M. P. Paul v. A. M. Ali Mohemmed — 1973 DIGILAW 8 (KER)

Judgment :- The question of law arising in this Criminal Revision Petition is; what is the true meaning and scope of Section 476, Criminal Procedure Code in the context, of Section 479-A (1) and (6), Criminal Procedure Code, 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? 2. This question came up for consideration before this Court on account of a complaint which was directed to be launched by the Addl. Munsif-Rent Controller Ernakulam under Sections 195 (1) (b) and 476 (1), Criminal Procedure Code in respect of offences under Section 193 and 199 of the Indian Penal Code before the District Magistrate Judicial). Ernakulam, against the petitioner. The 1st respondent instituted a proceeding under Section 11 of the Kerala Buildings (Lease and Rent Control) Act against the petitioner for eviction out of a building which the 1st respondent leased to him, before the Munsif Rent Controller. In the course of that proceeding, the petitioner filed two interlocutory applications one I.A. No. 3476 of 1969 and the other I.A. No. 6173 of 1969 along with two vouchers marked as Exts. D. 7 and D. 8 in support of his case that a sum of Rs. 85.60 expended by him towards the repairs of the building in question had been adjusted towards the arrears of rent due to the 1st respondent. The 1st respondent examined as C.P.W. 4, denied the execution of the vouchers as well as the alleged adjustment. The petitioner, however, maintained that the averment in his affidavits were true and that the adjustment was supported by Exts. D. 7 and D. 8. The petitioner also gave evidence before the Munsif-Rent Controller to that effect. The petition for eviction was finally disposed of holding the contentions of the petitioner were not tenable. During the pendency of that petition and just before the final order was passed, the 1st respondent filed I.A. 2943 of 1972 out of which this revision petition has arisen praying the Munsif Rent Controller to institute prosecution against the petitioner under Section 476 (1) Criminal P.C. in respect of the offence of perjury alleged to have been committed by the petitioner during the eviction proceeding pending before the same Court for the alleged swearing of false affidavits and giving evidence before the Court in support of those affidavits. The learned Munsif-Rent Controller had no word to say in the final; order Passed in the eviction proceeding whether the petitioner committed an offence of perjury or not on account of his swearing to false affidavits or on account of giving false evidence before the Court. 3. In cases of certain offences affecting the administration of justice the procedure prescribed in Chapter XXXV of the Code of Criminal Procedure has to be followed. In respect of offences enumerated in Section 195 (1) (b) and (c) the offenders shall be proceeded against according to the procedure provided for tin Section 476, If a Civil, Revenue or Criminal Court is of opinion, that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in Section 195 (1) (b) or (c) which appears to have been committed in or in relation to a proceeding in that court such court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to hat effect and make a complaint thereof in writing and forward the same to a Magistrate of the First Class having jurisdiction. Section 476 A authorises a superior Court to make a complaint where a subordinate Court has omitted to do so in respect of offences and in the circumstances mentioned in Section 476 (1). Section 476 B provides for a right of appeal against the order making or refusing to make a complaint. Section 478 and 479 A which was added by the Code of Criminal Procedure (Amendment) Act, 26 of 1955 by the first sub-section reads as follows : "479. Section 476 B provides for a right of appeal against the order making or refusing to make a complaint. Section 478 and 479 A which was added by the Code of Criminal Procedure (Amendment) Act, 26 of 1955 by the first sub-section reads as follows : "479. A (1) Notwithstanding anything contained in Sections 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 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 defect 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." Sub-section (6) of this Section provides as follows : "(6) No proceedings shall be taken under Section 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." 4. The conditions necessary for the application of Section 479-A (1) are set forth in the Section itself. The conditions necessary for the application of Section 479-A (1) are set forth in the Section itself. One of the conditions is 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 has given false evidence and that in the interest of justice, it is expedient for the court that such witness should be prosecuted. But before doing so the witness might also be given an opportunity of being heard. It was not because of want of materials before the Court that it could not come to a conclusion that the petitioner committed perjury in the course of the proceedings before it. On the other hand the Court on the materials available before it did not find that the petitioner committed perjury or fabricated false evidence. It was only under a separate application filed; by the 1st respondent that the Court found on 21-9-1972 that the petitioner committed offences under Sections 193 and 199 of the Indian Penal Code. The procedure adopted by the Munsif-Rent Controller is against the express provision of Section 479-A(1) and (6) 5. The scope and ambit of Section 479 (1) and (6) were considered by the Supreme Court in Shabir Hussain Bholu v. State of Maharashtra (AIR 1963 SC 816) = (1993 (1) Cri.L.J. 803). The Supreme court pointed out in this decision that under Section 476 the proceeding could be started suo motu or on application by the aggrieved party, while under Section 479-A there was no need for an application for a proceeding to be instituted against the offender. The main trend of the reasoning in the supreme Court case is that once a Court does not think it necessary to act under Section 479 A, it cannot later on resort to Section 476 and make a complaint against the witness under that Section. The relevant passage concerning this aspect of the question in the above Supreme Court case reads as follows at page. 820 : "For exercising the powers conferred by this Section (Section 479-A) 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. 820 : "For exercising the powers conferred by this Section (Section 479-A) 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. Having laid down these conditions, Section 479-A prescribes the procedure to be followed by the Court. If the witness has given intentionally false evidence or intentionally fabricated false evidence no question of making a company the Court has formed an opinion that 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, it has a discretion not to make a complaint ...... It could not be urged that where the Court willfully refuses to record at the time of delivering the judgment or final order disposing of the proceeding before it that for the eradication; of the evil of perjury and in the interests of justice it was expedient that the witness should be prosecuted for the offence which appears to have been committed by him it could later resort to the prosecuted for the offence which appears to have been committed by him it could later resort to the provisions of Section 476. The position must be the same where it fails to take action though it is open to it to do so. It it is not as if, as the learned counsel for the respondent suggests, that the Court has an option to proceed under either Section 479-A or under Section 476 and that if it does not take action under Section 479-A it can do so under Section 476." 6. It it is not as if, as the learned counsel for the respondent suggests, that the Court has an option to proceed under either Section 479-A or under Section 476 and that if it does not take action under Section 479-A it can do so under Section 476." 6. The above decision was adopted and followed by this Court in a ruling in Kunnummal Raghavan v. Narayana Menon (AIR 1970 Kerala 15) = 1970 Cri.L.J. 53) wherein Raghavan J. (as he then was) dealt with the Supreme Court; decision as follows : "The Supreme Court has said in unmistakable terms that under Section 476 the action may proceed suo motu or on application while under Section 479-A no application seems to be contemplated. The Supreme Court has also said that it is not as if that Court has an option to proceed either under Section 479-A or under Section 476, and that if it does not take action under Section 479-A or under Section 476. The Supreme Court has said further that if the Court does not form an opinion when it disposes of the matter, that the witnesses has given intentionally false evidence or intentionally fabricated false evidence, no question of making a complaint can properly arise, and that, when 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 the discretion not to make a complaint. The Supreme Court has proceeded to lay down that once a Court does not think it necessary to act under Section 479-A it cannot late on resort to Section 476 and make a complaint against the witness under that section." 7. In view of these decision it is difficult to support the procedure adopted by the Munsif-Rent Controller in launching a prosecution against the petitioner under Section 476 after he had disposed of; the earlier proceeding in which the petitioner was purported to have committed perjury about which not conclusion was arrived at by the Court. The Munsif-Rent Controller did not think it necessary to follow the procedure contemplated in Section 479-A to launch the prosecution against the petitioner. The Munsif-Rent Controller did not think it necessary to follow the procedure contemplated in Section 479-A to launch the prosecution against the petitioner. Now the lower Court cannot turn round and fall back upon Section 476 to start fresh prosecution. The prosecution on hand is therefore incompetent. 8. The learned counsel for the 1st respondent has, however, relied upon a later decision of the Supreme Court in Kuppa Goundan v. M. S. P. Rajesh AIR 1966 SC 1863 = 1966 Cri.L.J. 1503 which could be distinguished on facts. In that case the materials which constituted the offence of perjury were not placed before the trial judge who was to launch the prosecution and a separate proceeding was started under Section 476 after the conclusion of the trial. The Supreme Court itself brought out the distinction between the two rulings. At page 1866 of the above Supreme Court decision the relevant passage dealing with thee distinction occurs It reads : "It is manifest that the material in that case (AIR 1963 SC 816) = (1963 (1) Cri.L.J. 803) was produced before the Sessions Court for coming to the conclusion that the appellant had committed perjury and so the procedure contemplated in Section 479-A (1) was applicable and since the Sessions Judge did not proceed under that section, though he could have done so, the bar contemplated by Clause (6) of Section 479-A operated and no action could have been taken under Section 476. Criminal Procedure Code. The ratio of that decision is not applicable to the present case because the material facts are different." 9. The earlier Supreme Court decision was as a matter of fact approved in the late Supreme Court case and here was no conflict between the two. 10. Next it is contended that the swearing to a false affidavit in a judicial proceeding is not sufficient to 'constitute perjury by a witness' for the purpose of action under Section 479-A and as such no action could have been taken under that Section, The petitioner who was party to the proceeding swore to an alleged false affidavit; he was not only a party; but a witness as well. Swearing to a false affidavit is giving false evidence and fabricating false evidence. There cannot be any doubt about it. The Supreme Court said so in Baban Singh v. Jagadish Singh AIR 1967 SC 68 = (1967 Cri.L.J. 6). Swearing to a false affidavit is giving false evidence and fabricating false evidence. There cannot be any doubt about it. The Supreme Court said so in Baban Singh v. Jagadish Singh AIR 1967 SC 68 = (1967 Cri.L.J. 6). This decision laid down that swearing a false affidavit is an offence falling under Sections 191 and 192 of the Indian Penal Code. The later decision of the Supreme Court Chajoo Ram v. Radhey Shyam 1971 1 SCC 774 = ((1971) Cri.L.J. 1096) restricted the scope of Section 479-A to the witnesses who appeared in Court and gave evidence. It is stated in the decision : "The crucial point to be noticed in this section (Section 479-A), is that it is only a witness who has appeared before the Court who can be proceeded against. Now, the appellant quite clearly did not appear as a witness before the High Court. He undoubtedly filed sworn affidavits but it is not possible to hold that by doing so he could be said to have appeared as a witness. Section 479-A, Criminal P.C. is, therefore, inapplicable and it cannot operate as a bar to the proceedings under Section 476 Criminal P.C." 11. In the instant case the petitioner appeared and gave evidence as a witness before the Munsif-Rent Controller in respect of the alleged false affidavits as well as the vouchers which were also found to be fabricated. Therefore there could not have been any bar for the Munsif-Rent Controller proceeding with the case in accordance with the provisions of Section 479-A. The failure of the trial court in not complying with the provisions of Section 479-A has affected the jurisdiction of that court to deal with the same question under Section 476 at a later stage. The order sanctioning prosecution under Section 476 Criminal P.C. is therefore incorrect and inoperative. 12. In the result, the Criminal Revision Petition is allowed. The order in I.A. No. 2943 of 1972 of the Additional Munsif-Rent Controller Ernakulam, sanctioning prosecution against the petitioner is set aside. Petition allowed.