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Bibekananda Bhowal Vs. Sontosh Mohan Dev and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBibekananda Bhowal
RespondentSontosh Mohan Dev and ors.
Excerpt:
.....of perjury' it was 'expedient' to take action under section 479a. if that be so provision of an appeal against decision in the matter of the trial court or appellate court would have defeated this object. janardhan). in the instance case as we have observed that legislature expressly barred the right of appeal with the object of making in t the decision rendered either under sub-section (1) by the trial court or under sub-sections (4) and (5) by the 'appellate court',we are clearly of the opinion that the present case belongs patently to that class in respect of which it is not open to us to exercise our power of 'superintendence' under article 227. 14. in the result we are constrained to hold that the appeal is not maintainable and has therefore liable to be dismissed which we..........case of an order passed under section 476 or 476a either making a complaint or refusing to make a complaint an appeal may be preferred by the aggrieved person.3. before we explore the legal contour of the objection we may briefly refer to the relevant findings of the trial court on the basis of which he had rejected the appellant's application. it was alleged in the application that exts. bb and hh which were proved by dws. 2 and 4 were manufactured for the purpose of the suit and that the two witnesses t had collusively forged these documents and had used the same as genuine documents intentionally and dishonestly to support defendants' case. the trial court held that though exts. bb and hh were forged, manufactured and spurious documents yet from the facts and circumstances the.....
Judgment:

T.N. Singh, J.

1. On 20-7-73 plaintiff filed a petition under sections 476 and 479 A Cr. P.C. 1898 (for short old Code) in the court of learned District Judge, Cachar, Silchar, before whom Title Suit No. 5/72 instituted by him was pending. By the said petition the plaintiff prayed that after perusing the evidence recorded in the suit of the 1st defendant (DW. 4) Shri S. M. Dev and DW. 2, Shri Indrajit Dutta Choudhury, and after holding a preliminary inquiry, a complaint be made in the appropriate court against them Under Sections 193/465/467/471 IPC. On 23-7-73 1st defendant (DW. 4) filed an objection against this application. Arguments were advanced by both sides on this aspect also on the date fixed for argument in the main suit and the application was rejected by the trial court while disposing of the suit by its judgment and order passed in the case on 31-7-73 by which it decreed in full the plaintiff s suit. The present appeal Under Section 476B of the old Code read with Article 227 of the Constitution was filed in this Court on 30-8-73 against the findings and order recorded in the said judgment in respect of rejection of plaintiffs (herein appellant's) application Under Section 476/479A of the old Code.

2. Before considering the merits of the appeal we have thought it appropriate to deal first with respondents' contention challenging the maintainability of the appeal in this Court. Because, in our opinion, this contention has sufficient force and the respondents' preliminary objection must prevail. Chapter XXXV of the old Code is captioned 'proceedings in case of certain offences affecting the administration of justice' and spans across the group of sections 476 to 487. By Act No. 26 of 1955 sections 479A was inserted in this chapter to deal with 'procedure in certain cases of false evidence', as is indicated by the marginal note. We may read the relevant parts of this new provision:

Sec. 479A(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 interest 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, 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.

(Proviso and Explanation omitted as not relevant).

Sub-sec. (3) - No appeal shall lie from any finding recorded and complaint made under Sub-section (1).

By Sub-section (4) appellate court, in a case where an appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen, has been given the power to direct withdrawal of the complaint where in any case a complaint has been made under Sub-section (1) while such court has also been empowered under Sub-section (5y to make a complaint in the same matter if no complaint has been made by the trial court under Sub-section (1). According to Sub-section (6) proceedings under sections 476 to 479 are barred in cases in which the person concerned may be proceeded Under Section 479A. We may also in this connection note the provisions of Section 476B which contemplates that in the case of an order passed Under Section 476 or 476A either making a complaint or refusing to make a complaint an appeal may be preferred by the aggrieved person.

3. Before we explore the legal contour of the objection we may briefly refer to the relevant findings of the trial court on the basis of which he had rejected the appellant's application. It was alleged in the application that Exts. BB and HH which were proved by DWs. 2 and 4 were manufactured for the purpose of the suit and that the two witnesses t had collusively forged these documents and had used the same as genuine documents intentionally and dishonestly to support defendants' case. The trial court held that though Exts. BB and HH were forged, manufactured and spurious documents yet from the facts and circumstances the possibility that certified copy Ext. HH was supplied by the Silchar Municipal Board on realisation of requisite costs from defendant No. 1 .could not be ruled out. Learned District Judge also observed that the Silchar Municipal Board on being summoned by the court to produce the original of Ext. HH, had caused the production of Ext. BB and further that the 1st defendant should not normally have any hand in the matter of preparation of the certified copy of Ext. HH or in the matter of manufacturing fabricated document, Ext. BB. He further held, 'there is no positive conclusive evidence on record to establish that defendant No. 1 (DW.4) and defendant No. 2 in collusion forged and fabricated the aforesaid two manufactured and false documents for using them as genuine in the suit.' On these findings he held that it was 'not expedient' that they should be prosecuted for the alleged offence.

4. To us it appears clear that we have to answer two questions in dealing with respondents' objection. The first question obviously would be as to whether appellant's application can be considered to be covered by Section 476 so as to give the appellant a right of appeal Under Section 476B. In case it is not so covered and Section 479A is held applicable to the case, whether in view of the provisions of Sub-section (3) thereof the appellant has a right of appeal against the decision rendered by the trial court on his application. In other words, the second question is squarely related to the interpretation of the said Sub-section (3).

5. In so far as the first question is concerned we do not feel any difficulty in dealing therewith as the decision of their Lordships of the Supreme Court in Shabir Hussain's case : AIR1963SC816 has set the controversy at rest resolving the difference in judicial opinion on the interpretation of the provisions of Sections 476 and 479A. Their Lordships held that the provisions of Sections 476 to 479 are totally excluded where an offence is one specified in Section 479A(l). It was also held that Section 476 was a general provision while Section 479A dealt with a special category of cases. The distinctive feature of the later category of cases is that only the court before which the person against whom application for making complaint is made has appeared as a witness and which has disposed of the case can alone make the complaint. In so holding the court took into account the opening words of Sub-section (1) of Section 479A and also the provisions of Sub-section (6) thereof which created an express bar against taking proceeding Under Sections 476 to 479 'for the prosecution of a person for giving false or fabricated evidence if in respect of such a person proceeding may be taken under this section.' In the instant case the application in question was admittedly filed before the trial court against persons who appeared as witnesses before it and it was the same court which had disposed of the suit and therefore though the application was labelled as Under Sections 476 and 479 A it could only be considered as an application Under Section 479A. Accordingly, the impugned order not being an order passed on an application Under Section 476 no appeal against the said order could be filed Under Section 476B.

6. We have, therefore, to answer the second question on which, as is submitted at the Bar, there is no direct authority. Mr. N. M. Lahiri, learned Counsel for the respondents, however, drew our attention to a decision reported in 1966(2) Cri LJ 967 (2) (Him Pra) Mangat Ram v. State. There is an observation hi the decision to the effect that as the provisions of sections 476 to 479 were not applicable to the petitioner's case and as Section 479 A was exclusively applicable to the case no appeal lay against the impugned order. A decision of the Orissa High Court reported in 1965 (2) Cri LJ 690. Taramani Dasi v. Gopal Charan, has also been brought to our notice by learned Counsel. In that case it appears that the question of maintainability of the appeal was raised on the ground that the facts came within the scope of Section 479A but it does not seem to have been answered. In that case application was filed before the trial court for taking action Under Section 193 IPC against the complainant (PW.1) which was rejected on 7-8-83 after the judgment in the case was pronounced on 5-8-83 by which the accused persons were acquitted. The judicial proceedings in which the application was filed related to a complaint made Under Section 379/109 IPC. The appellate court, on appeal Under Section 476B, directed a complaint to be filed Under Section 476 which was held by the Orissa High Court to be illegal inasmuch as there was no finding by the trial court as contemplated Under Section 479 A and on account of that the appellate court had no jurisdiction to pass the impugned order Under Section 476B.

7. We have to divine the legislative object of enacting in 1955 the new provision of Section 479A to place a reasonable construction on Sub-section (3) thereof. For this, in our opinion, there is sufficient intrinsic evidence manifested particularly by Sub-sections (4), (5) and (6) thereof to indicate that the said provision was meant to be a self-contained Code. If that be so we have to construe Sub-section (3) in a manner as will fulfil this object and desist from taking a view which may produce a contrary result. By Sub-section (6) of Section 479A, in our opinion, the provisions of the whole group of sections 476 to 479 were made inapplicable and as a result thereof the provision of appeal contained in Section 476B also became inapplicable to a proceeding Under Section 479A. It is for this reason, in our opinion, a special provision debarring appeal in a proceeding Under Section 479 A was explicitly made in its Sub-section (3), The ambiguity introduced by use of the word 'and' which joins the two expressions 'finding recorded' and 'complaint made' has to be resolved therefore in a manner so as to effectuate this legislative intent. We propose, therefore, to read the word 'and' in a disjunctive sense. There is ample and high authority for the proposition that the object, extent and setting of a particular provision projecting legislative intent thereof may force the court to read 'or' for 'and' in appropriate cases. (See : [1958]34ITR368(SC) , Mazagaon Dock; : 1969CriLJ19 . Ishwar Singh; : [1965]1SCR220 , Dy. Custodian; : [1964]3SCR297 C. Ganeswar Rao). According to us the expression 'finding recorded' indicates a positive as well as a negative finding contemplated under Sub-section (1). We say so because whether or not the decision is taken to make a complaint under Sub-section (1) it is incumbent on the court to 'record a finding' in a proceeding commenced Under Section 479A. There cannot be any doubt that only when there is positive finding supported by 'reasons therefor' that any person appearing before the court as witness has intentionally given false evidence at any stage of the judicial proceeding or has intentionally fabricated the evidence for the purpose of being used at any stage of the proceeding, a complaint may be made. But, when a decision is made by the court not to make a complaint it will still be necessary to 'record a finding' in a similar manner which would, of course, be of a negative character.

8. What appears to us to be the soul of the provision is that action under Section 479A can be taken when the appropriate court deems it 'expedient' to take such action and when it is necessary to act 'in the interest of justice for the eradication of the evil of perjury'. For this view we find strong support in the authority of Mohammad Ibrahim's case : 1976CriLJ1385 . Their Lordships held in that case that it was not only necessary that the court must form the opinion that the witness had intentionally given false evidence but it was further necessary that the court must come to the conclusion that for the eradication of the evil of perjury and in the interest of justice it was expedient that the witness should be prosecuted. It was held by their Lordships in Kuppa Gouda's case : 1966CriLJ1503 and Santokh Singh's case : 1973CriLJ1176 that the scheme of Section 479A Cr. P.C. is to enact a special procedure for more expeditious and more effective manner of dealing certain cases of perjury and fabrication of false evidence of witnesses in the course of judicial proceedings. It also appears clear to us that the power to take action Under Section 479A was vested by the legislature in the trial court itself which had the opportunity to deal with the evidence in connection wherewith action-could be taken by it under Sub-section (1) thereof or when the same is considered in appeal, by the appellate court under Sub-section (6). This was because only the Court dealing with such evidence could be the best judge of the requirement as to whether 'in the interest of justice for the eradication of the evil of perjury' it was 'expedient' to take action Under Section 479A. If that be so provision of an appeal against decision in the matter of the trial court or appellate court would have defeated this object. In Parshottam v. Madanlal , a Division Bench of the said court in construing Section 479A took the view that the procedure thereof was meant to be fair to both sides, A criminal was to be brought to book promptly but he was not to the harassed after long delays. This decision was cited with approval by their Lordships of the Supreme Court in Shabir Hussain's case (1963 (1) Cri LJ 803) (supra). However, though their Lordships did not explicitly approve this particular dictum we have no doubt that the view expressed by the Punjab High Court is correct and that it is a reasonable view with which we express our respectful agreement. For this view we find support from the constitutional mandate of Article 21 on which is founded the principle, according to us', that when two views of a penal or punitive provision are possible the procedural law in question should be so construed as to exude reasonableness in its application.

9. Because, Sub-sections (4) and (5) of Section 479A give power to appellate courts also for acting under Sub-section (1) thereof both negatively and positively, long delays may result before a decision is rendered on the question, whether or not action can be, or should be, taken in any case against any person -in terms of Section 479A. Such a procedure, in our opinion, would not be reasonable procedure and would be violative of Article 21. That apart, to be fair to both sides, instead of totally negating right of 'appeal' in such cases, by Sub-sections (4) and (5) merely forum of the relief was changed as the power to interfere with the decision of the trial court was vested thereby in the 'appellate court' dealing with the main matter or the parent lis. We would, therefore, construe Sub-section (3) in the light of [sub-sections (4), (5) and (6) thereof and hold that by Sub-section (3) the legislature meant to attach finality to any decision taken Under Section 479A either by the trial court in terms of Sub-section (1) or by the 'appellate court' under Sub-sections (4) and (5), The main object of Sub-section (3), according to us, was to prevent multiplicity of proceedings and conflict of decisions and jurisdictions occasioning long delays and undue harassment to the person concerned to answer the requirement of 'fair procedure' as the provision of Section 479A impinged directly on the right to personal liberty and being a post-constitutional provision it took care to ensure compliance with the constitutional mandate of Article 21, The golden rule of interpretation projected in the maxim ex visceribus actus is that legislative intent of any particular provision has to be gathered from a conjoint reading of the relevant provisions and not by reading merely the particular provision in isolation. Right of 'appeal' against a decision rendered Under Section 479A (1) was, in our opinion, expressly excluded by Sub-section (3) thereof and for this reason the provision of Section 476B was made inapplicable explicitly by Sub-section (6) of Section 479A and impliedly by Sub-sections (4) and (5) thereof. It cannot be disputed that right of 'appeal' is a creature of statute and, therefore, according to us, in one class of cases the legislature gave this right, vide Section 476B, while in another class of cases this right was excluded expressly, vide Section 479A (3) Cr. P.C. It is difficult to dispute the position that in 1955 legislature by inserting Section 479A introduced self-contained provisions in respect of the matter dealt thereunder. We, therefore, consider it to be our duty to effectuate the legislative mandate by placing a harmonious construction on the different parts of the provision. We are firmly of the opinion that any view other than the one expressed herein would tend to make otiose the provisions of its Sub-sections (4) and (5) and would also violate the mandate of Article 21.

10. For the foregoing reasons we hold that the present appeal is incompetent. Because, the impugned findings and the order which was passed oh that basis by the court below are made non-appealable by Sub-section (3) of Section 479A. For another reason we hold the appeal also to be infructuous. If is because, an appeal was preferred in this Court impugning separately the judgment and decree passed by the court below in the main matter involved in Title Suit No. 5/72. This Court has disposed of the same by its judgment and order passed on 24-8-82 in F, A. No. 458/73 without deciding to take any action under Sub-section (5) though it was competent to do so. This Court in its said judgment referred to Exts. HH and BB and merely observed that it would not place any reliance thereon. Although a reference to the pendency of the present appeal was made this Court having considered it 'proper' not to exercise its powers under the said Sub-section (5), we would be exceeding our jurisdiction in the present appeal to exercise the same power which has been expressly reserved for a different forum which must form its own opinion if it was 'expedient' to take action Under Section 479A (1), 'in the interest of justice', against DWs. 2 and 4, whose evidence it had the occasion to consider in deciding the concerned appeal.

11. However, we have to be fair to Mr. S. K. Sen, learned Counsel for the appellant who placed implicit reliance on : 1964CriLJ555 . (Babulal v. State of U.P.) to plead that the present appeal was maintainable. We find it extremely difficult to accept his submission because, though Shabir Hussain (1963 (1) Cri LJ 803) (supra) was referred and the mistake 'crept in by oversight' (use of words 'and Section 471' along with sections 193 to 195) was pointed out, authority of, the decision (in Shabir Hussain) was not otherwise impaired in any other manner. In Babulal, Sub-section (6) of Section 479A was not construed to mean that action could be taken Under Section 476 even if it was not, though it could be, taken Under Section 479A. Their Lordships, indeed, undeniably held that resort may be had only to Section 476 Cr. P.C. in case of an offence Under Section 471 IPC but on facts it is clear that in that case trial court had already disposed of the main case without, however, disposing of the application for taking action Under Section 479A Cr. P.C. and therefore it had passed an order Under Section 476 lodging complaint for offences Under Sections 463 and 471 IPC, which was upheld by their Lordships. It is true that the offence Under Section 471 IPC was held by their Lordships to be such as 'can never be covered by Sub-section (1) of Section 479' but it was also held that the same covered exclusively cases of offences falling under sections 193 (1st part), 194 and 195 IPC. Babulal, therefore, did not, in our opinion, indent the authority of Shabir Hussain that sections 476 and 479 A were mutually exclusive and operated in their respective fields and thus because Sub-section (6) of Section 479A excluded the operation of Section 476 in cases where action could be taken Under Section 479A(1), resort to the provisions of Section 476 was not permissible. We say so for the particular reason that where as condition precedent for the exercise of powers Under Section 476 was the single requirement of 'in the interest of justice', in the case of Section 479 A(l) two conditions are signified by the expressions 'for the eradication of the evils of perjury and fabrication of false evidence and in the interest of justice'. Therefore, Sub-section (6) of Section 479A must be allowed to operate in the context of the additional requirement of 'for the eradication of the evils of perjury and fabrication of false evidence' which is not -to be found in Section 476; it must also operate in respect of offences Under Sections 193 (1st part), 194 and 195 IPC. Only when the case in the application is made in respect of an offence Under Section 471 IPC and proceeding therefore can be taken only Under Section 476 Cr. P.C. that Section 479 A (6) becomes inoperative. It is necessary, in our opinion, to accord primacy to Sub-section (6) because we must remember that the provisions of Section 479A was introduced by an amendment and legislature therefore intended deliberately to curtail the scope of operation of Section 476 so that certain classes of cases could be dealt with in a different manner under Section 479 A.

12. The decision in Babulal (1963 (1) Cri LJ 555) in our opinion, does not, therefore, help Mr. Sen. In the instant case, the court below having decided, in disposing of the application (unlike in Babulal), that it was not 'expedient', on the findings recorded by it, to take any action against DWs. 2 and 4 for their prosecution for the alleged offences, among others, Under Section 193 IPC, we do not understand how in this case we can say that the bars envisaged under Sub-sections (3) and (6) of Section 479A can be avoided. As the application did not make a case exclusively Under Section 471 IPC, the provisions of Section 476B became inapplicable.

13. There, however, remains another point to be decided because Mr. Sen's further submission is that relief can be given to the appellant under Article 227 of the Constitution. However, in view of the settled law we find ourselves unable to accept this contention. Because, it was held in : AIR1975SC1297 (Babhutmal v. Laxmibai) that (at pp. 1301-2):

The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts.

This view had a precursor in the Constitution Bench decision in Waryam Singh v. Amarnath : [1954]1SCR565 , wherein limited scope of powers of this Court under Article 227 indicated. Both these decisions were considered in a later decision of the Court reported in : [1978]1SCR797 , India Pipe Fitting Co. v. Fakruddin; See also : AIR1983SC535 (Labhkuwar v. Janardhan). In the instance case as we have observed that legislature expressly barred the right of appeal with the object of making in t the decision rendered either under Sub-section (1) by the trial court or under Sub-sections (4) and (5) by the 'appellate court', we are clearly of the opinion that the present case belongs patently to that class in respect of which it is not open to us to exercise our power of 'superintendence' under Article 227.

14. In the result we are constrained to hold that the appeal is not maintainable and has therefore liable to be dismissed which we accordingly do.

T.C. Das, J.

15. I agree.


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