Order: The petitioner is the prosecution witness No. 1 (P.W.1) before the Additional Assistant Sessions Judge, Kottayam, in Sessions Case No. 97 of 1972. He has been served with a notice purporting to be under section 476 of the Code of Criminal Procedure, to show cause why criminal prosecution should not be launched against him for giving false evidence in the course of the Sessions trial held before the same Assistant Sessions Judge, Kottayam. 2. The Sessions trial was conducted against two accused persons in respect of offences under sections 419, 420,423, 465, 467 and 468 read with section 34 of the Indian Penal Code. The case against the accused persons was that they got up Exhibit P-1 gift deed forging the signature of P.W.2, the brother of the 1st accused and presented it for registration before P.W.1, the Sub Registrar, falsely impersonating P.W.2 for getting it registered. After registration Exhibit P-1 was used by the 1st accused as genuine document in evidence in a civil suit between the 1st accused and P.W.2. The evidence of P.W.1, the petitioner was a relevant piece of evidence against accused 1 and 2 at the Sessions trial. But it is alleged that the petitioner tendered false evidence at the trial, though the 1st accused was found guilty. The 1st accused has been convicted and sentenced to various terms of imprisonment under the offences charged against him. The learned Assistant Sessions Judge dealt with the evidence of the petitioner quoting instances where he gave one version in the committal Court and quite a different version in the Sessions Court. After recording those variations in his evidence as Exhibits P-2 (a) and P-2 (b), the learned Assistant Sessions Judge made the following comment upon his evidence. It reads: "This statement shows that P.W.1 was giving false evidence. It is the primary duty of an officer who registers a document to ascertain at least whether the parties mentioned in the document were present for the purpose of registration. P.W.1 would say that he has not cared to verify this fact. This material deviation from the statement before the lower Court contained in Exhibit P-2 can only be with the object of helping the accused. The loss of memory pleaded by him cannot be accepted on its face value. P.W.1 would say that he has not cared to verify this fact. This material deviation from the statement before the lower Court contained in Exhibit P-2 can only be with the object of helping the accused. The loss of memory pleaded by him cannot be accepted on its face value. Anybody who intentionally gives false evidence for the purpose of being used at any stage of judicial proceedings shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine. In this case P.W.1 has given false statement before this Court is evident from Exhibit P-2, his statement before the lower Court. Hence P.W.1 is liable to be proceeded against under section 193, Indian Penal Code, for giving false evidence. It is expedient in the interest of justice that an enquiry should be made about the conduct of P.W.1. Hence P.W.1, P.T. Pothen, will be called upon to explain any reason for not proceeding under section 193 for giving false evidence before this Court in the light of Exhibit P-2.............. Notice will be issued to P.W.1 as to why he should not be prosecuted for giving false evidence as envisaged in section 476, Criminal Procedure Code“. 3. It is only on the basis of Exhibits P-2(a) and P-2 (b) contradictions that the learned Assistant Sessions Judge assumed that the petitioner gave false evidence before him. Hence the notice was issued to the petitioner as enjoined in section 476, Criminal Procedure Code. The question for consideration is whether the Assistant Sessions Judge is justified in issuing a notice under that sections. 4. Section 476 (1), Criminal Procedure Code, occurs in Chapter XXXV of the Code. Sections 476 to 479 inclusive are under the head”proceedings in cases of certain offences affecting the administration of justice.“By section 89 of Act XXVI of 1955, another section is enacted as section 479-A, which is under the head,”proceedings in case of certain offences affecting the administration of justice.“ 5. To understand the full import and relative importance of sections 476 and 479-A it is necessary to quote those two sections: ”476. To understand the full import and relative importance of sections 476 and 479-A it is necessary to quote those two sections: ”476. (1) When any Civil, Revenue or Criminal Court is, whether on 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 section 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: Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint. For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200. For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200. (3) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case, may have been transferred that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided.“ ”479-A. (1) Notwithstanding anything contained in sections 476 1o 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 interest 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 of the Court as the Court may appoint. Explanation.-For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200. Explanation.-For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200. (3) No appeal shall lie from any finding recorded and complaint made under sub-section (1). (4) Where, in any case, a complaint has been made under sub-section (1) and an appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen, the hearing of the case before the Magistrate to whom the complaint was forwarded or to whom the case may have been transferred shall be adjourned until such appeal is decided; and the Appellate Court, after giving the person against whom the complaint has been made an opportunity of being heard, may, if it so thinks fit, make an order directing the withdrawal of the complaint; an d a copy of such order shall be sent to the Magistrate before whom the hearing of the case is pending. (5) In any case, where an appeal has been preferred from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said sub-section may be exercised by the Appellate Court; and where the Appellate Court makes such complaint, the provisions of sub-section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard. (6) 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 this section." 6. On a reading of these two sections, it is clear that the procedure to be followed in section 479-A is not an alternative procedure to the proceedure in section 476. In Parshotham Lal v. Madan Lal1, it was held that the provisions of section 479-A override the provisions of sections 476 to 4,79 in so far as they relate to the giving of false evidence or fabricating false evidence by a person who gives evidence during the course of the judicial proceedings. In Parshotham Lal v. Madan Lal1, it was held that the provisions of section 479-A override the provisions of sections 476 to 4,79 in so far as they relate to the giving of false evidence or fabricating false evidence by a person who gives evidence during the course of the judicial proceedings. More or less the same view was expressed in Amolak v. State2, where it is also held that where a case is of a class which falls squarely within the ambit of section 479-A(1) of the Code, the provisions of sections 476 to 479 are inapplicable. The bar of any proceeding under sections 476 to 479, Criminal Procedure Code, is provided for in sub-section (6) of section 479-A if proceedings have been taken under sub-section (1) of section 479-A. 7. Section 479-A applies only to certain kinds of cases of giving false evidence, where the Judge records a finding under section 479-A (1) and section 476 applies to all the other cases of false evidence where the Judge has not recorded a finding under section 479-A (1). The Supreme Court in Shabir Hussain, Bholu v. State of Maharashtra1, approving both the cases, one in Parshotham Lal v. Madan Lal2, and the other in Amolak v. State3, referred to above laid down the principle and procedure to be followed in cases coming either under section 476 or under section 479-A, Criminal Procedure Code. It stated: "Under section 476 the action may proceed suo motu or on application while under section 479-A no application seems to be contemplated. But there is nothing in this provision which makes a distinction between flagrant offences and offences which are not flagrant or between serious offences and offences which are not serious. For exercising the powers conferred by this section, the Court has in the first instance to form an opinion that the person against whom complaint is to be lodged has committed one of the two categories of offences referred to therein. The second condition is that the Court has come to the conclusion that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that a witness should be prosecuted for an offence which appears to have been committed by him. The second condition is that the Court has come to the conclusion that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that a witness should be prosecuted for an offence which appears to have been committed by him. Having laid down these conditions section 479-A prescribes the procedure to be followed by the Court." The decision further stated stressing upon the responsibility of the Court as to when the order for prosecution is to be lodged. It reads: "If the Court does not form an opinion that the witness has given intentionally false evidence or intentionally fabricated false evidence no question of making a complaint can properly arise. Similarly, where the Court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interests of justice to make a complaint it has a discretion not to make a complaint. But it does not follow from this that it can later on resort to section 476 and make a complaint against the witness." The Supreme Court continued its observation regarding the jurisdiction of Courts to make a complain:, in the following words: "The jurisdiction of the Court to make a complaint against a person arises only from the fact that that person has given false evidence or fabricated false evidence at any stage of the proceeding disposed of by it. The conditions required to be fulfilled by the Court and the procedure to be followed by it for the purpose of exercising its jurisdiction and making a complaint are not to be equated with the conditions which give the Court jurisdiction to make a complaint. From this it would follow that whereas section 476 is a general provision dealing with the procedure to be followed in respect of a variety of offences affecting the administration of justice in so far as certain offences falling under sections 193 to 105 and section 471, Indian Penal Code, are concerned the Court before which that person have appeared as a witness and which disposed of the case can alone make a complaint." 8. Dealing with the scope of sub-section (6) of section 479-A, Criminal Procedure Code, the Supreme Court made the following observation at page 727 in Babu Lal v. State of Uttar Pradesh4: "It is clear from the terms of subsection (6) that the procedure prescribed thereby alone applies if the case falls within sub-section (1) of section 479-A. But sub-section (1) has a limited operation: it applies only to the prosecution of a witness appearing before the Court, who 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. The subsection may therefore be resorted to only in a case which falls within the first paragraph of section 193 of the Indian Penal Code, and allied sections 194 and 195-when it is committed by witness appearing before the Court. 9. It is clear that the scope and amplitude of section 476 on one side and section 479-A on the other in the Code of Criminal Procedure, are well defined. There is no question of one section overlapping the other. If a witness is found to have given false evidence or fabricated false evidence at a trial or enquiry before a Judge or Magistrate and the false evidence adduced before the Court appears to be an offence falling within the ambit of sections 193 to 195 of the Indian Penal Code, the Court before whom the witness has given false evidence or fabricated false evidence is bound to follow the procedure laid down in section 479-A of the Criminal Procedure Code. In such a case the Court has no jurisdiction to switch on to section 476 for any action to be taken against the witness. 10. It is important to note that two conditions have to be fulfilled before the exercise of the powers under section 479-A. The first of those conditions is that the Court must form an opinion that the person has committed one of the two categories of offences referred to in section 479-A and the other condition is that the Court must come to the conclusion that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that a witness should be prosecuted for an offence which appears to have been committed by him. This conclusion as well as opinion by the Court must be arrived at when the judgment is to be delivered or at the final order after trial; the Court, however, cannot resort to section 476 at that stage or later to make a complaint against the witness as it is clear that provisions of sections 476 to 479 inclusive have been totally excluded where the offence is of the kind specified in section 479-A and if in such a case action is not taken under section 479-A no action can be taken under sections 476 to 479 inclusive. 11. In the light of the principle of law evolved in the prosecution of witnesses who give false evidence before a Court at the trial or enquiry pending in such Courts we have to examine as to how the notice issued in the case in hand is vitiated. Evidently the learned Assistant Sessions Judge has issued the notice under section 476, Criminal Procedure Code. The notice under section 476 in the circumstances of the case is not correct. P.W.1 gave evidence at a Sessions trial. The Assistant Sessions Judge, after conclusion of the trial, found when he delivered the judgment, that P.W. 1 had given false evidence, an offence falling under section 193, Indian Penal Code. In that case the Assistant Sessions Judge should have issued the notice under section 479-A(1), Criminal Procedure Code. It is futile to argue that the section quoted as 476 may be a mistake for section 479-A(1), Criminal Procedure Code. Assuming it to be a mistake, still the Assistant Sessions Judge should have recorded a finding as required by section 479-A(1), Criminal Procedure Code, before the notice was issued. It is very important that the trial Judge or the appellate Judge who exercises jurisdiction under section 479-A(1) should come to a conclusion and express an opinion in terms of the provisions of that section that it is in the interest of justice that the witness shall be prosecuted. The Assistant Sessions Judge did not conform to the provisions of section 479-A(1) before he decided to issue notice to P.W. 1 in this case. If the Court does not form an opinion that the witness has intentionally given false evidence or intentionally fabricated false evidence, no question of making a complaint can properly arise. The Assistant Sessions Judge did not conform to the provisions of section 479-A(1) before he decided to issue notice to P.W. 1 in this case. If the Court does not form an opinion that the witness has intentionally given false evidence or intentionally fabricated false evidence, no question of making a complaint can properly arise. Where the Court formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interest of justice to make a complaint, it has a discretion not to make a complaint. The learned Assistant Sessions Judge did not bestow his thought on the. provisions of section 479-A(1), Criminal Procedure Code to come to a conclusion one way or the other. Unless the provisions of section 479-A(1). Criminal Procedure Code, are not strictly complied with, it is not open to the trial Judge to issue notice purporting to be under that section. But in this case he had chosen to issue the notice under section 476, Criminal Procedure Code, which is absolutely wrong. This is, therefore, a fit and proper case to quash the notice in exercise of the inherent power of this Court. 12. In the result, the petition is allowed The notice issued to P.W.1 (the petitioner) in Sessions Case No. 97 of 1972 of the Additional Sessions Court, Kottayam, to prosecute him for an offence under section 193 Indian Penal Code, is quashed as invalid in law. M.C.M. ----- Petition allowed. Notice quashed.