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Krishna Nand Gupta Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1966CriLJ1112
AppellantKrishna Nand Gupta
RespondentState of U.P.
Excerpt:
- - 3. complained of pain on the back of neck and left lower chest and right buttock with no mark of injury. the evidence, however, clearly indicates that pages 13, 14, 15 and 16 of the jain injury register have been torn. gupta is a completely unreliable witness. ..before we part with the case, we would like to mention that we are not satisfied with the statement made by dr. as we would have to consider preferring a complaint, we would like to give an opportunity even in respect of two sections not covered by the provisions of section 476 of the code of criminal procedure to dr. 5. it clearly follows, that the complaint was made by the high court under section 476 (1) of the cr. where therefore in the order passed by the high court directing complaint to be filed against a witness.....r. chandra, j.1. in criminal appeal no. 355 of 1962 mohammad sami v. state and capital sentence reference no. 25 of 1962 state v. mohammad sami, under the orders of hon'ble nigam and misra, jj. a complaint under sections 471, 466, 193 and 218 of the i.p.c. was filed against dr. k.n. gupta. when the complaint came up for hearing before the magistrate, an objection was raised on behalf of the petitioner, that in view of the recent pronouncement of the supreme court in the case of shabir hussain v. state of maharashtra : air1963sc816 a complaint for the offences of giving false evidence and fabricating false evidence could be made only in accordance with the provisions of section 479-a of the cri.p.c. and since the complaint in the instant case had been filed under section 476, cri.p.c. the.....
Judgment:

R. Chandra, J.

1. In Criminal Appeal No. 355 of 1962 Mohammad Sami v. State and Capital Sentence Reference No. 25 of 1962 State v. Mohammad Sami, under the orders of Hon'ble Nigam and Misra, JJ. a complaint under Sections 471, 466, 193 and 218 of the I.P.C. was filed against Dr. K.N. Gupta. When the complaint came up for hearing before the Magistrate, an objection was raised on behalf of the petitioner, that in view of the recent pronouncement of the Supreme Court in the case of Shabir Hussain v. State of Maharashtra : AIR1963SC816 a complaint for the offences of giving false evidence and fabricating false evidence could be made only in accordance with the provisions of Section 479-A of the Cri.P.C. and since the complaint in the instant case had been filed under Section 476, Cri.P.C. the entire proceedings became null and void, and the Magistrate had no power to proceed with the case. The Magistrate dismissed the objection. Being aggrieved with that order, Dr. K.N. Gupta went up in revision to the Sessions Judge, Lucknow. He also summarily dismissed the revision. Against that order, he filed the present revision in the High Court. The revision came up for hearing before our brother Lakshmi Prasad, and he referred it to a larger Bench, as some important questions of law were involved. We have heard the learned Counsel for the parties at length.

2. The primary question for consideration in the present revision is, whether the complaint for the offences under Sections 471, 466, 193 and 218 of the Indian Penal Code, could be filed under Section 476 or 479-A of the Cri.P.C. The contention on behalf of the petitioner is, that the complaint should have been filed strictly according to the provisions of Section 479-A of the Cri.P.C., and since mandatory provisions of law have not been complied with, the entire proceedings became null and void, and no action could legally be taken on the complaint filed in the Court.

3. Dealing with the evidence of Dr. K.N. Gupta, the Hon'ble Judges made the following observations:

D.W. 1, Dr. K.N. Gupta examined Mohammad Sami's injuries in the jail. According to him, there were three injuries:

1. Sloughing irregular lacerated wound ' 1' ' on the back of first inter phalangeal joint of the right ring finger.

2. Incised wound 2' 1/10' skin deep on the palm of the left hand transversely.

3. Complained of pain on the back of neck and left lower chest and right buttock with no mark of injury.

The prosecution have seriously challenged the genuineness of injury No. 2. This injury is not mentioned either in general diary report Ext. Ka-21 or even in the Jail Gate Register as is deposed by C.W. 1 Raghubir Prasad. The learned Sessions Judge had certain comments to make against the evidence of Dr. K.N. Gupta and also the record prepared by him. In order to be more certain in the formulation of our view, we summoned Dr. K.N. Gupta and have examined him under the provisions of Section 438 read with 374 of the Code of Criminal Procedure. We are of opinion that his statement is absolutely unworthy of belief. We do not want to express ourselves further as we might take certain further proceedings against him. The evidence, however, clearly indicates that pages 13, 14, 15 and 16 of the Jain injury register have been torn.... In the circumstances we are of opinion that Dr. K.N. Gupta is a completely unreliable witness. His evidence cannot be attached the least weight. We are, therefore, of opinion that the existence of the incised wound on the palm of the left hand of Mohammad Sami is not proved. We would go further and hold that this injury never existed and has been got added to the injury report only in order to make out a case of self-defence....

Before we part with the case, we would like to mention that we are not satisfied with the statement made by Dr. K.N. Gupta in this ease either in the court below or before us. We are of opinion that it is expedient in the interest of justice that an enquiry under Section 476, Cri.P.C. should be made against him into offences referred to in Section 195, Sub-section (1) Clauses (b) and (c) of the Code of Criminal Procedure, i.e. offences punishable under Sections 193 and 471 in addition to offences punishable under Sections 218 and 466 of the Indian Penal Code. As we would have to consider preferring a complaint, we would like to give an opportunity even in respect of two sections not covered by the provisions of Section 476 of the Code of Criminal Procedure to Dr. K.N. Gupta. We, therefore, direct that a separate proceeding be started and notice given to Dr. K.N. Gupta to show cause....

Vide order, dated 31st July 1962, at p. 40 of the paper book.

4. In pursuance of this order a notice was issued to Dr. Gupta to appear in person in Court on 31st August 62 at 10.15 a.m. to show cause why a complaint under Sections 471, 466, 193 and 218 of the Indian Penal Code read with Sections 476 and 195, Cr.P.C., be not filed against him (vide notice, dated 31st July 62). On 1st October 62, Dr. K.N. Gupta filed an application and offered an unconditional apology, and threw himself at the mercy of the Court (vide pp. 48 and 49 of the paper book). After giving a hearing to the petitioner, the Hon'ble Judge ordered that a complaint be filed on the charges under Sections 471, 466, 193 and 218, I.P.C., (vide order, dated 5th February 63 at p. 47 of the paper book). Accordingly, the complaint was filed on 28.2.63, and that has given rise to the present revision.

5. It clearly follows, that the complaint was made by the High Court under Section 476 (1) of the Cr.P.C. Section 476(1) runs 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 forward the same to a Magistrate of the first class having jurisdiction....

Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint....

6. Similarly, Section 195(1)(b) and (c) of the Cr.P.C., lays down;

No Court shall take cognizance....

(b) of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, 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; or

(c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate....

7. Section 479-A, which has been added by Act XXVI of 1955, provides:

(1) Notwithstanding anything contained in Sections 476 to 479 inclusive, when any Civil, Revenue 6r Criminal Court is of opinion that any person appearing before it as 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 farbicated and forward the same to a Magistrate of the first class having jurisdiction....

Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint....

5. In any case, where an appeal has been preferred from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under Sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said sub-section may be exercised by the Appellate Court; and where the Appellate Court makes such complaint, the provisions of Sub-section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity or being heard.

6. No proceedings shall be taken under Sections 476 to 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.

8. Sections 476 to 479 relate to offences referred to in Section 195, Sub-section (1), Clauses (b) and (c). Among the offences referred to in Clause (b) of Section 195(1) are the offences of giving or fabricating false evidence. Section 479-A relates to offences of giving or fabricating false evidence in a judicial proceeding by a witness. Sub-section (6) of Section 479-A, as would appear, creates a bar against any proceeding being taken under Sections 476 to 479 for prosecuting a person for giving or fabricating false evidence, if such proceeding can be taken under Section 479-A. It would, therefore, appear that the provisions of Section 479-A override the provisions of Sections 476 to 479 in so far as they relate to the giving of false evidence or fabricating false evidence by a person who gives evidence during the course of the judicial proceedings. When no action has been taken against him in accordance with the provisions of Section 479-A of the Code it is not open to have recourse to the provisions of Section 476 of the Code; to do so, would be to go against the provisions of Sub-section (6) of Section 479-A. But Section 479-A, Cr.P.C. has not impliedly repealed Section 476 of the Code in respect of all cases of witnesses giving or fabricating false evidence in judicial proceedings. The provisions of Section 476 of the Code are still available against witnesses whose cases cannot be brought under Section 479-A for one reason or another. Section 479-A applies where the Court acts suo motu at the time of declaring its judgment and records a finding that a person appearing before it as a witness had intentionally given false evidence or had intentionally fabricated false evidence. Under Section 476 the Court can act on an application made to it in this behalf or even suo motu. The test in every case was to be whether proceedings could have been taken under Section 479-A and it was only in those cases where this question was to be answered in the affirmative that the old law became inoperative. In all other cases it could be used just as it was being used before the enactment of Section 479-A. In relation to the prosecution of any person appearing before a Court as a witness for giving false evidence or fabricating false evidence, Section 479-A engrafts an exception to Section 476, Cr.P.C., Sub-section (6) of Section 479-A makes it clear that the provisions of that section alone are applicable and not the provisions of Sections 476 to 479 for the prosecution of a witness who has given or fabricated false evidence.

9. Section 479-A only applies to a case where a witness has intentionally given false evidence in any stage of a judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of a judicial proceeding. The language used is exactly similar to the language used in Section 193 of the Indian Penal Code and it is obvious therefore that Section 479-A of the Code of Criminal Procedure, applies to a case where an offence is alleged to have been committed under Section 193 of the Indian Penal Code. The combined effect of Sub-sections (1) and (5) is to require the Court intending to make a complaint, to record a finding that in its opinion a person appearing as a witness has intentionally given false evidence and that for the eradication of the evils of perjury and in the interests of justice, it is expedient that such witness should be prosecuted for the offence and to give the witness proposed to be proceeded against, an opportunity of being heard as to whether a complaint should be made or not. The finding must be not only that the witness has given or fabricated false evidence, but also that, for eradication of evils of perjury and fabrication of false evidence it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him.

10. It thus follows that the special procedure prescribed under Section 479-A is only for the prosecution of a witness for the act of giving false evidence in any stage of a judicial proceeding or for fabricating of false evidence for the purpose of being used in any stage of a judicial proceeding. Such acts have been made punishable under Section 193 and cognate sections in Chap. XI of the Indian Penal Code. Chapter XI of the Indian Penal Code relates to 'false evidence and offences against public justice'. Section 193 of the I.P.C., which falls under that chapter, lays down:

Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished....

Section 192 of the Act defines 'fabricating false evidence'. It runs thus:

Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said 'to fabricate false evidence.

11. It thus becomes abundantly clear that the act of intentionally giving false evidence in any stage of judicial proceeding and the act of fabricating false evidence for the purpose of being used in any stage of a judicial proceeding, fall exclusively within the purview of Section 479-A of the Cr.P.C.

12. In a decision of the Supreme Court in Dr. B.K. Pal Chaudhary v. State of Assam : 1960CriLJ174 , it was held:

In a case governed by Sub-section (5) of Section 479A the terms of both Sub-sections (1) and (5) have to be complied with. The combined effect of these sub-sections is to require the Court intending to make a complaint, to record a finding that in its opinion a person appearing as a witness has intentionally given false evidence and that for the eradication of the evils of perjury and in the interests of justice, it is expedient that such witness should be prosecuted for the offence and to give the witness proposed to be proceeded against, an opportunity of being heard as to whether a complaint should be made or not.

Where therefore in the order passed by the High Court directing complaint to be filed against a witness there was no finding recorded by it that the witness had intentionally given any false evidence or that it was expedient to proceed against him for the eradication of the evils of perjury and in the interests of justice, and further, the High Court did not give the witness a proper hearing to which he was clearly entitled under the terms of Sub-section (5) of Section 479-A; the order was made in breach of the express provisions of the section and could not be allowed to stand. The finding required to be made by Section 479-A(1) was only of a prima facie nature and that it could not be a finding which would have any force at the trial upon the complaint made pursuant to that finding.

13. In another case, Babu Lal v. State of Uttar Pradesh : 1964CriLJ555 , it was held:

It is clear from the terms of Sub-section (6) of Section 479-A that the procedure prescribed thereby alone applies if the case falls within Sub-section (1) of that section. But Sub-section (1) has a limited operation; it applies only to the prosecution of a witness appearing before the Court who 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. The sub-section may therefore be resorted to only in a case which falls within the first paragraph of Section 193 of the Indian Penal Code and allied Sections 194 and 195 when it is committed by a witness appearing before the Court. The phraseology used in Section 479-A is plain and unambiguous; it excludes the jurisdiction of the Court to proceed under Sections 476 to 479, in respect of offences specified in Section 195(1)(b) and (c) of the Code of Criminal Procedure only where a person appearing before-the Court as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose or being used in any stage of the judicial proceeding.

14. Similar view was expressed in the case of Raghubir Prosad Dudhwala v. Chamanlal Mehra 1964 All WR (HC) 485: 1964 (1) Cri LJ 489 (SC). It was held:

The special procedure of Section 479-A is prescribed only for the prosecution of a witness for the act of giving false evidence in any stage of judicial proceedings or for fabrication of false evidence for the purpose of being used in, any stage of a judicial proceeding. There is nothing in the section which precludes the application of any other procedure prescribed by the Code in respect of other offences. In applying the principle that a special provision prevails over a general provision, the scope of the special provision must be strictly construed in order to find out how much of the field covered by the general provision is also covered by the special provision. Examining the special procedure prescribed by Section 479-A in that light, it is important to notice that the act of intentionally giving false evidence in any stage of Judicial proceeding and the act of fabricating false evidence for the purpose of being used in any stage of a judicial proceeding mentioned in Section 479-A of the Cr.P.C. are the acts which are made punishable under Section 193 of the I.P.C. and cognate sections in Chap. XI.

It appears clear to us therefore that it is prosecution in respect of Section 193 of the I.P.C. and cognate sections in Chap. XI that is dealt with Under Section 479-A. If the legislature had intended that the special procedure would apply to offences other than offences under Section 193 of the I.P.C. and cognate sections in Chap. XI it would have used clear words to that effect....

15. Section 218 also falls under Chap. XI of the' I.P.C. The essentials of the offence under this section are:

1. The offender must be a public servant charged with the preparation of a record or writing.

2. He must have framed that record or writing incorrectly.

3. He must have done so with intent to cause or knowing it to be likely that he will1 thereby

(a) cause loss or injury to the public or any person, or

(b) save any person from legal punishment, or

(c) save any property from forfeiture or other charge to which it is legally liable.

16. From the observations made by the Hon'ble Judges against the evidence or Dr. Gupta, it is clear that he made a false record of the injuries with the object of helping the accused in his defence, at the trial. So, this offence would also be fully covered under Section 479A of the Code of Criminal Procedure. This section finds no place under Section 195(1)(b) of the Code of Criminal Procedure. So, the provisions of Section 476, Code of Criminal Procedure, are inapplicable to it. It was urged that Section 479A(6) creates bar only against proceeding being taken under Sections 476 to 479 of the Code of Criminal Procedure if such proceeding could be taken under Section 479A and as proceedings under Section 218 of the Indian Penal Code are not included in Section 476 read with Section 195(1)(b) or (c), there was no bar to a complaint being filed under Section 218 of the Indian Penal Code apart from the provisions of, Section 476 of the Code of Criminal Procedure, This argument it is difficult to accept. Section 479A of the Code of Criminal Procedure provides as to how the Court is to proceed in case of prosecuting a person for intentionally fabricating false evidence for the purpose of being used in any stage of a judicial proceeding and if it provides a certain manner of doing so then it is only in that manner that action can be taken for prosecuting a person for intentionally giving false evidence or intentionally fabricating false evidence for the purpose of being used in any stage of judicial proceeding. This is in consonance with the principle laid down in Nazir Ahmad v. King-Emperor , wherein it has been pointed out that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Keeping this rule in view even for the prosecution for an offence under Section 218 of the I.P.C. the complaint could not be filed by the Bench apart from the way prescribed under Section 479-A of the Cr.P.C. Thus the complaint both for the offences under Sections 193 and 218 of the I.P.C. should have been strictly in accordance with the requirement of Section 479-A of the Cr.P.C. Since the Hon'ble Judges did not take action under Section 479-A they also did not record a clear finding that the witness had intentionally given or fabricated false evidence, and it was expedient to proceed against him for the eradication of evils of perjury. So, for non-compliance with the mandatory provisions of law, the order for filing the complaint on the charges under Sections 193 and 218 of the I.P.C. could not be maintained. Complaint on those charges should have been filed, after strictly observing the special procedure prescribed under Section 479-A of the Cr.P.C. As regards the offences under Sections 471 and 466, I.P.C. they do not clearly fall within the purview of Section 479-A of the Cr.P.C. Section 195(1)(c) of the Cr.P.C. mentions:

of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding....

17. Section 471 of the I.P.C., has been specifically mentioned in the above sub-section. So, for that offence action could certainly be taken under Section 476 of the Cr.P.C. The sub-section referred to above, also includes 'any offence described in Section 463 of the I.P.C.' It falls under Chap. XVIII, which refers to offences relating to documents, etc. Section 463 defines 'forgery'. It lays down:

Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

18. Section 466 prescribes punishment for forgery of record of Court or of public register, etc. The essentials of the offence are:

1. That the accused forged the document.

2. That the document forged is one of the kinds specified, in the section.

So, a complaint on the charges under Sections 466 and 471 of the I.P.C., could be filed under Section 476 of the Cr.P.C. These offences are not covered by Sub-section (1) of Section 479-A of the Cr.P.C.

19. In 1964 All WR (HC) 485 : (1964 (1) Cri LJ 489 (SC) (supra) it was held:

We are therefore of opinion that Section 479-A has no application to prosecution for offences other than an offence under Section 193 and cognate sections in Chap. XI and that as regards other offences Sections 476, 477, 478 and 479 continue to apply even after the enactment of Section 479-A.

The same view was expressed in : 1964CriLJ555 . It was held:

An offence punishable under Section 471, I.P.C. being one of fraudulently or dishonestly using as genuine any document which the accused knows or has reason to believe to be a forged document, does not fall within the category contemplated by Section 479(1) of the Cr.P.C. and, therefore, the authority of the Court to act under Section 476 of the Code is not impaired by Sub-section (6) of Section 479-A.... The offences of forgery and of fabricating false evidence for the purpose of using it in a judicial proceeding are, therefore, distinct and within the description of fabricating false evidence for the purpose specified in Section 479-A, Cr.P.C., the offence of forgery is not included. In any event the offence penalised under Section 471 I.P.C. can never be covered by Sub-section (1) of Section 479-A. Therefore, for taking proceeding against a person who is found fraudulently in any judicial proceeding, resort may only be had to Section 476, Cr.P.C.

20. We may point out in the following observation made by this Court in dealing with the true interpretation of Section 479-A, Cr.P.C. in : AIR1963SC816 :

From this it would follow that whereas Section 476 is general provision dealing with the procedure to be followed in respect of a variety of offences affecting the administration of justice, in so far as certain offences falling under Sections 193 to 195 and Section 471, I.P.C. are concerned the Court before which that person has appeared as a witness and which disposed of the case can alone make a complaint.

The words 'and Section 471' appear to have crept in by oversight. That is clear from the observation made by the Court earlier in the judgment, that the discussion relating to the exclusive operation of Section 479-A of the Code of Criminal Procedure was restricted to the offence of intentionally giving false evidence in any stage of judicial proceeding.

21. For the reasons already given, we are of opinion that the complaint for the offences under Sections 466 and 471, I.P.C., under the provisions of Section 476, Cr.P.C., is perfectly in order. Since the case is already pending in Court, we have deliberately refrained from expressing any opinion on the merits of the charges.

22. Accordingly, the revision is partly allowed and the orders of the Courts below are modified to this extent that the complaint shall proceed only in respect of the charges under Sections 466 and 471 of the I.P.C. As regards the other charges, namely, under Sections 193 and 218 of the I.P.C., no action need be taken.


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