Chandra Reddy, J.
1. These three appeals are directed against the orders in Cri. M. Ps. Nos. 40 to 42 of 1954 on the file of the Additional Sessions Judge, Guntur, directing complaints to be filed against the appellants for offences of perjury. The circumstances giving rise to these appeals are these:-
2. In respect of an occurrence that took place in the Village of Etukuru, Guntur District, a charge-sheet was filed against 42 persons out of which 21 were discharged by the Committing Magistrate. The other 21 were put up for trial before the Additional Sessions Judge under various charges including one under Section 302,
The Sessions Judge acquitted all except five on 4-2-1954. Some of the accused who were discharged by the Committing Magistrate and one who was acquitted by the Sessions judge took out applications on 13-2-1954 before the Additional Sessions Judge under Section 476, Cr. P.C. against witnesses who are alleged to have falsely implicated them in the case.
After notice to the concerned persons i.e., the appellants herein and after a preliminary enquiry, the learned Judge thought that it was expedient in the interests of justice that an enquiry should be held into the offences said to have been committed by the appellants. He directed that a complaint should be drafted and filed before the Sub-Divisional Magistrate, Guntur. In compliance with this, complaints under Section 194 against two and under Section 194 read with Section 211, I.P.C. against four were filed before the S. D. M., Guntur.
3. The validity of these orders is questioned in these appeals.
4. It was first urged by Mr. Rama Rao that the Additional Sessions Judge was not competent to direct the complaints to be filed against the appellants because he was not a court within the meaning of Section 476. Under the Criminal P.C. there could be only one Sessions Court and the presiding officer referred to in Section 164 can have only reference to the Sessions Judge and the Additional Sessions Judge is one who is appointed to assist the Sessions Judge in the disposal of the cases.
An additional Sessions Judge could' only dispose of such work as was made over to him and as these applications were not transferred to him by the Sessions Judge he had no power to deal With these petitions.
5. In support of this contention, he relies on the provisions of Sections 17(4) and 123(3-B), Cr. P.C. Section 17(4) reads:
The Sessions Judge may also, when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge or, if there be no Additional or Assistant Judge, by the District Magistrate, and such Judge or Magistrate shall have jurisdiction to deal with any such application.
6. Section 123(3-B) provides that
a Sessions Judge may in his discretion transfer any proceedings laid before him under Sub-section (2) or Sub-section (3-A) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this Section in respect of such proceedings.
7. It is argued on the basis of these two provisions of law that since the jurisdiction of an Additional Sessions Judge to hear cases arises only by virtue of transfer of cause to him under these two sections, the Additional Sessions Judge's power should be limited only to cases mentioned in these two Sections. In other words, the Additional Sessions Judge cannot hear any proceeding which is not transferred to him by the Sessions Judge under either of the two Sections.
8. To appreciate this argument, it is necessary to refer to the terms of Section 476, Cr. P.C. under which action has been taken in these appeals:
When any Civil, Revenue or Criminal Court, is, whether on an application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in 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, and may take sufficient security for the appearances of the accused before such Magistrate or if the alleged offence is non-bailable, may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate.
9. It is seen that the courts referred to in that Section are authorised to direct an enquiry in respect of offences which appear to have been committed in relation to a proceeding in that Court. The question for consideration is whether the Additional Sessions Judge who heard the Sessions case out of which petitions for action under that Section arise is competent to entertain them without an order of transfer by the Sessions Judge.
There can be little doubt that if they are regarded as independent applications, the Additional Sessions Judge could not proceed with an enquiry except when they are assigned to him under Section 17, Cr. P.C. But, in my opinion, these applications are ancillary or incidental to the proceedings of which he had seisin.
It would be anomalous to hold that an Additional Sessions Judge is powerless to direct an enquiry into an offence said to have been committed in the course of the proceedings before him. Normally speaking, it is the judge who has tried and finally determined a case that could properly take action under Section 476, Cr. P.C. Nor is it easy to accept the contention that an Additional Sessions Judge is not a presiding officer of that Court.
I do not think this expression connotes only the Sessions Judge. The expression is comprehensive to include even the Additional Sessions Judge. Under Section 9, the State Government could appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more Sessions Courts and such Additional Judges are Presiding Officers for the purpose of Section 476, Cr. P.C. It follows that the orders under appeal cannot be assailed on that ground.
10. It was alternatively contended by Mr. Ramarao that the orders in question are without jurisdiction for the reasons that the action was not initiated either in the course of the hearing of the case or immediately after the judgment was delivered. In this case, the judgment was delivered on 4-2-1954 and the petitions giving rise to these appeals were filed on the 13th. Notice was ordered on the 15th and the orders directing the filing of complaints were made on the 24th. It is maintained that this delay has vitiated the proceedings.
11. This contention is founded on a ruling of a Pull Bench of the Madras High Court in 'Aiyakannu Pillai v. Emperor' 32 Mad 49 (FB) (A). It was there laid down that the power conferred by Section 476 could be exercised by the Court only either in the course of judicial proceedings or at its conclusion or so shortly thereafter as to make it really the continuation of the same proceedings in the course of which the offence was committed.
The effect of this ruling is that action should be taken against the persons concerned under this Section at least immediately after the delivery of the judgment, so that it may be regarded as a continuation of the judicial proceedings in the course of which this offence has been committed.
12. This ruling will certainly help the appellants if the law upon which that ruling is founded has continued to be the same. In 1908 when this judgment was rendered, Section 476, Cr. P.C. stood thus:
When any Civil, Criminal or Revenue Court is of opinion that there is ground for inquiring into any offence referred to in Section 195, and committed before it or brought under its notice in the course of a judicial proceeding, such court, after making any preliminary inquiry that may be necessary, may send the case for inquiry or trial to the nearest Magistrate of the first class, and may send the accused in custody or take sufficient security for his appearance, before such Magistrate; and may bind over any person to appear and give evidence on such inquiry or trial.
13. A comparison of this section with Section 476 as it stands today shows that the words 'brought under its notice in the Court of Judicial proceedings' are omitted and the words 'whether the application made by it in this behalf or otherwise' have been added. The new Section has conferred a right upon a party to move the court for necessary action arid has also dispensed with the necessity to do it during the continuance of the proceedings before it.
It may be pointed out here that the present Section is the result of an amendment in the year 1923. It is on the language of this Section as it stood prior to amendment, namely, 'brought under its notice in the course of judicial proceedings' that 32 Mad 49 (PB) (A) is based.
14. The import of the omission of these words in the present section was considered by some of the High Courts. In 'Bhagawandas Narandas v. D. D. Patel and Co.' AIR 1940 Bom 131 (B.) a similar question arose for consideration. The learned Judge decided that on the section as it stands the application need not be made in the course of the proceedings out of which it arises or immediately thereafter.
The opinion expressed by Burn, J. in 'Maromma v. Emperor' AIR 1933 Mad 125 (C) is to the same effect. There the learned Judge has observed that the authorities cited for the proposition similar to the one advanced here would not apply after the amendment. The view taken by Mockett J. in 'Kuppuswamy Chettiar v. Subbaraya' AIR 1941 Mad 574 (D) accords with this principle. A decision of the Allahabad High Court in 'Laxmi Chand v. Asaram' : AIR1954All381 (E) is on the same lines.
In my opinion, after the amendment, it could not be put as a matter of law that action should be taken under Section 476, Cr. P.C. either in the course of judicial proceedings or immediately after its Vlosure. It may be an ingredient in determining whether prosecution should be launched or not,
15. Mr. Ramarao the counsel for the appellants drew my attention to the observations of Mack J. in 'Mahamad Abubacker v. Mohd. Mohideen' 1955-1 Mad LJ 461 (F). That was a case where a complaint was laid some years after the commission of the offence. In a revision against the order of the Sessions Judge refusing to lay a complaint, the learned Judge refused to set aside that order. In the course of the judgment it was remarked as follows:-
It is absolutely necessary that the trial court should make up its mind and dispose of an application under Section 476, Crt. P.C. as a continuation of the suit itself so that when the matter comes up in appeal there can be a final adjudication both of the suit, and the laying of a complaint under Section 476, the trial of which is invariably stayed pending disposal of the appeal.
16. It was further said:
I think that in this category of cases within the wider scope of Section 476, Cri. P.C. the principle laid down in Rahimaduila Sahib v. Emperor' 31 Mad 140 (FB) (G) and 32 Mad 49 (PB) (A) should be applied not only to Judges and Magistrates acting 'Suo Motu' after proceedings have been closed1, but also to applications by parties under Section 476, Cr. P.C. which must be moved by a party to the suit before or immediately after judgment.
17. On the facts of the case, the decision, if I may say so with respect, is the correct one. But if the observations extracted above are meant to lay down the proposition that the Judges should take action suo motu or the application should be made by a party to the proceeding in the course of the judicial proceedings, I think it would be stating the proposition too broadly.
The learned Judge does not seem to have considered the effect of the amendment nor is there any reference to the cases cited above which have said that the rulings based on the earlier Section would have no application after the amendment.
18. Reliance was next placed on the judgment of Bhimasankaram J. in Hydar Saheb, In re: Cr. Revn. Cases Nos. 16 and 17 of 1955 (Andhra) (H) of this Court. The learned Judge has not laid down as a proposition of law that the delay in launching proceedings under Section 476 vitiates the proceedings. After referring to 32 Mad 49 (FB) (A) he remarked that in the circumstances of that case where there was a delay of two or three months and also having regard to the merits of case power could not be properly exercised.
As I have already said, in considering whether the request of the party should be acceded to for prosecuting, the delay will be a relevant consideration. Therefore, this contention also cannot prevail.
19. But on the merits, the orders under appeal seem to be unsustainable. Taking up first Crl. Mis. Petition 40/54 out of which C. A. 445/54 arises, the order does not indicate the evidence that was given by the appellant in the Sessions case which falsely implicated any of the accused. According to P. W. 6 he went to the village only after the commission of the offence and he had no personal knowledge of the incident at all.
The learned Judge seems to have thought that his statement that the Inspector of Police took his signature on a paper on which something was written and that the contents were not read out to him was not a true one as it was contradicted by the Inspector of Police. But, that has no bearing on the involvement of the respondents herein.
The contents of that statement are not disclosed. So it is not known whether any attempt was made by the appellant to lug in any of the accused in that statement. In such a situation, it is difficult to say that the appellant has committed any offence in respect of a proceeding before the Sessions Judge.
20. With regard to the appellant in Crl. Appeal No. 446 of 1954, the order is equally bad. It may be pointed out that this appellant is accused of having given false evidence before the committing Magistrate. The case of the applicant in the lower Court was that the evidence of the appellant was disbelieved and his plea of alibi was accepted relying on the evidence led by him and for that reason the appellant must be said to have committed.
Beyond the recitals in the petition, there was no means for the additional Sessions Judge to know which of the two versions was true because the evidence on which the order of discharge was based was not brought on record. It is only the statement of the appellant in the committal court that was marked as evidence.
Statements made by witnesses in a committal court will not be evidence unless they are brought on record under Section 288, Cr. P.C. or under Section 33, Evidence Act. That being so, I cannot see how the lower Court could say that the appellant gave intentionally false evidence against the accused who were discharged by the committing court. So, the order trader the appeal in C. A. 446/54 has to be quashed.
21. The case of the appellants in C. A. 447/ 54 stands on a better footing'. The learned Judge had not before him either the statements of the appellants or those of the defence witnesses on the strength of which the application in the lower court was discharged. None of the statements was marked under Section 238, Cr. P.C.
Without the evidence said to have given by the appellants brought on record, the Sessions Judge could not judge whether the witness had committed perjury in the court of the committing Magistrate. For these reasons, the prosecution of the appellants cannot be said to be legitimate.
22. It follows that the orders directing the filing of complaints against the appellants and the subsequent complaints against the appellants in all the three appeals have to be quashed and the appeals allowed.