Judgment Vishwanath Mishra, J. 1. This is an application under section 482 of the code of Criminal Procedure, 1973 (hereinafter called the Code) for quashing the cognizance taken on 20th November, 1975 by the Chief Judicial Magistrate, muzaffarpur in Suit no. C/6 of 1975/tr. No.554 of 1975. 2. Briefly stated, the case is that a proceeding under section 144 of the code was pending the Court of Sub-divisional Officer, Muzaffarpur between chalitar Mahto and the two petitioners here. Chalitar Mahto was first party there and the petitioners were the second party. The number of the case was miscellaneous Case No.133 of 1971. The notice had been issued in February, 1971 itself. That proceeding had been started on the report of Shri Kedar Nath jha, who was the Mukhiya of Narauli Gram Panchyat, It may be mentioned here that Chalitar Mahto was the Sarpanch and the cause for initiating the proceeding was the dispute about some land. In the proceeding, the first party, namely, Chalitar Mahto took a plea that the report of the Mukhiya was forged. The Mukhiya had also sworn an affidavit to that effect, but that had not been filed in that proceeding. A copy of the affidavit has been annexed as annexure 2 to this petition. Any way, the case ended in favour of the first party, namely, Chalitar Mahto, on 10.4.1971 (vide order Annexure 3 to the petition ). 3. Basing his claim on the order in the proceeding under section 144 of the Code, one Narayan Mahto filed a petition before the Circle Officer, Mushahari on 8.12.1971 for mutation of his name in the record of the State saying that the proceeding Case No.133 of 1971 had been decided in his favour on basis of the report of Shri Kedarnath Jha, Mukhiya, vide application (Annexure 4) to this petition. The relationship between Narayan Mahto and Chalitar Mahto is not clear from the record, but since the proceeding under section 144 of the Code i had ended in favour of Chalitar Mahto it can be safely presumed that they were close relations. 4. Long after the first party (Chalitar Mahto) filed an application before the Sub-divisional Officer for initiating a proceeding under section 476 of the code against the petitioners (who were second party in the proceeding) for forging the report of the Mukhiya in the proceeding. 4. Long after the first party (Chalitar Mahto) filed an application before the Sub-divisional Officer for initiating a proceeding under section 476 of the code against the petitioners (who were second party in the proceeding) for forging the report of the Mukhiya in the proceeding. The Sub divisional Officer directed Shri S. N. Jha, Magistrate 1st class, to hold an enquiry into the matter. The petitioners objected to the jurisdiction of -Shri Jha to enquire into the matter. As said in the petition, Shri Jha did not bother to get the report or signature of the Mukhiya examined by any expert and did not even care to examine if the petitioners had got the same filed in the court. Any way, Shri Jha submitted a report which is Annexure 6 to the petition. The report was received by the sub-divisional Officer on 31.10.1972. Shri Jha came to the conclusion that the report of the Mukhiya was forged and it did not bear his genuine signature or seal. Here itself, it may be mentioned that on the point as to who had forged it and used it, Shri Jha had said as follows : "the other question as to who forged it and used this forged report stands answered by the evidence of other witnesses who had either heard the opposite party conspiring to forge a report for getting a proceeding under section 144 of the Criminal Procedure Code started and who have seen filing of the said report by opposite party prahlad Singh in the office of the Sub-divisional Magistrate. " The learned S. D. O. , did not take any action on this report for about three years, but on 15.11.1975, without giving any notice to the petitioners, he lodged a complaint against the petitioners for forging the report and filed it in the court of the Chief Judicial Magistrate (complaint Annexure 8 to the petition ). This complaint was received in the court of the Chief Judicial Magistrate, Muzaffarpur, on 20.11.1975. Cognizance was taken on that very date under sections 465 and 120-B of the Indian Penal Code against the petitioners of this case and it was transferred to the file of Shri S. P. Singh, Judicial Magistrate, 1st Class, muzaffarpur, for disposal. Processes were ordered to be issued, whereupon this petition under section 482 of the Code was filed for quashing the cognizance. 5. Processes were ordered to be issued, whereupon this petition under section 482 of the Code was filed for quashing the cognizance. 5. There is no dispute on the point that in the instant case, this provision of the Code of Criminal Procedure, 1898 (hereinafter to be called, toe Old code) applies. The cognizance has been taken under section 465/120-B of the indian Penal Code i. e. for committing forgery and for criminal conspiracy in respect of that forgery. The forgery is said to have been committed in respect of a proceeding in court and that is why a complaint has been lodged by the Magistrate. The procedure prescribed for such cases is to be found in sections 476 and 479-A of the Old Code. The complaint having been made mainly for the i offence of forgery (section 465, Indian Penal Code) is covered by both sections 476 and 479-A of the Old Code. There is, however, difference in the procedure prescribed by both the sections. Since the validity of the procedure adopted in this case has been seriously challenged in this Court, it will be desirable at the first instance to examine as to which of the procedures (prescribed by sections 476 4 and 479-A of the Old Code) was required to be followed in this case and thereafter it will be examined if the proper procedure had been followed or not. 6. The relevant portion of section 476 of the Old Code reads as follows: "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 interest 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. . . . . " So far the instant case is concerned, it appears from above that-i) the court has to form an opinion that it is expedient in the interest of justice that an enquiry should be made into the offence ; (ii) the court has to record a finding to the effect that it is expedient in the interest of justice that an enquiry should be made ; (iii) the offence should have been committed in or relation to a proceeding in that court; (iv) such court may hold such a preliminary enquiry as it may think necessary ; and (v) the court may make complaint in writing. 7. Now as has been shown above in this case, the court had not suo motu taken any step for filing the complaint. An application had been made to it by the first party. It may be also mentioned here that no finding has been recorded in his case that it was expedient in the interest of justice to make an enquiry and, the enquiry also was not made by the court which had tried the original case, but by another Magistrate Shri S. N. Jha. I now turn to section 479-A of the old Code, the relevant portion of which runs as follows : "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 used in any stage of the judicial proceeding, given false evidence or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for offence which appears to have been committed by him the court shall, at the time of the delivery of the judgment or finding or final order disposing of such proceeding, record to that effect stating its reasons there for and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint. . . . . . . . . . . " The procedural conditions for filing a complaint laid down in this are that the court should form an opinion- (i) that a witness has intentionally given false evidence in any stage of the judicial proceeding, or (ii) the witness has intentionally fabricated false evidence for the purpose of being used in the proceeding, and (iii) for eradication of the evils of perjury and fabrication of false evidence -and also in the interest of justice, it is expedient to prosecute such witness. If these conditions are satisfied, the court has to record a finding to that effect giving reasons therefor at the time of the delivery of the judgment itself. The court has however, the option of giving the witness an opportunity of being heard. 8 It would thus appear that this provision is meant specially for a witness who has intentionally given or fabricated false eyidence. A comparison between sections 476 and 479-A clearly show the distinction that Where section 479-A is meant specially for a witness, there is no such restriction is section 476 of the Old Code. Obviously, therefore, where there is a specifie provision, recourse for any action has to be taken under that provision itself. There is no dispute on the point that the petitioners in the instant case had also examined themselves as witnesses in the case, vide paragraph 3 of the petition where it has been said : "that the petitioners were both parties and witnesses in the proceeding. . . . . . " obviously, therefore, it is the provision of section 479-A of the Code, which would apply in the instant case. The non obstente clause at the commencement of section 479-A quoted above) also excludes the provisions of section 476. Formerly, there was difference of opinion between some of the High Courts as to whether both the provisions contained in sections 476 and 479-A could be available to the court in appropriate cases alternatively or not. The dispute has however, been set at rest by the decision of the Supreme Court in Sabir Hussain bholu V/s. State of Maharashtra, ( AIR 1963 SC 816 ). It is clear from the authority that if the case would come under section 479-A of the Old Code, recourse could not be taken for action against the witness under section 476 oft he old Code. It is clear from the authority that if the case would come under section 479-A of the Old Code, recourse could not be taken for action against the witness under section 476 oft he old Code. Obviousuly, therefore, this case has to be decided as per the touchstone provided by section 479-A of the Old Code, because the petitioners were witnesses in this case, allegation is of orging the report and causing it to be filed in the court. 9. Testing this case with reference to section 479-A, it is obvious that the proper procedure had not been followed. There could not have been a separate enquiry made before filing a complaint. It was incumbent upon the court which passed final order to record opinion at the time of passing the final order, its opinion that the petitioner had intentionally given false evidence or had intentionally fabricated the same and that for the purpose of being used in that proceeding. The court had also at that very time to say in the order itself that it considered it expedient to prosecute the petitioners in the interest of justice. Since these findings were not recorded by the Magistrate disposing of the proceeding, there could be no case for filing a complaint. Sec.479-A does not contemplate of any enquiry into the matter subsequent to the disposal of the case and further it does not contemplate an enquiry being made by any Magistrate other than the one who had disposed of the case. These defects are fatal to the prosecution and hence the prosecution of the petitioners cannot be said to be good in law. 10. The learned counsel for the petitioners has also urged the point of limitation in this case the occurrence, i. e. the filing of the so-called forged report had taken place in February, 1971 itself. The complaint has been lodged on 15.11.75, when the Code of Criminal Procedure, 1973 had come into force, this new Code has provided a limitation under section 468. The maximum period of limitation is three years. It was urged that when a complaint was being filed in 1975, the provisions of the New Code of 1973 would apply. There appears to be force in the argument. The Counsel appearing for the State has not been able to meet it. The maximum period of limitation is three years. It was urged that when a complaint was being filed in 1975, the provisions of the New Code of 1973 would apply. There appears to be force in the argument. The Counsel appearing for the State has not been able to meet it. It was also argued that the petitioners in the proceeding in whose favour the case had ended on basis of that report, had themselves applied for mutation on the basis of finding in the proceeding and, so they could not be allowed at a subsequent stage to challenge the report as forged and fabricated. Further it was argued that if it was Mukhiyas report, it was not known ho v these petitioners could be saddled with any responsibility regarding it. The finding of the enquiring Magistrate Shri S. N. Jha has also been seriously challanged. All these points, however, do not arise for decision, in view of the fact, that the prosecution cannot be maintained on account of the non-observance of the provisions contained in section 479-A of the Old Code. 11. In the result, the application is allowed and the cognizance taken by the learned Magistrate against the petitioner is quashed. Application allowed.