1. This application under Section 195 of the Code of Criminal Procedure read with Section 151 of the Code of Civil Procedure is filed requesting this Court to lay a complaint against the respondents in accordance with the provisions contained in Section 195 of the Code of Criminal Procedure and prosecute them for an offence under Section 191 of the Indian Penal Code punishable under Section 193, Indian Penal Code.
2. The petitioner herein filed the suit O. S. No. 49/70 on the file of the Court of the Subordinate Judge, Madanapalle, against the respondents and others for partition and separate possession of her share in the plaint schedule properties. Pending the disposal of the suit I. A. 393/70 was also filed by the petitioner herein for the appointment of a receiver and that application was allowed and an advocate by name Sri R. Sreeniyasa Shastry at Madanappalle was appointed as Receiver. An appeal. C. M. A. 298/71 was filed against the order appointing the receiver in the above application.
3-4. (Edt:- After recounting further history of the proceedings leading to the present application his Lordship proceeded as follows:-)
5. It Is under these circumstances that this petition is filed alleging that the respondents suppressed the fact that they have delivered possession to the Receiver, that they have participated in the auction held by the Receiver and that the first respondent became the highest bidder. The first respondent by swearing to a false affidavit obtained an ex parts order of suspension and made an unlawful gain by taking away the crops in the suit lands,
6. The 1st respondent filed a Counter stating inter alia that it is not correct to state that he made & false statement before this Court and obtained orders of suspension and cut and carried away the crops on the lands which were In the possession of the petitioner. Though there was an order of interim suspension passed by this Court the respondents stated that he (1st respondent) never took away the crops in the fields of the petitioner. Even subsequent to the passing of the orders of interim suspension the respondents stated that he (1st respondent) intimated to his advocate at Hyderabad that already the Receiver had taken possession of the properties on reporting which this Court dismissed the petition as infructuous. According to the respondents he (1st respondent) never made any statement with any intention of getting a wrong order from this Court nor did he take advantage of the order of this Court and cut and carry away the crops of the petitioner as alleged. On the other hand, according to the respondents, it is the petitioner herself that took away the entire produce from the lands. Further, the petitioner is stated to have already filed a complaint In the police station with the same allegations and the same is pending enquiry. The petitioner is doing all this only with a 'view to harass and gipite the respondents. In conclusion the respondents stated that whatever he (1st respondent) stated was by mistake bona fide and not with any Intention of making unlawful gain to him BH loss to the petitioner.
7. The point that arises for consideration in this matter is whether permission is to be accorded to lay a complaint against the respondents in accordance with Section 195 of the Criminal Procedure Code for prosecuting them for an offence under Section 191, Indian Penal Code.
8. Pending the disposal of O. Section 49/70 on the file of the Sub-Court, Madanapalle. I. A. 393/70 was filed for the appointment of a receiver. That application was granted and an advocate Receiver was appointed on 9-7-1971. The Receiver took possession of the plaint schedule properties on August 1. 1971. Possession receipt also is stated to have been executed by the 1st respondent in favour of the Receiver. The 1st respondent .participated in the auction that had taken place on August 1. 1971. and became the highest bidder and he deposited 1/4 of the bid amount undertaking to pay the balance on August 14 1971. An appeal C. M. A. 198/71 was filed on September 1, 1971 before this Court and an Interim order of suspension was obtained by the appellants on September 3, 1971. The (plaintiff filed an application C. M. P-5450/71 on October. 25, 1971 to get the above order vacated. That petition was dismissed at the instance of the respondents herein on their reporting that the matter has become infructuous. The dismissal was on November 30, 1971. This present petition was filed on 2nd February. 1972, nearly 2 months 3 days after the disposal of the C. M. P. 5450/70 and it may be noted in this connection that the C. M. A. is still pending.
9. The (petitioner submits that the respondents herein obtained interim orders from tins Court by swearing to a false affidavit for the purpose of securing wrongful gain to them and causing wrongful loss to the petitioner herein and in support of that plea, the petitioner submits in the affidavit filed in support of the petition that the respondents have removed the crops on the lands in question pursuant to the suspension order obtained by them from this Court. That allegation was stoutly denied by the respondents herein in the counter affidavit filed by them. It was stated in the counter that it is only the petitioner that removed the crops. In view of that disputed fact I am not in a position to know whether it is with the intention that was sought to be attributed to the respondents that they have sworn to this false affidavit in support of the petition filed by them for securing interim order of suspension.
10. The learned Counsel, Sri Sundara Raj an submits that this petition is intended not so much in the interests of justice but with a view to harass the respondents; and even otherwise, according to the learned Counsel, it is only a bona fide mistake that was committed by his client, in that, the matter was not allowed to reach the stage of final arguments and it is only at the instance of the respondents that the petition itself was got dismissed as having become infructuous. This argument, the learned Counsel wants this Court to kindly bear mind while adjudicating upon this petition.
11. We find that it is only subsequent to the passing of the delivery receipt by the respondents in favour of the Receiver evidencing the fact of the Receiver being put in possession that the respondents chose to approach this Court requesting this Court to have the order appointing the Receiver passed by the Court below suspended. But the circumstances under which that affidavit was sworn to. Sri Sundara Rajan, the learned Counsel for the respondents submits, are such as were disclosed in the affidavit and according to the learned Counsel it is only on account of some bona fide mistake that things happened that way.
12. Taking from the date of the disposal of the C. M. P. 5450/71, we find the present application is filed more than two months after the disposal of the petition. But it will be nearly more than three months since the date when the plaintiff chose to file a counter-affidavit requesting the court to have the interim suspension order vacated.
13. The question, under those circumstances, that arises for determination in this case is whether it is expedient in the interests of justice that an inquiry should be made into the offence reported by the petitioner.
14. As per Section 191 of the Indian Penal Code whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence, and Section 193 of the Indian Penal Code provides for the punishment for giving intentionally false evidence under Section 191. Under Section 195 of the Code of Criminal Procedure no Court shall take cognizance of any offence punishable under the sections of the Indian Penal Code enumerated therein including Section 193 when such offence is alleged to have been committed in. or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate. Section 476 of the Criminal Procedure Code provides for the procedure to be adopted in cases mentioned in Section 195 and it reads, so far as it is material, thus:-
When any Civil. Revenue or Criminal Court is whether on 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 inquiry, 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 for-' ward the same to a Magistrate.
15. In this context we may also notice the provisions contained in Section 479-A of the Code of Criminal Procedure which prescribes the procedure in certain cases of false evidence. As per that section notwithstanding anything contained in Sections 476 - 479 inclusive. when any Civil. Revenue or Criminal Court is of opinion that any person appearing before it is 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 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 fabricate and forward the same to a Magistrate of First Class having jurisdiction. Sub-section (6) of that section reads thus:-
No proceedings shall be taken under Sections 476 - 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this section.
16. My attention has been drawn to the case reported in Baban Singh v. Jagdish Singh. : 1967CriLJ6 where the question about the relative scope of the provisions of Section 479-A vis-a-vis Section 476 of the Code of Criminal Procedure (has been dealt with). In a case where Sub-section (6) of Section 479-A of the Code of Criminal Procedure is operative as per the (provisions contained in the very sub-section, no proceedings should be taken under Section 476. Stated that way, the proposition as adverted to by the Supreme Court is warranted directly by the language employed in Sub-section (6) and the said section itself. Section 479-A deals with a case of a person being a witness sought to be proceeded against under Section 476. The case lays down the principle that where a person can be proceeded against both under Section 476 as well as under Section 479-A the applicable provision of law is not Section 476 but on the other hand . it is Section 479-A. This is made explicit toy the language of Sub-section (6) thereof. Reliance is sought to be placed on this decision for the purpose of showing that an order directing an inquiry into offence can be made only at the time when the order disposing of the petition was passed. In view of the fact that Section 479-A is not applicable to the facts of this case because the respondent herein is not sought to be proceeded against in the capacity of himself being a witness the counsel appearing for the respondents cannot derive any assistance from this decision. In. Mahamad Abubacker Sahib v. Maham-mad Mohideen. (1955) 68 Mad LW 289 Justice Mack while discussing the scope of Section 476 observed that the filing of the petitions under Section 476 of the Code of Criminal Procedure shall have to foe strongly deprecated and discouraged if they are found to be filed several months after the judgment. It was held in Aiyakannu Pillai v. Emperor. (1909) ILR 32 Mad 49: (9 Cri LJ 41) (FB). a Full Bench decision of the Madras High Court, that the power conferred by Section 476 of the Code of Criminal Procedure can be exercised by the Court only in the course of the judicial proceeding or at its conclusion or so shortly thereafter as to make it really the continuation of the same proceeding in the course of which the offence is committed. In a case reported in Shaik Mohd. Maracayar v. Mohidden Kutty 1965 (2) Mad LJ 227 : (1966 Cri LJ 6G6) Justice Venkatadri discussed about the relative scope of Sections 476 and 479-A of the Code of Criminal Procedure. In re B. Arjunappa : AIR1963AP433 is a case arising under Section 479-A of the Code of Criminal Procedure but not under Section 476 with which alone we are at present concerned in this case. The case reported in Brijmohanlal v. Sohanraj. (1963) 1 Cri LJ 713 (Raj) was cited for the purpose of emphasizing the necessity to record a finding of opinion in accordance with the provisions of Section 476. That is not of much relevance in the present context.
17. As per the provisions contained in Section 476 of the Code of Criminal Procedure this Court has been given the (power, whether on application made to it in that behalf or otherwise, to make a complaint if this Court Is of the 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. Then the court may after such preliminary enquiry as it thinks necessary, record a finding to that effect and it may have to make a complaint then and forward the same to the concerned Magistrate having jurisdiction. We have already noticed that nearly more than three months after the filing of the counter-affidavit seeking the vacation of the interim suspension of the order of the appointment of a Receiver, the present petition is filed. The motive for the initiation of these proceedings seems to foe not so much in the interests of justice as it is to harass the respondents. The cause for the complaint of the petitioner in this case Is that the 1st respondent by swearing to a false affidavit has removed the crop from the lands which were taken possession of by the husband of the petitioner. That particular allegation of the petitioner was found stoutly denied by the respondents. The respondents, on the other hand, submit that it is the petitioner alone that has removed the crop from the lands in question. We do not have even the affidavit of the husband of the petitioner from whose lands the crop is stated to have been removed by the respondents herein. The object of swearing to a false affidavit according to the petitioner is only with a view to enable the respondents to remove the crop on the lands and if that is found to be a disputed fact, much reliance cannot be placed on this aspect of the matter. By the time the petitioner came to file an affidavit seeking the vacation of the order of interim suspension, she wag quite aware of the fact that the respondents swore to a false affidavit. It could have been certainly open to her at that stage to apprise this Court of the commission of the offence and take appropriate proceedings. The petitioner has not chosen to do so nor did she move in the matter at the time when the matter was got disposed of by dismissal as having become infructuous at the instance of the respondents The 1st respondent In his affidavit states that it is a bona fide mistake and he further states that he did not remove the crop and it is only at his instance that the C.M.P. itself was got dismissed as haying become infructuous without necessitating thus any adjudication on that petition. It was stated by the 1st respondent in his affidavit that there is a complaint also made by the petitioner before the police. That was not denied in the reply affidavit filed by the petitioner herself. The machinery employed under Section 476 of the Code of Criminal Procedure is not intended to enable the disgruntled parties to wreak vengeance against their opponents. It is intended to serve the interests of justice. The interests of justice in this case, for the aforesaid reasons, are not likely to be served by ordering (permission on?) the petition that was filed. On the other hand, it amounts to. as the learned Counsel for the respondents rightly submits, causing harassment to the respondents. Under these circumstances, I aim satisfied that there are no merits in this petition.
18. The petition, therefore fails and it is accordingly dismissed but in She circumstances without costs.