1. These petitions arise out of the same matter and they will be disposed of by this common order. In P. R. C. No. 2/67 on the file of the Munsif Magistrate, Srikakulam, the petitioners were examined as witnesses to speak to the murder of one Akkayya. Previous to this proceeding in the course of the investigation, the statements of both these witnesses were recorded by the Magistrate under S. 164, Cr. P.C. When they gave evidence before the learned Munsif Magistrate, Srikakulam, contrary to what they had stated in their statements under S. 164, he made an observation in the final order passed by him that they had intentionally given false evidence either before him or before the Judicial First Class Magistrate, Narasannapet, who had recorded the statements of these witnesses under S. 164, Cr. P.C. and for the eradication of the evil of perjury, and in the interests of justice it was expedient that both these witnesses would be prosecuted for perjury. Therefore an explanation was called for by the learned Magistrate from these witnesses. Both of them stated in their replies that owing to the pressure and influence of the police they were obliged to subscribe to the prosecution story at the time when their statements were recorded by the Magistrate at Narasannapet but the real position was that they did not witness the occurrence. In the course of the evidence which was recorded by the learned Magistrate, Srikakulam, both these witnesses had stated categorically that they were kept in the police station for three days and thereafter they were produced before the Magistrate at Narasannapet. This supports the explanation given by them with respect to their statements recorded under S. 164, Cr. P.C. that they were given under the pressure of the police. The learned Counsel for the petitioners contended before me that it is for the Magistrate to give a finding before he proceeds to lodge a complaint as to which of the two contradictory statements given by the witness is false. He refers me to the wording of S. 479-A the relevant position of which is in the following terms:
' .......make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which is in the opinion of the Court, is false'
In my view, the language of the section is very plain, and it could only mean that the Court giving a complaint has to give a finding as to which of the two contradictory statements is false. Mr. Seetharama Reddy appearing for the Public Prosecutor has contended before me that it is not necessary for the Court giving the complaint to say which of the two contradictory statements is false.
In support of his argument, he has referred to two cases one of which is public prosecutor v. Nagalinga, : AIR1959AP250 . But that was a case in which the learned Judge was dealing with a complaint which was made under S. 476, Cr. P. C, the language of which is different from that of S. 479A, Cr. P. C. In my view this case would not help the prosecution . The other case referred to is Shabir Hussain v. State of Maharashtra, : AIR1963SC816 . The question that fell for consideration of their Lordships in that case was whether the Chief Presidency Magistrate, Bombay could not take cognizance of a complaint against the appellant for an offence under S. 193, I. P. C. because the Additional Sessions Judge, Bombay, who had a filed a complaint, had failed to follow the procedure laid down in Section 479A., Cr. P.C. The Bombay High Court itself had observed when an application for revision was filed before it that the provision of S. 479-A Cr. P.C., were not compiled with but it was still open to the Chief Presidency Magistrate to take action on the complaint under Ss. 476 and 479, Cr. P.C. The Additional Sessions Judge in this case had filed to record in his judgment a finding of the kind required under S. 479-A. Cr. P. C.
Apart from this, another argument advanced before their Lordships of the Supreme Court was that the complaint made by the Additional Sessions Judge mentioned only that contradictory statements were made, before him and the committing Magistrate, and in such a situation, a complaint could be lodged only under Section 476, Cr. P.C.
2. Mr. Seetharama Reddy also lays stress on the observation of the Supreme Court that even when the Sessions Judge is unable to say which of the two contradictory statements is false or even where he is of the opinion that the statement before the committing Magistrate is false, it is for him alone to act under S. 479-A (1), and submits that in the light of the observations of the Supreme Court, It is not open to this Court to construe the wording of the section in any other manner. With due respect to the observations of their Lordships of the Supreme Court, my own view is that the words used in the section to which a reference has been made earlier, were not expressly brought to the notice of the Supreme Court not it appears that the argument addressed before it was the same as has been addressed before me. The counsel for the respondent had only contended before their Lordships of the Supreme Court that in the absence of any finding as to which of the two contradictory statements is false, the case could only come under S. 476, Cr. P.C. In these circumstances, I do not think that it would be wrong for me to hold that the complaint of the Court, if it is submitted under S.479-A must necessarily mention which of the two contradictory statements is false. These words have been used by the Legislature obviously to guard the interests of the accused so that he may not be prejudiced in his defence. It may be noted that these words were not used either in S. 476 or S. 479 Cr. P.C. and when they are used in S. 479-A, Cr. P.C. it only means that the Legislature has introduced those words with a purpose.
3. The next contention of the learned counsel for the petitioner is that his statement recorded under S. 164, Cr. P.C. is not evidence recorded in a judicial proceeding. Section 164, Cr. P.C. falls under Chapter XIV of the Code of Criminal Procedure which relates to the powers of the Police to investigate the cases reported to them but in : AIR1959AP250 to which a reference has been made earlier, it was observed by the learned Judge that an investigation under Chapter XIV of the Code of Criminal Procedure is a state of a judicial proceeding and a person who makes on oath statements which he knew to be false before a Magistrate conducting the investigation, gives false evidence and commits an offence under S. 193, I. P. C. This observation was made in the light of the decision in Tevan v. Emperor, (1906) ILR 29 Mad 89 ; (3 Cri LJ 370). Any way, this is a question which does not require any further consideration because I am inclined to allow these petitions on the former point that the Magistrate had failed to give a finding as to which of the two contradictory statements is false.
4. In the result, these revision cases are allowed and the proceedings initiated against the petitioners will be dropped.