the Oath Commissioner and Rs. 4,000/- were paid to her under the terms of the compromise in the presence of the Oath Commissioner for which a receipt, bearing her thumb impression was also passed on to Jagdish Singh and Paramhans. The petition of compromise was filed in Patna High Court on 13-7-1953. The same day, Baban Singh, husband of Dharichhan Kuer, swore an affidavit denying the compromise and payment of Rs. 4,000/- to his wife. Later on Dharichhan Kuer also filed an affidavit in support of her husband's affidavit. As the compromise became disputed, the High Court ordered the Registrar to hold an enquiry. Nine witnesses were examined on behalf of Jagdish Singh and Paramhans, while Dharichhan Kuer and her husband Baban Singh also gave their testimony. The Registrar reported on 14-7-1954 that the compromise was genuine and that Dharichhan Kuer had received Rs. 4,000/-. The two Judges of Patna High Court accepted the report of the Registrar. One of the terms of the compromise was that if Dharichhan Kuer resiled from it, the amount of Rs. 4,000/- would be refunded with Rs. 500/- as costs. Dharichhan Kuer deposited the said amount and the First Appeal was then heard and disposed of Jagdish Singh and Paramhans had already filed the aforesaid application u/s 476 Code of Criminal Procedure but it was taken up for hearing after the disposal of the First Appeal. Under the above circumstances, a question arose whether the complaint for prosecution of Baban Singh and Dharichhan Kuer for an offence u/s 193 IPC could be filed in the High Court when they had made false depositions not before the Court but before the Registrar. In that case the counsel for Jagdish Singh and Paramhans had conceded that no prosecution could take place u/s 193 IPC because of the bar of Section 479-A Code of Criminal Procedure. In that case the counsel for Jagdish Singh and Paramhans had conceded that no prosecution could take place u/s 193 IPC because of the bar of Section 479-A Code of Criminal Procedure. The High Court, however, considered that Baban Singh and Dharichhan Kuer could be proceeded against u/s 476 Code of Criminal Procedure in respect of their false affidavits filed in the First Appeal and therefore ordered the Registrar to lodge a complaint against them. Baban Singh and Dharichhan Kuer thereupon went up in appeal to the Supreme Court u/s 476 B Code of Criminal Procedure. It may be mentioned that inspite of notices having been issued to Jagdish Singh and Paramhans as well as the State Government, none of them appeared at the hearing. Therefore, their Lordships of the Supreme Court had only the benefit of the arguments advanced by the learned Counsel for Baban Singh and his wife Dharichhan Kuer Appellants. 9. After considering the provisions of Section 479-A their Lordships of the Supreme Court posed a question for decision: "Does the swearing of the false affidavits amount to an offence u/s 199 IPC or u/s 191 or 192 IPC?" They came to the conclusion that the offence of swearing false affidavits would fall within the ambit of Section 191 as also of Section 192 IPC inasmuch as when the affidavits of Baban Singh and Dharichhan Kuer were tendered in the High Court to be taken into consideration, they intended the statements to appeal in evidence in a judicial proceeding and so appearing, to cause the Court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of Sections 191/192 rather than Section 199 IPC. They were thus prima facie guilty of an offence of giving false evidence or of fabricating false evidence for the purpose of being used in a judicial proceeding. Their Lordships went on to remark Section 479-A lays down a special procedure which applies to persons who appear as witnesses before civil, revenue or criminal courts and do one of two things: (1) intentionally give false evidence in any stage of the judicial proceeding, or (2) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceeding. The first refers to an offence u/s 191/193 and the second to that u/s 192/193 of IPC. The first refers to an offence u/s 191/193 and the second to that u/s 192/193 of IPC. In respect of such offences when committed by a witness, action u/s 479A alone can be taken. The Appellants were witnesses in the enquiry in the High Court and they had fabricated false evidence. If any prosecution was to be started against them the High Court ought to have followed the procedure u/s 479 A Code of Criminal Procedure. Not having done so, the action u/s 476 of the Code of Criminal Procedure was not open because of Sub-section (6) of Section 479-A and the order under appeal cannot be allowed to stand. 10. With the greatest respect it may be pointed out that the only 'enquiry' which was made in the matter was the one before the Registrar where the parties had examined their respective witnesses. It may be remembered that Baban Singh and Dharichhan Kuer had examined themselves alone as their own witnesses before the Registrar in the 'enquiry' entrusted to him by the High Court, There can be little doubt that if Baban Singh and his wife were to be prosecuted for their depositions made during the 'enquiry' before the Registrar, the provisions of Section 479-A(6) Code of Criminal Procedure would atone come to their rescue, inasmuch as they had actually 'appeared' as witnesses before him. But in the case in question they were sought to be proceeded against in respect of their affidavits, which they had filed earlier in the High Court denying the compromise and payment of Rs. 4000/-. Those affidavits were admittedly sworn and verified before the Oath Commissioner and at no stage had their deponents 'appeared' before the Court as witnesses. Simply because they had tendered their affidavits in the High Court and had intended the statements contained therein to form evidence in the pending judicial proceedings, the same cannot be considered to be their 'appearance as witnesses' before that Court, inasmuch as the words used in Section 479-A are "any person appearing before it as a witness has intentionally given false evidence." This aspect of the matter does not appear to have been placed before the Supreme Court, because neither the Respondent nor the State had entered appearance at the hearing of Baban Singh's appeal before the Supreme Court. 11. 11. I have had occasion to consider the above question in C.P. Vedra v. State 1965 AWR 508 and I was of the opinion that the person complained of must necessarily appear as a witness in the Court before proceedings u/s 479-A Code of Criminal Procedure could be launched against him and a witness so appearing, he must have intentionally given or fabricated false evidence. Merely filing of an affidavit, in a judicial proceeding, without actually appearing as a witness before the Court, would not attract the provisions of Section 479-A(6). For that purpose a person must step into the witness box and make his depositions in a judicial proceeding pending before a court of law. 12. To take an illustration; if A had sworn a false affidavit at Delhi but had filed it in a court at Allahabad and the deponent thereof was never required to appear as a witness in Allahabad Court for cross-examination etc. but his affidavit was simply tendered as evidence in a judicial proceeding in Allahabad Court, can it be said that A had appeared before the Allahabad Court as a witness and had intentionally given false evidence in the judicial proceedings, pending in that Court, within the meaning of Section 479-A(1) Code of Criminal Procedure? It is abundantly clear that the mere tendering of a piece of paper in the shape of an affidavit cannot be called the appearance of its deponent as a witness before that Court. 13. Mr. Ramesh Sharma appearing for the Petitioner, has, on the other hand, placed reliance on the case of Kuppa Goundan and Anr. v. MSP Rajesh 1967 AWR 31. It may be mentioned that in this case one of the learned Judges was Hidayatullah, J. who had delivered the judgment in Baban Singh's case (supra) on 8th February 1966, while Kuppa Goundan's case was decided on 5th of May 6 and was thus a latter authority, wherein the ambit and scope of Section 476 vis-a-vis Section 479-A Code of Criminal Procedure were considered. 14. In Kuppa Goundan's case the facts were that four persons other than MSP Rajesh were prosecuted by the Appellants thereto, Under Sections 323, 325 and 448 IPC. 14. In Kuppa Goundan's case the facts were that four persons other than MSP Rajesh were prosecuted by the Appellants thereto, Under Sections 323, 325 and 448 IPC. However, at the trial PW1 Kuppa Goundan and another person who was PW2 falsely deposed that Kuppa Goundan was also among the trespassers and assailants and that he was armed with a gun which another accused had later on taken from him. After the conclusion of the trial, Kuppa Goundan filed a petition before the Magistrate u/s 476(1) Code of Criminal Procedure alleging that on the date of occurrence that is 11-10-1963, he along with certain other Directors had attended a meeting of the Board of Directors of Chambra Peak Estate Ltd. from 4.30 p.m. to 5.15 p.m. at Bangalore and that he was not at Yercaud on October 11, 1963 on which date the occurrence had taken place. Accordingly Rajesh prayed for the prosecution of PWs 1 and 2 for giving false evidence, u/s 193 IPC. Rajesh had produced a copy of the Draft Minutes of the Board meeting and also cited certain witnesses in support of his case. After considering the matter, the Sub-Magistrate was satisfied that Rajesh could not have been present at the alleged occurrence on 11-10-1963 at Yercaud and that PWs 1 and 2 deliberately committed perjury and falsely implicated Rajesh as among the assailants. Accordingly the Magistrate proceeded u/s 476 Code of Criminal Procedure and filed a complaint against the two PWs u/s 193 IPC. The witnesses contended that the complaint was not maintainable in law because the trying Magistrate had not followed the procedure u/s 479-A Code of Criminal Procedure and it was, therefore, not open to the Magistrate to take recourse to the provisions of Section 476 Code of Criminal Procedure. The Magistrate accepted the objection and discharged the accused, holding that the complaint was not sustainable because of the bar of Sub-section (6) of Section 479-A Code of Criminal Procedure. On revision the Madras High Court set aside the order of the Magistrate and directed that the trial should proceed. Thereupon the two PWs went up in appeal to the Supreme Court by Special leave. 15. On revision the Madras High Court set aside the order of the Magistrate and directed that the trial should proceed. Thereupon the two PWs went up in appeal to the Supreme Court by Special leave. 15. The question of law which arose in this case before the Supreme Court was--what was the true meaning and scope of Section 476 Code of Criminal Procedure in the context of Section 479-A(1) and (6) Code of Criminal Procedure with regard to a prosecution authorised by a Court in respect of an offence of perjury committed before it in the course of the trial? It was pointed out by their Lordships that the necessary condition for the application of Section 479-A Code of Criminal Procedure was that the Court before it delivers its judgment or at any rate at the time of delivering the judgment must form an opinion that a particular witness or witnesses, is or are giving false evidence; if the Court could not form any opinion about the falsity of the evidence of the witness appearing before it, then certainly the Court cannot at the time of delivering its judgment, record any finding about the same. It is manifest that a Court can come to a conclusion that a witness is false only when there are materials placed before it to justify that opinion. If no materials are placed before the Court to enable the Court to form an opinion that a witness is giving false evidence, then certainly it could not form that opinion. In the present case, the Respondent produced material before the trial Court on 23-12-1963, after the conclusion of the trial that the Petitioners had given false evidence in the case and the Respondent produced the necessary documents along with an application for proceeding against the Petitioners u/s 476 Code of Criminal Procedure.... It is, therefore, manifest that at the time when the judgment was delivered the Magistrate had no material before him to form an opinion that the Petitioners had given false evidence.... It is, therefore, clear that Section 479-A will not be applicable on the facts of this case and if the provisions of Section 479-A will not apply on the facts of this case, it follows that the bar contemplated by Clause (6) of that section will not be applicable. It is, therefore, clear that Section 479-A will not be applicable on the facts of this case and if the provisions of Section 479-A will not apply on the facts of this case, it follows that the bar contemplated by Clause (6) of that section will not be applicable. The reason is that Clause (6) can be invoked only in cases in which Section 479-A(1) will be applicable.... Applying the principle in the present case we are of opinion that the prosecution of the Petitioners under the provisions of Section 476 Code of Criminal Procedure by the Magistrate after the conclusion of the trial it legally valid and is not affected by the bar of Clause (6) of Section 479-A Code of Criminal Procedure. The under lines (herein italics) are mine. 16. From the under lined portion of the above quotation it is quite clear that before Section 479-A can apply, it is incumbent on the Court to form an opinion that a particular witness appearing before it gave false evidence. It is, therefore, absolutely essential that the witness in question must appear in person before the Court, concerned in order to enable it to form an opinion about the falsity of his evidence, inter alia by watching his demeanour. If the person had not actually entered the witness box but had merely tendered his affidavit, it may not, in certain cases, be possible for the Court to form an opinion about the falsity of his statement. In the instant case Parshottamchari had only filed his affidavit but had never appeared before the High Court as a witness hence the procedure laid down in Section 479-A Code of Criminal Procedure has no application here. It would be governed by Section 476 Code of Criminal Procedure. 17. It is also noteworthy that at the time when Mathur, J. disposed of the two revisions by his judgment dated 16-12-1965, the report of the Magistrate dated 29-7-1965, the opinion of the Civil Surgeon and the testimony of witnesses to the effect that Gopalji was not a lunatic or insane, were not before Mathur, J. This is evident from the report of the office dated 1-3-1967 saying that by inadvertence a report from the S.D.M. was not called for nor received in the office. That is why Mathur, J. could not have formed any opinion as to the falsity of the allegation of Parshottamchari that Gopalji had become a lunatic and insane. Nevertheless, in response to the notice issued to him to show cause why a complaint u/s 193 IPC should not be filed against him, Parshottamchari has now filed a reply on 27-2-1967 reiterating his statement that Gopalji had become insane and was kept confined at Dharma Sangh. Delhi and was under treatment there for about 6 months. It is also admitted by his counsel, Mr. V.K.S. Chaudhry, that when the enquiry about the alleged insanity was being made, Gopalji h id appeared before the Magistrate on various dates, that the parties had led evidence in support of their respective allegations, that the Civil Surgeon had certified Gopalji to be absolutely sane and that after personally observing Gopalji on various dates, the Magistrate had found that Gopalji was not insane and that the opposite party had taken recourse to set up a case of insanity of Gopalji in order to enter the Math surreptitiously by the back door. As pointed out by their Lordships of the Supreme Court in Goundan's case all that was material to prove the falsity of Parshottamchari's allegation of insanity against Gopalji was not available before Mathur, J. at the time of final disposal of the two revisions in question on 16-12-1965. 18. I am, therefore, of the opinion that the instant case ii not covered by Clauses (1) and (6) of Section 479-A Code of Criminal Procedure and that the only section applicable to the present case is Section 476 Code of Criminal Procedure. 19. I am not at all satisfied with the explanation of the opposite-party, Parshottamchari, filed on 27-2-1967. He appears to have sworn a false affidavit, to his personal knowledge, that Gopalji had become insane and rendered incapable to manage the Math property. This is wholly belied by the oral evidence produced on behalf of Gopalji, the certificate of the Civil Surgeon and the finding of the S.D.M. based on personal observation. Parshottamchari, being 54 years of age, is a fully mature person and represents himself to be belonging to holy order. Even while putting his signatures, he described himself as Shri Swami Parshottamchari. Persons belonging to such a holy order are held in high esteem by the people of India, for their moral excellence. Parshottamchari, being 54 years of age, is a fully mature person and represents himself to be belonging to holy order. Even while putting his signatures, he described himself as Shri Swami Parshottamchari. Persons belonging to such a holy order are held in high esteem by the people of India, for their moral excellence. If they speak lies and fabricate false evidence, it would have very demoralizing influence on the people in general. I, therefore, consider it expedient in the interest of justice that he should be proceeded against for perjury. Accordingly I direct that the Registrar of this Court would file a complaint against the opposite-party, Parshottamchari, u/s 193/199 IPC for having sworn and filed a false affidavit in this Court.