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PETITIONER: KUPPA GOUNDAN & ANR.

       Vs.

RESPONDENT: M.S.P. RAJESH

DATE OF JUDGMENT: 05/05/1966

BENCH:

ACT: Criminal  Procedure Code,1898 (Act 5 of  1898).s.  476-Trial concluded-Maintainability of the complaint for perjury.

HEADNOTE: At  a  trial,  the  appellants  gave  evidence  against  the respondent.    After  the  Conclusion  of  the   trial   the respondent  filed a petition in the court of the  Magistrate under  s.  476(1) Criminal Procedure Code, praying  for  the prosecution  of  the appellants for  giving  false  evidence under s. 193 Indian Penal Code, and adduced evidence in sup- port of his contention.  The Magistrate thought that in  the interest of justice the, appellants should be prosecuted and accordingly  filed  a complaint.  The  appellants  contended that  the complaint was not maintainable because the  trying Magistrate  had not followed the procedure under  s.  479-A, Criminal Procedure Code and it was therefore not open to the Magistrate to take recourse to the provisions of s. 476. HELD:-The  prosecution  of  the  appellants  under   the provisions  of  s.  476  Criminal  Procedure  Code  by   the Magistrate  after  the conclusion of the trial  was  legally valid and wag not affected by the bar of cl. (6) of s.  479- A.  Criminal Procedure Code. [377G] The bar of cl. (6) will not apply to a case where perjury is detected  not merely with reference to the evidence  adduced at  the trial but with reference to the evidence adduced  in some  other distinct proceeding not then brought before  the court  or because there is some other material  subsequently produced  after the conclusion of the trial and delivery  of judgment which renders the prosecution for perjury essential in the interests of justice. [377 F] Shabir Hussein Bholu, v. State of Maharashtra, [1963]  Supp. I S.C.R. 501, explained and distinguished. C.P. Kasi Thevar v. Chinniah Konar, A.I.R. 1960’Mad. 77  and In re Gnanamuthu A.I.R. 1964 Mad. 446, approved. Jai  Bir  Singh  v. Malkhan Singh.  A.I.R.  1958  All.  364, Parsotam  Lal  Vir Bhan v. Madan Lal Bashambar  Das,  A.I.R. 1959  Punj. 145 and Amolak v. State.  A.I.R. 1961 Rai.  220, disapproved.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION:- Criminal Appeal No. 69  of 1966. Appeal  by special leave from the judgment and  order  dated December  9,  1965  of the Madras  High  Court  in  Criminal Revision  Case  No.  1261  of  1964  and  Criminal  Revision Petition No. 1235 of 1964.

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R. Thiagarajan, for the appellants. Purshottam  Trikamdas  and  T.  V.  R.  Tatachari,  for  the respondent. 374 The Judgment of the Court was delivered by Ramaswami,  J.  The  2nd petitioner Kuppuswami  lodged  a  a complaint  with Yercaud Police on October 12, 1963  alleging that  the respondent, M. S. P. Rajesh and other persons  had formed an unlawful assembly and committed offences of  house trespass,  mischief and causing hurt at 10 p.m.  on  October 11,   1963.   The  complaint  was  the   subject-matter   of investigation  by the police who did not present  a  charge- sheet  against  respondent,  M. S. P.  Rajesh  but  filed  a charge-sheet against 4 other persons under ss. 323, 325  and 448, Indian Penal Code in C.C. No. 3097/1963 in the Court of Sub-Magistrat-  3,  Salem.  The case was tried by  the  Sub- Magistrate  who ultimately acquitted all the accused by  his judgment  dated  December  13,  1963.   In  the  course   of evidence,  at that trial the 1st petitioner was examined  as P.W. 1 and 2nd petitioner as P.W. 2 and it is alleged by the respondent  that the petitioner gave false evidence  to  the effect  that the respondent was also among  the  trespassers and  assailants  and  that he was armed  with  a  gun  which another accused took from him.  After the conclusion of  the trial  the respondent filed a petition in the court  of  the Magistrate under S. 476(1), Criminal Procedure Code alleging that  on  October  11,  1962 he  along  with  certain  other Directors  had attended a meeting of the Board of  Directors of  Chembra Peak Estate Ltd. from 4.30 p.m. to 5.15 p.m.  at Bangalore  and  that he was not at Yercaud  on  October  11, 1963, and prayed for the prosecution of the petitioners  for giving false evidence under s. 193, Indian Penal Code.   The respondent  produced  a, copy of the Draft  Minutes  of  the Board meeting and also cited certain witnesses in support of his case.  After considering the matter, the  Sub-Magistrate of  Salem  held- that he was satisfied that  the  respondent could  not  have been present at the alleged  occurrence  on October  11,  1963  at  Yercaud  and  that  P.W.s  1  and  2 deliberately committed perjury and implicated Mr. Rajesh  as among  the assailants.  The Sub-Magistrate thought  that  in the interest of justice the petitioners should be prosecuted under  S.  193, Indian Penal Code and  accordingly  filed  a complaint against the petitioners under S. 193, Indian Penal Code in the Court of District Magistrate (Judicial),  Salem. The  petitioners  contended,  that  the  complaint  was  not maintainable  in law because the trying Magistrate  had  not followed  the procedure under s. 479-A,  Criminal  Procedure Code and it was therefore not open to the Magistrate to take recourse  to  the provisions of S. 476,  Criminal  Procedure Code.   By  his order dated February 10, 1964  the  District Magistrate  discharged  the  petitioners  holding  that  the complaint  was  not sustainable in view of the  decision  of this   Court   in   Shafer  Hussain  Bholu   v.   State   of Maharashtra(1).   Thereupon the respondent  filed  Criminal. R.C. No. 1261 of 1964 in the Madras High Court against   the order of the District Magistrate (Judicial), Salem.  By his 375 judgment  dated  December 9, 1965  Anantanarayanan,  J.  set aside  the orders of the District Magistrate (Judicial)  and directed  that the case should be taken up by  the  District Magistrate  and the trial proceeded with in accordance  with law. This appeal is brought, by special leave, from the order  of the  Madras High Court dated December 9, 1965 in Crl.   R.C. No. 1261 of 1964.

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The question of law arising in this case is-what is the true meaning and scope of s. 476, Criminal Procedure Code in  the context of s. 479-A(1) and (6), Criminal Procedure Code with regard to a prosecution authorised by a Court in respect  of an  offence of prejury committed before it in the course  of the trial? 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  administration  of justice.  Section 4/6 sets out the procedure for prosecution of offenders for offences enumerated in s. 195(1)(b) and (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 should 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 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 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 s. 476(1).  Section 476-B provides for a right of  appeal against  the order making or refusing to make a,  complaint. Sections,  478 and 479 deal with the procedure which may  be followed  in certain grave cases.  Section 479-A  which  was added  by the Code of Criminal Procedure (Amendment) Act  26 of  1955  by  the  first sub-section (in so  far  as  it  is material) provides 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               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               37  6               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........................"               Sub-section  (6)  of this  section  enacts  as               follows:-               "(6)  No  proceedings  shall  be  taken  under               sections   476  to  479  inclusive   for   the               prosecution   of  a  person  for   giving   or

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             fabricating  false evidence, if in respect  of               such  a person proceedings may be taken  under               this section. The  scheme of s. 479-A is to enact a special procedure  for the  more expeditious and effective manner of  dealing  with certain  cases of perjury and fabrication of false  evidence by  witnesses in the course of judicial proceedings.   There is, however, a necessary condition for the application of s. 479-A,  Criminal Procedure Code.  The condition 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 or witnesses, is, or, are  giving  false evidence, if the court could not form any opinion about  the falsity of the evidence of the witness appearing before  it, then  certainly the court cannot at the time  of  delivering its  judgment,  record any finding about the  same.   It  is manifest  that  a  court can come to  a  conclusion  that  a witness is false only when there are materials placed before it  to  justify that opinion.  If no  materials  are  placed before the court to enable the court to form an opinion that a witness is giving false evidence, then certainly it  could not form that opinion.  In the present case, the  respondent produced  material  before the trial court on  December  23, 1963 after the conclusion of the trial that the  petitioners had  given  false evidence in the case  and  the  respondent produced  the necessary documents along with an  application for  proceeding  against  the  petitioners  under  s.   476, Criminal Procedure Code.  Till those documents were produced there  was no opportunity or occasion for the magistrate  to form an opinion about the falsity of the evidence adduced by the  petitioners.   It is, therefore, manifest that  at  the time  when the judgment was delivered the magistrate had  no material before him to form an opinion that the  petitioners had  given false evidence.  It is only after the  respondent had  made his application on December 23, 1963  and  brought the  necessary material to the notice of the court that  the falsity  of the evidence of the petitioners became  apparent and  the  magistrate was in a position to  form  an  opinion about the falsity of the evidence given by the  petitioners. It is, therefore, clear that s. 479-A will not be applicable on the facts of this case, and if the provisions of s. 479-A will not apply on the facts of this case it follows that the bar  contemplated  by cl. (6) of that section  will  not  be applicable.  The reason is that cl. (6) can be invoked  only in cases in which 377 s.479-A(1) will be applicable.  The crucial words of  cl. (6)  are "if in respect of such a person proceedings may  be taken  under this section".  It is clear that the bar  under s.  479-A  (6)  refers not to the  legal  character  of  the offence  per  se but to the possibility of action  under  s. 479-A  upon  the facts and circumstances of  the  particular case.   If, for instance, material is made available to  the court  after the judgment had been pronounced, rendering  it clearly  beyond  doubt that a person had  committed  perjury during the trial and that material was simply unavailable to the  Court  before or at the time of judgment,  it  is  very difficult  to  see how the court could have acted  under  s. 479-A,  Criminal  Procedure  Code  at  all.   It  cannot  be supposed that the legislature contemplated that such a  case of  perjury,  however, gross should go  unpunished  in  such circumstances.   It  appears to us that the  true  interpre- tation  of  the language of cl. (6) of s. 479-A is  that  it does not operate as a bar to the prosecution for perjury  in a  case of this description.  Take, for instance, the  trial

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of  ’A’  for the murder of ’B’ in the Sessions  Court  where ’C’,  ’D’ and ’E’ gave evidence that they actually  saw  ’A’ committing the murder of ’B’.  Suppose at the conclusion  of the  trial  and after delivery of judgment by  the  Sessions Court ’B’ is found alive and there is incontestable evidence to show that ’A’ was falsely charged for the murder of  ’B’. Is it to be contemplated that in such a case there is no re- medy  available  to the Court to prosecute C, D, and  E  for perjury  under the provisions of s. 476, Criminal  Procedure Code, though action cannot be taken, in the circumstances of the  case, under s. 479-A, Criminal Procedure Code?  In  our opinion,  such a startling consequence was not  contemplated by  Parliament  and  the  bar of cl. (6)  of  s.  479-A  was intended  only to apply to cases of perjury and  fabrication of false evidence in which the trying Magistrate could  have acted under s. 479-A(1).  In other words, the bar of cl. (6) will  not  apply to a, case where perjury  is  detected  not merely  with reference to the evidence adduced at the  trial but  with  reference to the evidence adduced in  some  other distinct  proceeding, not then brought before the  court  or because  there is some other material subsequently  produced after  the conclusion of the trial and delivery of  judgment which  renders the prosecution for perjury essential in  the interests of justice.  Applying the principle in the present case  we  are  of  opinion  that  the  prosecution  of   the petitioners  under  the  provisions  of  s.  476,   Criminal Procedure Code by the Magistrate after the conclusion of the trial is legally valid and is not affected by the bar of cl. (6) of s. 479-A, Criminal Procedure Code. On behalf of the appellants Mr. Thiagarajan referred to  the decision  of this Court in Shabir Hussein Bholu v. State  of Maharashtra(1).  But the Principle of that decision does not afford  any assistance to the appellants in this  case.   It appears that the (1)  [1963] Supp. 1 S.C.R. 501. 378 appellant in that care appeared as a witness in a jury trial for   murder.   Before  the  Court  he,  gave  a   statement contradictory to the ,one he had given before the committing court.   After the conclusion of the trial and  delivery  of judgment  the  Sessions Judge passed a  separate  order  for prosecution of the appellant for intentionally giving  false evidence  under s. 193, Indian Penal Code.  It was  held  by this  Court  that the provisions of s. 479-A  had  not  been complied  with  and.  no cognizance could be  taken  of  the offence.  Two conditions were laid down for the exercise  of the  powers  under  s. 479-A, (i) the  court  must  form  an opinion  that  the  person  has committed  one  of  the  two categories of offences referred to in S. 479-A, and (ii) the Court  must come to the conclusion that for the  eradication of the evils of perjury etc. and in the interests of justice it is expedient that the person be prosecuted. This  opinion and  conclusion must be arrived at the time of the  delivery of  the  judgment or final order in the  trial-,  the  court cannot  later  on  resort to S. 476  and  make  a  complaint against the witnesses.  The provisions of s. 479-A were held applicable to the case and the fact that the trial was  with the  aid of a jury did not preclude the Sessions Judge  from recording   the  findings  required  by  S.  479-A.    While considering whether action should be taken under s. 479-A it was  open to the Sessions Judge to say whether the  evidence tendered  at  the trial was true or false.  It  is  manifest that  the  material  in that case was  produced  before  the Sessions  Court  for  coming  to  the  conclusion  that  the appellant  had  committed  perjury  and  so  the   procedure

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contemplated  In  s. 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 cl. (6)  of  s. 479-A operated and no action could have been taken under  S. 476, Criminal Procedure Code.  The ratio of that decision is not  applicable  to the present case  because  the  material facts are different.  It is necessary to add that in  Shabir Hussein Bholu v. State of Maharashtra(1) this Court observed that if the Judge is unable to come to a conclusion that the statement  made at the trial is false then provisions of  s. 479-A  (1)  would  not be applicable.  At page  512  of  the Report it was observed by this Court as follows:-               "But, for considering the applicability of  s.               479-A(1) what hag to be borne in mind is  that               in  a jury trial it is possible for the  Judge               to  come a conclusion that the statement  made               at  the trial is false.  If he comes  to  that               conclusion   then,  as  rightly  observed   in               Badullah’s case (A.I.R. 1961 All. 397), he has               no  option but to proceed under s.  479-A(1‘),               Cr. P.C. The question then is whether he could               act  under this provision if he is  unable  to               form  an  opinion one way or the other  as  to               whether the evidence tendered at the trial  is               false  or the evidence before  the  committing               Magistrate  is  false.   What  would  be   the               position in such a case?  If the proceed-               [1963] Supp. 1. S.O.R. 501.               379               ings before the committing Magistrate must  be               held to be entirely separate proceedings  then               we agree with the Allahabad High Court that s.               479-A.(1) would not apply." There is divergence of opinion among the various High Courts on  the question of law presented for determination in  this case.  In Jai Bir Singh v. Malkhan Singh and another(1),  it was held by Sahai, J. that the bar of s. 479-A(6) applies to all  cases of perjury, viz., (1) those where the perjury  or the  fabrication of false evidence has been detected by  the court  when the judgment is pronounced, and (2) cases  where the  perjury or fabrication of false evidence does not  come to light till after the judgment has been pronounced and  it was not open to the Court to proceed under s. 476,  Criminal Procedure Code for prosecution in the latter class of cases. The  same  view has been taken by the Punjab High  Court  in Parshotam Lal L. Vir Bhan v. Madan Lal Bishambar Das(2)  and the Rajasthan High Court in Amolak v. State(1).  A  contrary view  has been expressed by the Madras High Court in  C.  P. Kasi Thevar v. Chinniah Konar(4) and In re.  Gnanainuthu(5). For the reasons already expressed we are of opinion that the decision of the Madras Court in C.P. Kasi Thevar v. Chinniah Konar(4)  and In re.  Gnanamuthu(5) represents  the  correct law on the point. For  these  reasons we hold that there is no merit  in  this appeal which is accordingly dismissed. Appeal dismissed. A.I.R. 1958 All. 364.           (2) A.I.R. 1959 Punjab 145. (3) A.I.R. 1961 Rajasthan  220.    (1) A.I.R. 1960 Mad. 77. (5)  A.I.R. 1964 Mad. 446. 380