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PETITIONER: BABAN SINGH AND ANR.

       Vs.

RESPONDENT: JAGDISH SINGH & ORS.

DATE OF JUDGMENT: 08/02/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SUBBARAO, K. BACHAWAT, R.S.

CITATION:  1967 AIR   68            1966 SCR  (3) 552  CITATOR INFO :  F          1968 SC1422  (4)

ACT: Indian  Penal  Code,  1860,  ss.  191,  192  and  199-Filing affidavit  containing  false statements before  High  Court- Offence under which section committed. Code of Criminal Procedure, ss. 476 and 479-A(6)-Offenses by witnesses under ss. 191 and 192 Penal Code-S. 479-A  applies and action under s. 476 cannot be taken.

HEADNOTE: The  appellants  made affidavits in the High  Court  denying receipt  of  money by way of compromise in  a  first  appeal pending  before  that  Court. The  High  Court  ordered  the Registrar to hold an enquiry. The Registrar after  recording the  evidence of the parties reported that  the  appellants’ denial  of  receipt  of  money  was  false.  thereafter   an application  was made to the High Court under s. 476 of  the Code of Criminal Procedure which was kept pending and  taken up  after the appeal was decided. The High Court  held  that the offence committed by the appellants was one under s. 199 Indian  Penal  Code  and ordered the  Registrar  to  file  a complaint.  The appellants came to this Court under s. 476B. The  questions  for  consideration  were;  (1)  whether  the offence  committed by the appellants fell under s.  191  and 192  of  the  Penal Code or under s. 199,  and  (2)  whether proceedings  under  s.  479-A could  be  taken  against  the appellants, for if they could be, then action ought to  have been  taken  under  that section and s.  476  could  not  be invoked. HELD  : (i) When the appellants made declarations  in  their affidavits which were tendered in the High Court to be taken into consideration they intended the statements to appear in evidence, and so appearing, to cause the court to  entertain an erroneous opinion regarding the compromise Their  offence came  within the words of ss. 191/192 rather than g. 199  of the Indian Penal Code. [556 C] (ii) In  respect  of offenses under ss. 191 and 192  of  the Indian  Penal Code when committed by a witness action  under s. 479-A alone can be taken and action under s. 476 is ruled out because of sub-s. (6) of 9.    479-A. [556 E-G]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 74 of 1964. Appeal from the judgment and order dated October 3, 1963  of the  Patna  High Court in Criminal Misc.  Case  No.  366  of 1956. Naunit Lal, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Hidayatullah,  J.  This is an appeal under s. 476-B  of  the Code  of Criminal Procedure by one Baban Singh and his  wife Dharichhan  Kuer  against a judgment and order of  the  High Court at Patna                             553 ordering  the  Registrar to file a  complaint  against  them under  s.  199  of the Indian Penal Code  for  making  false affidavits.   The respondents are persons who had moved  the High  Court under s. 476 of the Code for the prosecution  of the appellants in the following circumstances. Jagdish  Singh and Parmhans were appellants in F. A. 301  of 1952 in the High Court at Patna.  Mst.  Dharichhan Kuer  was respondent  No. 13 in that appeal.  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  Parmhans  on the other.  Dharichhan  Kuer  and  Jagdish Singh swore an affidavit on June 22, 1953 in support of  the petition  for compromise which was filed in the High  Court. Baban Singh’s brother identified Dharichhan Kuer before  the Oath Commissioner and Rs. 4,000 were paid to Dharichhan Kuer under  the  terms of the compromise  in  the  Commissioner’s presence.   Dharichhan  Kuer also passed a receipt  and  her thumb  impression was identified by Baban  Singh’s  brother. The  petition of compromise was filed in court on  July  13, 1953.  The same day Baban Singh swore an affidavit (Ex.   B) denying  the  compromise or that his wife had  received  Rs. 4,000.   This affidavit was filed in the High Court on  July 31,  1953.  On September 9, 1953 Dharichhan Kuer also  filed an affidavit (Ex.  A) in support of her husband. As the compromise was in dispute the High Court ordered  the Registrar to hold an enquiry.  Nine witnesses were  examined on  behalf of Jagdish Singh and Parmhans including the  Oath Commissioner.   Dharichhan Kuer and her husband Baban  Singh gave  evidence on their own behalf.  The Registrar  reported on  July 14, 1954 that the compromise was genuine  and  that Dharichhan Kuer had, in fact, sworn the affidavit before the Oath Commissioner and had received Rs. 4,000.  B. N. Rai and Kanhaiya Singh, JJ. accepted the report by their order dated October  5,  1956.  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 costs Rs. 500.  Dharichhan Kuer deposited  this  amount in court on October  9,  1956.   The first appeal was then heard and disposed of. The  application under s. 476 out of which this  appeal  has arisen was filed during the pendency of the first appeal and was  taken up for hearing after the appeal was disposed  of. A  question  arose whether a complaint  for  prosecution  of Baban Singh and Dharichhan Kuer for an offence under s. 193, Indian  Penal Code could be filed in the High Court  because Baban  Singh and Dharichhan Kuer had deposed not before  the court  but before the Registrar.  Further s. 479A (to  which we  shall  refer presently) was introduced from  January  1, 1956 and thus on October 5,

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554 1956,  when  the  High  Court accepted  the  report  of  the Registrar,  it was in force.  The Divisional Bench  did  not consider  taking action under s. 193 because of s. 479A  and it  appears that the counsel for Jagdish Singh and  Parmhans also  conceded  that no prosecution could take  place  under that  section.  The High Court however,  considered  whether action  should  be taken in respect of  the  two  affidavits (Exs.   A  and  B).  It is not necessary  to  refer  to  the statements   in   these  affidavits  because  we   are   not considering  whether  they  were  true  or  false.   It  was contended before the High Court that a prosecution under  S. 199 of the Indian Penal Code would be equally covered by  s. 479A  and  as  the  procedure under  that  section  was  not followed  an  application for prosecution under S.  476  was barred.  This contention was not accepted by the High  Court and  after going into the expediency of the prosecution  the learned Judges ordered the Registrar of the High Court to  e a  complaint  before  the  appropriate  authority  for   the prosecution of the appellants.  The appellants now appeal as of right under s. 476B. At  the  hearing before us there was  no  representation  on behalf of the respondents.  Although notices were issued  to Jagdish  Singh,  Parmhans  and the  State  Government,  none appeared.  On hearing the learned counsel for the appellants we  are satisfied that this appeal must succeed.  The  short question  in  this case is whether S. 476 could  at  all  be invoked because of the bar contained in S. 479A sub S.  (6). The  sixth sub-section, to which we have referred lays  down that  no  proceedings shall be taken under ss.  476  to  479 (both 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 s.  479A.   The  point  to decide,  therefore,  is whether proceedings  under  s.  479A could be taken against Baban Singh and his wife, for if they could  be, then action ought to have been taken  under  that section  and s. 476 cannot be invoked.  Section 479A, in  so far as it is relevant to our purpose, provides as follows :-               "479-A.   Procedure in certain cases of  false               evidence.-               (1)   Notwithstanding  anything  contained  in               section  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 inten-               tionally  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  the               offence which appears to have been               555               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  therefore               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

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             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  com-               plaint  is a High Court, the complaint may  be               signed  by  such officer of the Court  as  the               Court may appoint. The learned Judges in the High Court did not take action  in respect of the offence of giving false evidence on oath,  as defined in s. 191 and punishable under s. 193 of the  Indian Penal  Code, because they were of the opinion that s.  479-A of  the  Code of Criminal Procedure would be  applicable  to that  offence  even  though evidence  was  recorded  by  the Registrar.   The High Court selected for action the  offence in  relation to the two affidavits holding that prima  facie an  offence under s. 199, Indian Penal Code  was  committed. That  offence  is also punishable in the same manner  as  if false  evidence was given.  The difference between  ss.  191 and  199  is  this; Section 191 deals  with  statements  and declarations  falsely made by a person legally bound  by  an oath  or by an express provision of law to state the  truth. Section  199  deals with statements  and  declarations  made voluntarily  provided  they  are capable of  being  used  as evidence  and  which the court is bound to receive  as  evi- dence. The  matter  has to be considered  from  three  standpoints. Does  the  swearing  of the false affidavits  amount  to  an offence  under s. 199, Indian Penal Code or under either  s. 191  or 192, Indian Penal Code ? If it comes under  the  two latter   sections,   the  present  prosecution   cannot   be sustained, Section 199 deals with a declaration and does not state  that  the  declaration must be  on  oath.   The  only condition necessary is that the declaration must be  capable of being used as evidence and which any court of justice  or any  public servant or other person, is bound or  authorised by  law  to  receive as evidence.  Section  191  deals  with evidence on oath and 556 s.   192  with fabricating false evidence.  If  we  consider this matter from the standpoint of s. 191, Indian.Penal Code the  offence is constituted by swearing falsely when one  is bound  by oath to state the truth because an affidavit is  a declaration  made  under  an oath.  The  definition  of  the offence  of  giving  false  evidence  thus  applies  to  the affidavits.  The offence may also fall within. 192.  It lays ,down  inter alia that a person is said to  fabricate  false evidence if he makes a document containing a false statement intending  that such false statement may appear in  evidence in  a judicial proceeding and so appearing in  evidence  may cause  any  person  who, in such proceeding is  to  form  an opinion  upon  the  evidence,  to  ,entertain  an  erroneous opinion  touching any point material to the result  of  such proceeding.   When  Baban  Singh and  Dharichhan  Kuer  made declarations in their affidavits which were tendered in  the ,High  Court to be taken into consideration,  they  intended the   statements  to  appear  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 ss.  191/192 rather than S. 199 of the Indian Penal Code.  They were thus prima  facie guilty of an offence of giving false  evidence

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or  of fabricating false evidence for the purpose  of  being used in a judicial proceeding. 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   :   (i) intentionally  give  false  evidence in  any  stage  of  the judicial  proceeding or (ii) intentionally  fabricate  false evidence  for the purpose of being used in any stage of  the judicial  proceeding.  The first refers to an offence  under s.  191/193 and the second to that under s. 192/193  of  the Indian  Penal  Code.   In respect  of  such  offenses-  when committed  by a witness, action under s. 479-A alone can  be taken.  The appellants were witnesses in the inquiry 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 under S. 479-A of  the Code of Criminal Procedure.  Not having done so, the  action under s. 476 of the Code of Criminal Procedure was not  open because of sub-s. (6) of s. 479-A and the order under appeal cannot be allowed to stand. In the result the appeal succeeds and is allowed.  The order for  the  prosecution of the appellants is set  aside.   The complaint, if filed, shall be withdrawn.                                          Appeal allowed. 557