D.S. Mathur, J.
1. This is a revision under Section 115. Civil P. C. by Sita Ram against the order dated 22.2-1964 of the Additional Civil Judge of Bulandshahr allowing the appeal of Jagan Lal, opposite party and thereby remanding the application under Section 476, Criminal P. C. for hearing on merits in accordance with the law.
2. The Additional Munsif before whom the application under Section 476, Criminal P. C. was made was of opinion that in view of Section 479-A, Criminal P. C., the application was not maintain, able and no complaint could be made after the decision of the case. The learned Civil Judge has, however, taken a contrary view holding that the present case was not covered by Section 479-A, Criminal P. C. on account of the present applicant having filed an affidavit, and not made a statement before the Court of law, in other words, in the eye of law, he had not appeared as a witness.
3. The effect of Section 479-A, Criminal P. C. can now be said to be beyond any controversy. What Sub-section (6) thereof lays down is that no proceeding shall be taken under Section 476, Criminal P. C. i. e., for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceeding could be taken under Section 479.A, Criminal P. C. Swearing a false affidavit and filing it in Court amounts to giving false evidence or fabricating false evidence. Consequently, the instant case would be covered by Section 479-A, Criminal P. C. if it be found that the false evidence was given or false evidence was intentionally fabricated by a person 'appearing before it as a witness'. If the person cannot be deemed to be one appearing before the Court as a witness, Section 479.A, Criminal P. C. shall be inapplicable and, consequently, proceeding under Section 476, Criminal P. C, can be taken,
4. The present case arises out of a civil suit for accounts and the affidavit containing false assertions was filed by the defendant, who was represented by a counsel, before the Commissioner who had been directed to take accounts. It will, therefore, be proper to consider the pro. visions of the Code of Civil Procedure while determining whether the present applicant, who bad filed the above affidavit through his counsel, is a person appearing before the Court as a witness.
5. The matter can be considered in the alter, native; that the word 'appearing' has no reference to the personal appearance of the person before the Court but has reference to his status as a witness; or the person must be both a witness and had appeared before the Court.
6. Section 479-A, Criminal P. C. was incorporated to ensure that a complaint, if made against a person for giving false evidence or for intentionally fabricating false evidence, is made quickly and no one is put to unnecessary expenses and inconvenience. At the time of pronouncing the judgment the Court is aware of the facts of the case and the nature of the evidence given by witnesses, and it can quickly decide whether any witness had made a perjured statement and if it was necessary to make a criminal complaint against him. The Court can forthwith direct the-making of a complaint or give a notice to the witness why a complaint be not made against him. Whether a complaint be made or not, can thus be quickly decided if it is necessary for the Court to express such an opinion at the time of the pronouncement of the judgment; but where an application under Section 476, Criminal P. C. is maintainable and it is not necessary for the Court to indicate in the judgment or order whether a complaint be or be not made against the witness, there would be a separate proceeding and there remains a reasonable possibility that the proceeding under Section 476, Criminal P. C., is decided by & Presiding Officer who had not pronounced the judgment. In such a case, the parties are put to unnecessary expenses and botheration and at the same time the Court has to spend more of its precious time over the decision of the question whether a complaint be or be not made against the person.
7. In this view of the matter witnesses, whether examined before the Court or on commission, stand in the same category and deserve to be treated similarly. While pronouncing judgment the Courts of law consider not only the deposition of witnesses examined before the Court but also of witnesses examined on commission. The Court forms an opinion as to the truth of the testimony of witnesses examined before the Court and also those examined on commission. If the word 'appearing' used in. Section 479.A, Criminal P. C., hag reference to the personal presence of a witness, and not to his status, it can be urged that no action under Section 479-A, Criminal P. C., can be taken against a witness examined on commission. This contention, if accepted, would nullify the intention of the legislature. Keeping the intention of the legislature in mind, it can be held that the word 'appearing' has reference to the status of the person, and not to his personal appearance. In other words, for so long as the person who is alleged to have given false evidence or to have intentionally fabricated false evidence has the status of a witness, action can be taken under Section 479.A, Criminal P. C., and no separate proceeding under S 476, Criminal P. C., shall be maintainable.
8. In any case, Section 479.A, Criminal P. C., does not speak of personal appearance. As provided in Order 5, Rule 1 (2), Civil P. C., a party can appear in person, or by a pleader duly instructed, or by a pleader accompanied by some person able to answer all the questions. Where a person is duly represented by a pleader or by a recognised agent, in the eye of law, he has put in appearance in Court and he shall be deemed to be present in Court. In the instant case, the defendant who had filed the affidavit in question had appeared through a pleader and, consequently he shall be deemed to have put in appearance.
9. Order 19, Rule 1, Civil P. C., makes it clear (bat the person filing the affidavit has the status of a witness. This rule authorises the Court to order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable. The pre-sent affidavit was filed to prove facts connected with accounting and, consequently, the affidavit of the defendant was as of a witness. A similar inference can be drawn from Section 5 of the Indian Oaths Act, 1873. Section Slays down by whom oaths or affirmations shall be made. Clause (a) thereof covers the case of witnesses. A witness includes a person who may lawfully give evidence before any Court or person having by law or consent of parties authority to examine such a person or to receive evidence. In the instant case, the defendant applicant could lawfully give evidence before the Commissioner and the Commissioner was authorized to receive evidence. The evidence was given by filing an affidavit duly sworn by the defendant. Consequently, while filing the affidavit, the defendant had the status of a witness.
10. To sum up, from whatever aspect the matter is looked into, the present case was fully covered by the provisions of Section 479-A, Criminal P. C., and no application under Section 476, Criminal P. C., was maintainable. As provided in Section 479-A, Criminal P. C., the complaint can be made by the trial Court or by the appellate Court. Even though the present proceeding is being quashed, the appellate Court shall have the jurisdiction to make a complaint if considered necessary.
11. The revision is hereby allowed and the order under revision is set aside while that of the Additional Munsif is restored. It is further ordered that the application under Section 476, Criminal P. C., was not maintainable and shall stand dismissed. Costs of all the Courts on the parties. Stay Order is vacated.