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Nimmakanyala Audi Narrayanammam Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 137 of 1968
Judge
Reported inAIR1970AP119; 1970CriLJ443
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 476, 476-B and 537; ;Evidence Act, 1872 - Sections 114; Code of Civil Procedure (CPC), 1908
AppellantNimmakanyala Audi Narrayanammam
RespondentState of Andhra Pradesh
Appellant AdvocateC. Padmanabha Reddy, Adv.
Respondent AdvocatePublic Prosecutor
Excerpt:
.....any proceeding before, it, to be satisfied objectively in each case that it was expedient in the interests of justice that an enquiry should be held into the offence. state, air1962all251 ,on which strong reliance has been placed ky the learned public prosecutor, in a way supports his plea. the code lays down so as to leave no room for any doubt that the court should record a finding that it is expedient in the interests of justice that an inquiry should be made and therefore courts will be well advised always to make a record to that effect if that is their opinion because most regrettable delay and waste of time sometimes arise by putting the superior courts to the task of discovering whether they mean something which they have not written. sohanraj, 1963 (1) crl lj 713 (raj), the..........to give a finding a s contemplated by section 476 criminal p. c. about the expediency in the interests of justice to inquire into the offence under section 211 i. p. c. alleged to have been committed by his client in the course of trial in s. c. no. 5 of 1965, warrants the quashing of the complaint.3. the learned public prosecutor contended contra and urged that section 476 criminal p. c. does not contemplate the court to give any such specific finding in every case.4. the point that arises for determination is whether on the facts and in the circumstances, the assistant sessions judge has or has not preferred the complaint according to law as contemplated by the provisions of section 476 criminal p. c.?5. for a proper appeciation of the point at issue, it is profitable to consider.....
Judgment:

1. The complaint filed on February 2, 1965 by the appellant before the Police against Gotur Palreddi and eight others for the offences under Sections 457, 380, 395 and 395 read with 397 I. P. C. was referred as false. Thereupon, a private complaint preferred by her on 1-7-65 before the J.S.C..M., Cuddapah was, after committal tried by the Assistant Sessions judge, Cuddapah in S. C. 5/65 who, by his judgment dated October 28, 1967 acquitted the accused of all the charges leveled against them holding that there was neither truth nor substance in the complaint. On 19-1-1968, the Assistant Sessions Judge filed a complaint before the judicial First Class Magistrate, Cuddapah against the appellant alleging that she had maliciously instituted criminal proceedings against gotur Palreddi and eight others on the false charge of commission of the offence of dacotiy with intent to cause injury to them, knowing that there was no just or lawful ground for such charge or proceeding in his Court, and has thereby committed an offence punishable under the 2nd part of Section 211 I. P. C. hence this appeal.

2. The failure on the part of the Assistant Sessions Judge, contended by Sri k Padmanabha Reddy for the Appellant, to give a finding a s contemplated by Section 476 Criminal P. C. about the expediency in the interests of justice to inquire into the offence under Section 211 I. P. C. alleged to have been committed by his client in the course of trial in S. C. No. 5 of 1965, warrants the quashing of the complaint.

3. The learned Public Prosecutor contended contra and urged that Section 476 Criminal P. C. does not contemplate the Court to give any such specific finding in every case.

4. The point that arises for determination is whether on the facts and in the circumstances, the Assistant Sessions judge has or has not preferred the complaint according to law as contemplated by the provisions of Section 476 Criminal P. C.?

5. For a proper appeciation of the point at issue, it is profitable to consider Sec. 476 C. Criminal P. C. which reads thus:

'When any.. 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 Section 195 sub-section (1), clause (a) or clause (b) which appears to have been committed in or relation to a proceeding in that Court, such Court may after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a magistrate of the First Class having jurisdiction....'

Section 476 Criminal P. C. prescribes an exhaustive procedure relating to the preferring of complaints by Courts, civil, criminal or revenue, in respect of offences mentioned in clauses (b) and (c) of sub-sec (1) to Section 195. This section enjoins the Court, before which the offence under Section 211, I. P. C. appears to have been committed in or in relation to any proceeding before, it, to be satisfied objectively in each case that it was expedient in the interests of justice that an enquiry should be held into the offence. Thereafter the Court may have such preliminary enquiry as it thinks necessary and record a finding to the effect that it is expedient in the interests of justice or that it is a fit case to prosecute the person or persons who committed the offence and then make a complaint in writing and forward the same to the First Class Magistrate for disposal according to law. The words 'such Court may after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect' must necessarily be construed that it is incumbent on the Court to record a finding to the effect that it is expedient in the interest of justice to enquire into the offence referred to in Section 195 (1) clause (b) or (c) although the preliminary enquriy may or may not be held in the discretion of the Court, depending upon the circumstances of each case. The action of the Court under Section 476 is appealble by the aggrieved party under Section 476-B Criminal P. C. to the Court having jurisdiction to receive appeals against the decisions of that Court.

In my considered opinion, the opinion contemplated under Section 476 to be formed by the Court before which the offence appears to have been committed, that it was expedient in the interests of justice to prosecute such person or persons, must be an objective but not a subjective one. The test that has to be laid must be that of a prudent reasonable person and it should be speaking supported by a valid grounds. Otherwise it would be often very difficult and sometimes even impossible for the appellate Court under Section 476-B to arrive at a conclusion as to whether the court has rightly applied its mind and passed the order under Section 476 Criminal P. C. or not. The opinion contemplated under Section 476 must be expressed in a speaking order. whether it be either with or without such preliminary enquiry as the Court thinks it necessary it has to record a finding to the effect that on a consideration of the facts and circumstances, it was of an honest and bonafide opinion that it was a fit case for prosectutionor that it was expedient in the interests of justice to enquire into the matter. Without such finding it would be very difficult to probe into the mind of the Court that passed the order under Section 476 Criminal P. C. or the complaint lodged by the Court before the First Class Magistrate as the appellate Court while considering under Sec. 476-B Criminal P. C. is entitled to agree or disagree with such an action of the trial Court and make the complaint in cases where the subordinate Court refused to make a complaint, under section 476-B or direct the withdrawal of the complaint in appropriate cases if it finds that the dame is not warranted in the interests of justice.

6. That apart, the provisions of Section 476-B Criminal P. C. contemplate a different proceedings from that of the oringinal proceedings before the sub-ordinate Court where the offence appears to have been committed by the party. After the closure of the enquiry relating to the main offence which was decided in the Sessions Case, the further proceeding contemplated under Section 476 Criminal P. C. to prosecute the person who had filed a false complaint, which in the opinion of the Court it is expedient in the interests of justice to be enquired into is a different proceeding. No doubt it is true, as pointed out by the learned k Public Prosecutor, in some cases it happens that the very same Magistrate or the Judge who tried the original case would have been the Presiding Officer who had to consider the applicability of the provisions of Section 476 Criminal P. C. and file a complaint in appropriate cases. Even then it is just and proper that that Court whether presided by the same presiding Officer or by a different Officer, should proceed according to the provisions of Section 476 and issue a show cause notice as to why the person sought to be prosecuted should not be prosecuted and after affording an opportunity, record a finding to the effect that it was expedient in the interests of justice to enquire into the offence committed by him and file a complaint before the first Class Magistrate.

The proceedings under Section 476 Criminal P. C. being judicial and criminal in nature, the interpretation that should be placed in construing the section should be just, fair, proper and equitable and must be in accordance with the principles of natural justice. By adopting such interpretation and procedure, the aggrieved party would be afforded with an adequate opportunity to show and satisfy the Court that it was not in the interests of justice, to launch the prosecution and thereby avoid further proceeding. That apart, the appellate Court also would be in a position to appreciate the reasons assigned in each case and would have the advantage of coming to its own conclusion without any difficulty about the justification or otherwise of launching the prosecution in a particular case. When once the prosecution had been launched, the accused will not be having an opportunity thereafter to raise the question of expediency ink the interests of justice to launch the very prosecution itself. The case thereafter will have to be gone into on the merits.

7. It appears there is no direct case of our High Court on this question. I shall presently consider the several decisions of various high Courts cited before me by both the counsel in support of their respective contentions.

8. the decision of the Allahabad High Court in Lal Behari v. State, : AIR1962All251 , on which strong reliance has been placed ky the learned Public Prosecutor, in a way supports his plea. the learned Public Prosecutor relies upon the following passage of Nigam J., who spoke for the Bench, at page 255:

'. . . . . the jurisdiction of the Court to prefer a complaint does not in my opinion depend upon the recording of the opinion though it is consequent on the formation of such an opinion. In the circumstances, I am of the view that omission to record such an opinion is only an irregularity and does not affect the legality of the complaint..........Normally the Act that a complaint is preferred is itself evidence of the fact that such an opinion had been formed and in proper cases a presumption may even be raised under Section 114 of the Indian Evidence Act.'

No doubt, the aforesaid passage supports the contention of the learned Public Prosecutor. It is pertinent to notice two sentences prior to the aforesaid passage, which read thus;

'. . . .I am of opinion that the formation of an opinion that the prosecution is expedient in the interests of justice is a condition precedent to the preference of the complaint. The law also requires that such a finding should be recorded. . . . . .'

The aforesaid passage in paragraph 20 in the judgment of Nigam J., at page 255, if read a s a whole, would also support the plea of the appellant herein that a finding to the effect that the prosecution is expedient in the interests of justice should be recorded.

9. In Liaqat Husain v. Vinay Prakash, AIR 1946 All 156, a Division bench of the same High court has ruled that a finding by the Court that the prsecution is expedient in the interests of justice must be given before filing the complaint. In Chhajoo v. Radhay Shyam, : AIR1968All296 (FB), a Full Bench of the same High Court, while considering the scope and interpretation of Section 476 Criminal P. C., observed at page 302 thus:

'A analysis of Section 476 of the Code of Criminal Procedure, as already pointed out, would show that it contemplates three stages is when a finding has to be given by the Court concerned to the effect that it is expedient in the interests of justice to file a complaint; the second is the making of the complaint in writing signed by the presiding officer or by the officer appointed by the High Court and the third stage is that of forwarding the same to a Magistrate of the First Class.'

10. The Madras High Court is consistently of the view that the provision in Section 476 Criminal P. C. to record a finding that it is expedient in the interests of justice to enquire into the offence, is not merely directory but is mandatory and it is a condition precedent for preferring a complaint before the Magistrate in Chaduvula Munuswami Naidu v. Emperor, Air 1928 Mad 783, Devados, J. ruled thus at page 783:

'Before a complaint under Section 476 is made, it is necessary that a Court which thinks that an offence mentioned in sec. 195, sub-section (1), clause (b) or clause (c) has been committed should record a finding to that effect and after recording such finding may make a complaint. . . . The provision is not merely directory, but it is mandatory, for an appeal lies against the order of the Court and under Section 476-B an appellate Court can either withdraw a complaint or direct a complaint to be made. That being so, it is necessary for the appellate Court to see what reasons the lower Court had for deciding to make a complaint under Section 476. It is not every case of perjury that should form the subject of an inquiry; but it is only when the interests of justice do require that a complaint should be made then and then only a complaint should be made. Though the Courts should be anxious to put down perjury as much as possible, it is not in the interests of justice that every false statement made by a witness in Court or in an affidavit filed in Court should be subject of a charge for perjury.'

In Ramyya v. Emperor, Air 1933 Mad 67 (1), a Division Bench of the Madras High Court ruled thus:

'The Code lays down so as to leave no room for any doubt that the Court should record a finding that it is expedient in the interests of justice that an inquiry should be made and therefore Courts will be well advised always to make a record to that effect if that is their opinion because most regrettable delay and waste of time sometimes arise by putting the superior Courts to the task of discovering whether they mean something which they have not written.'

In re, Pakhiriswami Pillai, AIR 1948 Mad 297, yahya ALI, J., ordered the withdrawal of the complaint as there was no finding by the Magistrate that the prosecution was expedient in the interests of justice as the same is an incurable defect.

11. In Kailashpati Mishra v. Nand Lal Ahir, : AIR1952Pat70 , Ahmed, J., while considering the scope of Section 476 Criminal P. c. at page 71, observed thus:

'The section, therefore, lays down two conditions for its operation. Firstly, a preliminary inquiry, if necessary, shall be held and secondly, that the court shall record a finding to the effect stated in the section.'

12. In paramananda Mohapatra v. The State, : AIR1968Ori144 , the Orissa High Court has taken the same view. In Brinmohanlal v. Sohanraj, 1963 (1) Crl LJ 713 (Raj), the Rajasthan High Court held that the requirement of recording a finding that it is expedient in the interests of justice that a complaint be filed under Section 476, is mandatory and any failure to comply with that requirement deserves the order to be set aside.

13. The decision of Jagamohan Reddy, J. (as he then was in Sundarami Reddi v. Venkatasubba Naidu, 1958-2 Andh WR 480, does not render any assistance to the prosecution case in the present case. What the learned Judge had to consider in that case was whether or not preliminary enquriry was compulsory in each case. The learned Judge, at page 485, observed thus;

'What the Court has, therefore, to decide under this section is whether an offence of the kind contemplated under the section appears to have been committed and in the interests of justice it should further enquire into it. It is not always obligatory on the part of the Court to make a preliminary enquiry; but that would depend upon the facts and circumstances of each case.'

Negativing the contention of the Counsel for the accused that the Sessions Judge failed to record his opinion that it was expedient in the interests of justice that an enquiry should be made, the learned Judge observed at page 484 thus:

'No doubt the Sessions Judge had not used the actual words of the section, namely that it is expedient in the interests of justice that an enquriy should be made, but in may view there is no charm in this incantation where the Judge has used language which leaves no doubt that the prosecution was in the interests of justice. It is not a question of a mere inference alone.'

14. The decisions of the Mysore High Court in Narajappa v. Chikkaramiah, AIR 1959 Mys 117 and of the Patna High Court in Rajeswar Singh v. Ram Bahadur Singh 1965 (2) Crl LJ 837 (Pat), relied upon by the learned Public Prosecutor, do not advance his plea, as those cases are the authorities for the view expressed by this Court in 1958-2 Andh WR 480, that the preliminary enquiry was not compulsory, but the Court, in its desecration, may dispense with the holing of an enquiry if it thinks that it was unnecessary on a consideration of the facts and circumstances of any given case.

15. The decisions of the Madras High Court in AIR 192f8 Mad 783, AIR 1933 Mad 67 (1) and AIR 1948 Mad 297, being before June, 1954, are binding on me (see Subbarayudu v. State of Andhra, : AIR1955AP87 ). That apart, the language of Section 476 Criminal P. C. fully supports the view of the Madras High Court that it is incumbent on the Court to form an opinion that it is expedient in the interests of justice to enquire into the offence and record a finding to that effect, and that the failure to conform with such a requirements warrants the quashing of the complaint as the defect is not a one which can be cured under Section 537 Criminal P. C. I am in entire agreement with the view expressed by Nigam, J., who spoke for a Division Bench of the Allahabad High Court in : AIR1962All251 , that the jurisdiction of the Court to prefer a complaint does not depend upon the recording of the opinion and that the omission to record such an opinion is only an irregularity and does not affect the legality of the complaint.

16. From the aforesaid discussion, the following principles can safely be deduced:

(1) It is not every case of perjury irrespective of facts and circumstances that should from the subject of an enquiry but it is only in such cases where the Courts are of hones belief and opinion, on an objective consideration of the facts and circumstances that the interests of justice require the laying of a complaint.

(2) It is not mandatory but discretionary for the Court, depending upon the facts and circumstances of each case, either to conduct any preliminary enquriy or to dispense with the same, to from an opinion that it is in the interests of justice to prosecute the person or persons that committed perjury.

(3) The proceedings under Section 476 Criminal P. C. appealable under Sec. 476-B is an independent and altogether a different proceeding from that of the original Sessions case where the witnesses have committed the offence of perjury.

(4) The proceeding under Section 476 Criminal P. C. being penal in nature, it is not only desirable and reasonable, but just and proper and in accordance with the principles of natural justice to afford a reasonable opportunity by issuing a show cause notice to the accused party to establish by adducing evidence oral and documentary that it was not expedient in the interests of justice to prosecute him.

(5) On a plain reading of the provisions of Section 476, and in particular the words 'such Court May. . . . .record a dinning to that effect,' there is no room for doubt that the Court should record a finding that it is expedient in the interests of justice that an enquiry should be made, as a condition precedent for filing a complaint.

(6) The provision in Section 476 relating to the recording of a finding is not merely directory but is mandatory, for, an appeal lies against the order of the Court; and under Section 476-B, that the appellate Court is competent either to with draw the complaint already made or direct the complaint to be a made, depending on the facts and circumstances of each case.

(7) The opinion or the satisfaction contemplated under Section 476 is an objective and not a subjective one and should be reflected in the finding recorded or the order passed by the Court and such an order must be a speaking one supported by valid and justifiable grounds to enable the appellate Court under Section 476-B to know the material on which the court had come to such a conclusion or opinion that it was expedient in the interests of justice to launch a prosecution.

(8) Though the Court, while recording the finding contemplated under Section 476 Criminal P. C., need not strictly adhere to the very language, viz., 'that it is expedient in the interests of justice that an enquiry should be made,' used in the section, it must use such language that it leaves no doubt that it was a fit and proper case and it was in the interests of justice of launch a prosecution against the person or persons that committed perjury.

(9) Even where the Presiding Officer, before whom the offence under Section 195 (1) (b) or (c) has been committed, himself prefers the complaint and forwards the same to the Magistrate, no presumption under Section 114 of the Evidence Act to the effect that he had formed an honest opinion, even though no such finding has been recorded, that it is expedient in the interests of justice to enquire into the offence, can be made as, on a plain and grammatical reading of the language and scheme of Section 476, it is incumbent on the Court to give a specific finding before making a complaint.

(10) The omission or failure to record a finding to the effect that it s expedient in the interest of justice to enquire into the offence, is not a mere irregularity curable under Section 537 Criminal P. C. and it goes to the root of the matter as the Court will have no jurisdiction to file a complaint without recording such a finding.

17. Let me now turn to the facts of the present case and under the merit of the respective contentions of the counsel, applying the principle referred to above. Admittedly, the Assistant Sessions Judge, who tried S. C. No. 5 of 1965, did not record a finding in the Sessions case that the appellant herein had committed perjury and it was in the interests of justice to prosecute her. Not only that there was no finding to that effect ink the Sessions case which ended in Acquittal, but even a show cause notice as to why the appellant who committed perjury should not be proceeded against, was not issued before preferring the complaint before the Magistrate. It is true, as contended by the learned Public Prosecutor, that it was the same person who tried the Sessions case that file the complaint before the Magistrate, but on that account alone, it cannot be held that he had formed in his mind an hones and bonfire opinion that it was just and proper to prosecute the appellant. As already expressed earlier, I feel is not just and proper to draw any inference or presumption under section 114 of the Evidence Act that the Assistant Sessions Judge who tried the case being the same person that filed the complaint before the Magistrate, must be presumed to have come to such an honest conclusion that it was in the interests of justice to conduct an enquiry into the offence of perjury committed by the appellant before him. When there is no finding either in the original judgment or subsequently, it is very difficult to sustain the argument of the learned Public Prosecutor that the complaint in the present case is in order. Therefore, for all the reasons stated above, the proceedings in P. R. C. 1/68 on the file of the Judicial First Class Magistrate, Cuddapah that have arisen out of the complaint filed ink the present case, must be held to be not according to law and procedure contemplated under Section 476 Criminal P. C. and must be quashed. It is no doubt open to the Court to proceed afresh and make any complaint, if it so thinks, after following the procedure indicated above.

18. In the result, the appeal is allowed, quashing the complaint filed on 19-1-1968 by the Assistant Sessions Judge, Cuddapah before the Judicial First Class Magistrate, Cuddapah.

19. Appeal allowed.


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