Nalluri Nagabhushanam v. Kanigalpula Krishnamorthy
1999-11-30
MOHAMED MIRZA, P.CHANDRA REDDY
body1999
DigiLaw.ai
Chandra Reddy, C.J.- It is the scope and ambit of section 479-A, Criminal Procedure Code, that fall for determination in this Civil Revision Petition. The problem to be solved here arises in the following circumstances. The respondent obtained a decree against the petitioner in S.C. Suit No. 95 of 1950 on the file of the Subordinate Judge’s Court, Guntur, and transferred it to Kondru Nuchayya for consideration. The petitioner filed E.A. No. 471 of 1953 to record full satisfaction of the decree alleging that he paid the sum of Rs. 1,700 to the decree-holder on 21st June, 1953, in full satisfaction of the decree and the latter passed a receipt in token of having received that sum. The respondent opposed it pleading that the petitioner had not paid him any money and that he had not given any receipt evidencing this payment. After an elaborate enquiry into the matter, the Subordinate Judge dismissed the petition to record full satisfaction holding that the receipt alleged to have been parsed by the respondent in his favour was a forged one. The petitioner carried an appeal against that decision to the District Court but it was dismissed and the finding of the trial Court was affirmed. Subsequently, the respondent presented a petition before the Subordinate Judge’s Court under section 476, Criminal Procedure Code, to make a complaint against the petitioner for an offence under section 465, Indian Penal Code. This petition was resisted by the petitioner on the ground that the respondent was debarred from making the petition at that stage by reason of section 479-A, Criminal Procedure Code, which required that the Court at the time of delivery of judgment or final order should make a complaint in writing in regard thereto. This objection was overruled by the trial Court in the view that section 479-A, Criminal Procedure Code, did not abrogate the provisions of section 476, Criminal Procedure Code, and it directed a complaint to be filed against the petitioner for an offence under section 465, Indian Penal Code. The appeal filed by the petitioner against this order was unsuccessful. The District Judge expressed the opinion that section 479-A, Criminal Procedure Code, was only applicable when a witness was sought to be prosecuted for an offence of perjury and it had no application when the offence under section 465, Indian Penal Code, had been made out against a party.
The appeal filed by the petitioner against this order was unsuccessful. The District Judge expressed the opinion that section 479-A, Criminal Procedure Code, was only applicable when a witness was sought to be prosecuted for an offence of perjury and it had no application when the offence under section 465, Indian Penal Code, had been made out against a party. It is this conclusion of the District Judge that is assailed before us in this Revision Petition. The main contention urged on behalf of the petitioner is that when an offence is committed by any person who appears as a witness in a judicial proceeding, section 479-A, Criminal Procedure Code, is attracted and if no action is taken at the time of delivery of judgment or order, the party or one of the parties is precluded from making any complaint under that section. The foundation for this argument is the judgment of a single Judge of the Mysore High Court in Narajappa v. Chikkaramiah1. No doubt, this ruling lends colour to the argument of Sri Lakshmana Rao; learned counsel for the petitioner. In that case also the prosecution was for an offence under section 465, Indian Penal Code, yet it was laid down that having regard to the overriding provisions of section 479-A, Criminal Procedure Code, it would not be permissible to initiate proceedings as against any person appearing before any Court for having given false evidence or for having intentionally fabricated false evidence except in accordance with the provisions of section 479-A, Criminal Procedure Code, and that when once the person had appeared as a witness before the Court, then it would be the provisions of section 479-A of the Code that would be applicable and not any of the provisions contained in sections 476 to 479 of the Criminal Procedure Code. We express our respectful dissent from the principle enunciated by the learned Judge in that case.
We express our respectful dissent from the principle enunciated by the learned Judge in that case. In our opinion, section 479-A, Criminal Procedure Code, which is intended to deal with the evils of perjury by a witness in a summary way so that the punishment to be meted out to the witness in such a case may act as a deterrent, is restrictive in its operation, in that, it governs only the offence of giving false evidence or fabricating evidence punishable under sections 193 and 194, Indian Penal Code, while section 476, Criminal Procedure Code, covers a wide range of offences. A comparison of both the decisions would bring out the difference between the two, both in regard to procedure and also as to their respective operations. Section 476, Criminal Procedure Code, reads as follows: “(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: * * * * * * *”.
Section 479-A reads: “(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 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 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 there of 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 formed the same to a Magistrare 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: * * * * * * * (6) No proceeding 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.” It is seen that sub-section (6) operates as a bar to the initiation of proceedings under sections 476 to 479 only in the event of section 479-A being attracted, but not otherwise. The point, therefore, that calls for decision is whether an offence under section 465, Indian Penal Code, falls within the purview of section 479-A, Criminal Procedure Code. It is true that offences under sections 193, 194 and 465, Indian Penal Code, are governed by section 195, Criminal Procedure Code, but section 479-A, Criminal Procedure Code, does not take in all offences enumerated in section 195, Criminal Procedure Code, but, is limited to the offence of giving false evidence or intentionally fabricating false evidence for the purpose of being used in any stage of judicial proceeding.
If that were so, could it be promised that notwithstanding this, section 479-A, Criminal Procedure Code, would come in the way of filing a complaint after the delivery of judgment even in regard to an offence falling outside section 479-A, Criminal Procedure Code. Our affirmative answer is “No”. It is only in cases of giving false evidence or fabricating false evidence that section 479-A comes into play and not in regard to other offences, though they might come under section 195, Criminal Procedure Code. The mere fact that a person who committed the offence of forgery happens to give evidence in the judicial proceeding does not take it out of the scope of section 476, Criminal Procedure Code. In such cases, it is section 476, Criminal Procedure Code, which is more comprehensive in its operation, that would be applicable and not section 479-A. In the consideration of the problem that falls for determination here, it should not be forgotten that the intendment of section 479-A, Criminal Procedure Code, is, asalready pointed out, to punish perjurers in a summary fashion so that it might serve as a deterrent to such persons. Surely, that section is not intended to confer a privilege on persons who commit offences which could be dealt with under section 476, Criminal Procedure Code. The object of that section was only eradication of the evils of perjury and fabrication of false evidence. Thus, section 479-A, is inapplicable if the offence complained of is not one of giving false evidence or fabricating false evidence in a judicial proceeding. For the present purpose, it is unnecessary to refer to the other differences between section 476 and section 479-A, Criminal Procedure Code. Suffice it to say that, when the offence to be complained of is one other than the one falling under section 193 or section 194, Indian Penal Code, it is section 476, Criminal Procedure Code that is applicable and not section 479-A despite the fact that the person to be complained against appears as a witness in the Court. It follows that this contention of the petitioner was rightly rejected by the lower appellate Court. It was then faintly urged by Sri Lakshmana Rao, learned counsel for the petitioner, that there was no clear finding by the trial Court that an offence appears to have been committed in relation to a proceeding in that Court.
It follows that this contention of the petitioner was rightly rejected by the lower appellate Court. It was then faintly urged by Sri Lakshmana Rao, learned counsel for the petitioner, that there was no clear finding by the trial Court that an offence appears to have been committed in relation to a proceeding in that Court. This point was not raised either in the lower appellate Court or even in the memorandum of grounds and it would not be in the interests of justice to allow it to be raised for the first time in the course of arguments. Even otherwise there is no substance in this argument. That finding is implicit in the statement of the trial Court: “The finding of the Court is clear and emphatic”. This refers to the finding in E.A. No. 571 of 1953. This contention also has to be rejected. In the result, the Civil Revision Petition fails and is dismissed with costs. We are obliged to the Public Prosecutor for helping us as amicus curiae. A.S.R. ----- Revision dismissed.