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PETITIONER: BABU LAL

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND OTHERS

DATE OF JUDGMENT: 18/09/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. DAYAL, RAGHUBAR

CITATION:  1964 AIR  725            1964 SCR  (4) 957

ACT: Code  of Criminal Procedure, 1898(Act 5 of 1898),  ss.  476, 479A-Using  forged document-Whether offence contemplated  by s.   479A(1)-Interpretation of s. 479A.

HEADNOTE: In a civil suit the appellant was examined as a witness  and he tendered in evidence an agreement, which in the Munsiff’s opinion  was forged.  The Munsiff, however, in his  judgment did  not  record  the  opinion  required  for  ordering  the prosecution  of the appellant under s. 479A of the  Code  of Criminal  Procedure.   Respondents  2 to  5,  who  were  the plaintiffs  in  the suit, had applied, before the  suit  was disposed of, that action be taken against the appellant  un- der s. 479A of the Code of Criminal Procedure.  In disposing of the suit the Munsiff did not record the opinion which  he was  required to record if he desired that action should  be taken  against  the  appellant under s. 479A.   But  on  the application  of the Respondents, the Munsiff  directed  that complaint  be made against the appellant in exercise of  the powers  vested under s. 476 Code of Criminal  Procedure  for the offence of fraudulently or dishonestly using as  genuine a document which the appellant knew or had reason to believe to  be forged.  This order of the Munsiff was  confirmed  in appeal  by the District Judge, and the revision to the  High Court, too, was dismissed.  In appeal by special leave,- HELD:  (i)  Section 479A of the Code of  Criminal  Procedure excludes  the jurisdiction of the Court to proceed under  s. 476  to 479, only in respect of offences under s.  195(b)  & (c)  of  the  Code  of Criminal  Procedure  where  a  person appearing  before the Court or a witness  has  intentionally given  false evidence in any stage of a judicial  proceeding or  has  intentionally  fabricated false  evidence  for  the purpose  of  being used in any stage of  the  judicial  pro- ceeding. 958 (ii)The offence punishable under s. 471 of the Indian Penal Code  does not fall within the category contemplated  by  s. 479A   Code  of  Criminal  Procedure,  and  therefore,   the

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authority  of the Court to act under s. 476 of the  Code  of Criminal Procedure is not impaired. Raghubar Prasad Dudhwalla v. Chamanlal Mehra, [1964] 3 S. C. R.  980  and Shabir Hussain Bholu v. State  of  Maharashtra, [1963] Supp. 1 S. C. R. 501, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No.708 of 1962. Appeal  by special leave from the judgment and  order  dated January  31,  1962,  of the Allahabad High  Court  in  Civil Revision No. 60 of 1960. C.B. Agarwala, K. P. Gupta for K. R. Krishnaswamy for the appellant. C.   P. Lal, for respondent no. 1. S.   P. Sinha and M. I. Khotvaja, for respondents nos. to 5. September 18, 1963.  The judgment of the Court was delivered by SHAH,  J.-Jairam  and  three  others-hereafter  collectively called  "the  plaintiffs"-sued Babu  Lal-appellant  in  this appeal-in the Court of the Munsiff, Koil, District  Aligarh, for a decree for possession of a strip of land, for  removal of  a  wall  and  a slab of  stone  and  for  an  injunction restraining  the  making  of certain  constructions  in  the northern  wall  of the plaintiffs’  house.   The  plaintiffs claimed  that Mohini wife of jairam the first plaintiff  had purchased  the  house occupied by them by  sale  deed  dated August  1, 1932 from the vendor who was also  named  Mohini, who  in her turn had purchased the house by sale deed  dated July 25, 1917 from the original owner Kishan Lal. Babu  Lal  who  is the son of Kishan Lal  pleaded  that  the vendor Mohini had acquired only a life interest in the house by the deed under which the property was conveyed to her  by Kishan  Lal and the plaintiffs’  predecessor-ininterest  had acquired no title under the sale deed dated August 1,  1932. In support of this plea Babu Lal gave evidence at the  trial of the suit and tendered in evidence an agreement dated July 25,  1917 purported to be executed by Mohini to whom  Kishan Lal had conveyed the 959 house reciting that the sale deed in her favour was  without consideration  and that she had only a life interest in  the house. The Trial judge held that the agreement relied upon by  Babu Lal  was  "not  genuine" and  that  Mohini,  predecessor-in- interest  of  the plaintiffs had under the sale  deed  dated August 1, 1932 acquired title to the house in dispute and on that  footing decreed the suit.  In appeal to  the  District Court the finding that the agreement was not genuine was not challenged. Before  the  suit  was  disposed  of  by  the  Munsiff   the plaintiffs had applied that action be taken against Babu Lal under  s.  479A of the Code of Criminal  Procedure,  because Babu Lal had given false evidence before the Court, that  he had forged the agreement relied upon by him, and that he had fabricated  false  evidence  and had  used  such  fabricated evidence  at the trial, and had thereby  committed  offences punishable  under  ss. 193, 209, 463 and 471 of  the  Indian Penal Code.  The Munsiff did not dispose of the  application by  his judgment deciding the suit.  After the  disposal  of the  suit the plaintiffs moved the Munsiff for an  order  on the  application  filed by them.  The Munsiff held  that  no action  could be taken against Babu Lal for the  offence  of intentionally   giving  false  evidence   or   intentionally

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fabricating false evidence for the purpose of     being used in the suit for such action was barred by s. 479A  Code   of Criminal Procedure, but in his opinion it    was   expedient in the interest of justice that a complaint be filed against Babu  Lal  for offences "under ss. 463 and 471  I.P.  Code". Pursuant to this order on May 30, 1959 a complaint was filed against  Babu  Lal charging him with committing  an  offence under s. 471 read with s. 463 Indian Penal Code by using the agreement  dated July 25, 1917 knowing or having  reason  to believe that it was a forged document.  The order passed  by Trial  Court was confirmed in appeal by the District  Judge, Aligarh  and  a revision application to the  High  Court  of Allahabad challenging the order was dismissed.  With special leave, Babu Lal has appealed to this Court. Chapter  XXXV of the Code of Criminal  Procedure  prescribes the procedure to be followed for prosecution of offenders in case of certain offences affecting the adminis- 960 tration of justice.  Section 476 sets out the procedure  for prosecution  of  offenders  for offences  enumerated  in  s. 195(1)(b)  &  (c) of the Code of Criminal Procedure.   If  a Civil,  Revenue or Criminal Court is of opinion, that it  is expedient  in  the interests of justice that an  enquiry  be made  into  any offence referred to in s. 195(1)(b)  or  (c) which  appears to have been committed in or in  relation  to 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  and forward the same to a Magistrate of  the  first class  having  jurisdiction.   Section  476A  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 s. 476(1).  Section 476B provides for  a right of appeal against the order making or  refusing to  make  complaint.   Sections 478 and 479  deal  with  the procedure  which  may be followed in  certain  grave  cases. Section  479A  which  was  added by  the  Code  of  Criminal Procedure  (Amendment)  Act  26 of 1955 by  the  first  sub- section (insofar as it is material) provides : "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 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 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               *     *         *              *." 961 And sub-s. (6) enacts that : "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."

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It is clear from the terms of sub-s. (6) that the  procedure prescribed  thereby alone applies if the case  falls  within sub-s.  (1).   But sub-s. (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 sub,section  may therefore  be resorted to only in a case which falls  within the  first paragraph of s. 193 of the Indian Penal Code  and allied sections 194 & 195-when it is committed by a  witness appearing before the Court. Babu  Lal was examined as a witness in the Civil suit  filed by  the plaintiffs.  He tendered in evidence  the  agreement dated  July  25, 1917.  In the opinion of  the  Munsiff  the document was a forged document.  The Munsiff however by  his judgment  disposing  of the suit did not record  an  opinion that  it was expedient for the eradication of the  evils  of perjury  and  fabrication  of false  evidence,  and  in  the interests  of justice to prosecute Babu Lal for the  offence of intentionally giving false evidence, or for intentionally fabricating false evidence for the purpose of being used  at any  stage  of  the  judicial  proceeding.   He  could   not therefore  after the disposal of the suit make  a  complaint for  the  offence of giving false  evidence  or  fabricating false  evidence.  The Trial Court accepted this  restriction upon its jurisdiction and directed in exercise of the powers vested under S. 476 Criminal Procedure Code the making of  a complaint of an offence of fraudulently or dishonestly using as  genuine a document which Babu Lai knew or had reason  to believe to be a forged document. It is urged by counsel for Babu Lal that a complaint for  an offence  under  s. 471 Indian Penal Code may  also  be  made under s. 479A Code of Criminal Procedure and not  otherwise. The  phraseology used in s. 479A is plain and unambiguous  : it excludes the jurisdiction of the 962 Court  to  proceed  under  ss. 476 to  479,  in  respect  of offences  specified  in s. 195(1) (b) & (c) of the  Code  of Criminal Procedure only where a person appearing before  the Court 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.  An offence punishable under s. 471 Indian Penal Code being one of fraudulently  or dishonestly using as genuine any document which the  accused knows or has reason to believe to be a forged document, does not  fall within the category contemplated by s. 479A(1)  of the  Code of Criminal Procedure and therefore the  authority of the Court to act under s. 476 of the Code is impaired  by sub-s.  (6)  of  s. 479A.  This  Court  in  Raghubir  Prosad Dudhtvalla v. Chamanlal Mehra and another(1) observed : "The special procedure of s. 479A is prescribed only for the prosecution  of  a  witness  for the  act  of  giving  false evidence  in  any  stage  of  judicial  proceeding  or   for fabrication of false evidence for the purpose of being  used in any stage of a judicial proceeding.  There is nothing  in the  section  which precludes the application of  any  other procedure  prescribed  by  the  Code  in  respect  of  other offences. Examining  the  special procedure prescribed by s.  479A  in that  light,  it  is important to notice  that  the  act  of intentionally  giving  false  evidence in  any  stage  of  a judicial  proceeding  and  the  act  of  fabricating   false evidence  for  the purpose of being used in any stage  of  a

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judicial  proceeding  mentioned in s. 479A of  the  Code  of Criminal  Procedure are the acts which are  made  punishable under  s. 193 of the Indian Penal Code and cognate  sections in Chapter XI." It  is  true  that some of the ingredients  of  the  act  of fabricating  false evidence which is penalised under s.  193 Indian Penal Code and of making a false document and thereby committing  forgery  within the meaning of ss. 463  and  464 Indian  Penal Code are common.  A person by making  a  false entry  in  any  book or record or  by  making  any  document containing a false statement may, if the (1) [1964] 3 S.C.R. 980. 963 prescribed  conditions  of s. 463 are fulfilled,  commit  an offence  of  forgery.  But the  important  ingredient  which constitutes fabrication of false evidence within the meaning of  s. 192 Indian Penal Code besides causing a  circumstance to  exist  or making a false document-to use  a  compendious expression-is the intention that the circumstance so  caused to  exist or the false document made may appear in  evidence in  a  judicial proceeding, or before a  public  servant  or before  an  arbitrator,  and  lead  to  the  forming  of  an erroneous opinion touching any point material to the  result of   the  proceeding.   The  offences  of  forgery  and   of fabricating false evidence for the purpose of using it in  a judicial  proceeding are therefore distinct, and within  the description  of fabricating false evidence for  the  purpose specified  in s. 47.9A Criminal Procedure Code, the  offence of  forgery  is  not included.  In  any  event  the  offence penalised  under  s.  471 Indian Penal  Code  can  never  be covered  by  sub-s. (1) of s. 479A.   Therefore  for  taking proceeding  against  a person who is found to  have  used  a false  document dishonestly or fraudulently in any  judicial proceeding,  resort may only be had to s. 476 Code  of  Cri- minal Procedure. We may point out in the following observation made by  this Court in dealing with the true interpretation of s.    479A Code of Criminal Procedure in Shabir Hussain Bholu v.  State of Maharashtra (1) : "From this it would follow that whereas  s. 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 ss.  193               to  195 and s. 471 1. P. C. are concerned  the               Court before which that person has appeared as               a  witness and which disposed of the case  can               alone  make  a complaint", the  words "and s.71" appear to have crept in by  oversight. That is clear from the observation made by the Court earlier inthe  judgment,  that  the discussion  relating  to  the exclusiveoperation  of  s.  479A of the  Code  of  Criminal Procedurewas restricted to the offence of   inten- (1) [1963] Supp.  1 S.C.R.  501. 964 tionally giving false evidence in any stage of judicial pro- ceeding. The appeal therefore fails and is dismissed.  No order as to costs. Appeal dismissed.