P.V. Dixit, J.
1. This is an appeal under Section 476-B, Cr. P. C., from an order of the District Judge of Indore, directing a complaint to be filed against the appellant in respect of an offence under Section 193, I. P.C.
2. The material facts are that in a suit filed by the respondent against the appellant and his brother Dhannalal in the Court of the District Judge of Indore, for the recovery of Rs. 63227-8-0 as the balance due on account of certain transactions, the plaintiff tendered in evidence a statement of accounts said to have been made up by the appellant himself in his own hand. The appellant denied that the statement was written out by him. In his evidence the plaintiff Ramkishan stated that the appellant had himself written out the statement of accounts in question and had given it to him.
The plaintiff also examined a handwriting expert to show that the statement was in the handwriting of the appellant. On a consideration of the statement of the plaintiff and the deposition of thehandwriting expert and the probabilities of the case, the learned District Judge came to the conclusion that the statement of account was in the hand-writing of the appellant Mannalal. The plaintiffs claim was decreed by the learned District Judge drt 29-3-1956. The decree was modified by this Courton -14-8-1957.
The modification was only with regard to theinterest amount. After the claim was decreed by the original Court, the plaintiff presented an application under Section 476, Criminal P.C., for a complaint being filed against Mannalal in respect of an offence under Section 193, I. P. C., alleging that by denying that the statement of accounts in question was not, in his handwriting the appellant deliberately gave false evidence.
The appellant Mannalal also made a similar application against the plaintiff Ramkishan, The learned District Judge of Indore, accepting Ramkishan's petition, directed a complaint to be filed against Mannalal. The prayer of Mannalal for the prosecution of Ramkishan was, however, rejected.
3. Mr. Vijaywargi, learned counsel for the appellant argued that in the suit filed, by Ramkishan, the judgment was pronounced by the learned District Judge on 29-3-1956; that on this date the amendments made in the Criminal Procedure Code by Act No. 26 of 1955 had already come into force and after the said amendments in the Code, a prosecution against a person who had given false evidence or has fabricated false evidence could he started only under the new Section 479A and not under Section 476; that if the learned District Judge thought that the appellant had given false evidence before him in regard to the statement of accounts he should have recorded a finding at the time of the delivery of judgment stating his reasons that in his opinion Mannalal had intentionally given false evidence and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it was expedient that he should be prosecuted for an offence under Section 193, I. P. C.; that no such finding was given by the learned District Judge at the time of the delivery of judgment; and that under Sub-section (6) of Section 479A, Criminal P. C., no proceedings could be taken against the appellant under Sections 476 to 479 for giving false evidence when proceedings could have been taken against him under Section 479A.
4. In my opinion, the contention advanced by the learned counsel for the appellant must be given effect to. There can be no doubt that by virtue of Section 116 of Act No. 26 of 1955, the new Section 479A applies to all proceedings instituted after the commencement of the aforesaid amending Act and also to all proceedings pending in any Criminal Court on the date of such commencement.
In this case, the judgment of the learned District Judge was pronounced on 29-3-1956 and thereafter the respondent moved the learned District Judge for prosecuting the appellant for an offence under Section 193, I. P. C. On the date of the pronouncement of the judgment, Section 479-A, Criminal P. C., was already in force and governed the matter.
Under that section, if prosecution of a party is intended for giving false evidence, action must be taken simultaneously with the delivery of the judgment in the original proceedings. No prosecution can be started at any later stage. Sub-section (6) of Section 479A makes it abundantly clear that the procedure laid down in Section 479-A (1) is not alternative to the one in Sections 476 to 479, Criminal P. C.
That sub-clause says that no proceedings can be started under Sections 476 to 479 inclusive for the prosecution of a person for giving false evidence, if in respect of such a person proceedings may be taken under this section. The expression 'may be taken' in Sub-section (6) does not mean discretionary proceedings but means proceedings which could be taken.
In the present case, if the appellant's prosecution was intended by the learned District Judge, he should have acted in conformity with Section 479-A, Criminal P. C. Not having done that, he cannot now fall back on Section 476 and direct a complaint to be filed against the appellant for an offence under Section 193, I. P. C. The matter is plain enough and does not require any elaboration in view of the very clear provisions of Sub-section (6) of Section 479-A, Criminal P, C.
In Jai Bir Singh v. Malkhan Singh, AIR 1958 All 364, also it has been said that the effect of Section 479-A, Criminal P. C., is that for prosecution of a person who appears as a witness and gives false evidence or fabricates false evidence the provisions of that section alone apply and not the provisions of Sections 476 to 479, Criminal P. C. In the Allahabad case some observations have been made suggesting that Section 479-A, Criminal P. C., repeals by implication Sections 476 to 479. Criminal P. C., so far as matters dealt with by Section 479-A are concerned.
I think it would be more correct to say that 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, Criminal P. C. The direction given by the learned District Judge about the appellant's prosecution must, therefore, be quashed.
5. Even otherwise the order of the learned District Judge directing a complaint to be filed against the appellant for an offence under Section 193, I. P. C., cannot be sustained. Under Section 476, Criminal P. C., two things are necessary, namely, that the Court has to be satisfied that it appears that an offence referred to in Section 195 (1) (b) or (c), Criminal P. C., has been committed and that it is expedient in the interests of justice that an enquiry should be made.
In the present case the learned District Judge did not for himself decide whether a prima facie case had been made out for the prosecution of the appellant under Section 193, I. P. C., and whether it was expedient in the interests of justice that he should be prosecuted. All that he did was to act on the opinion expressed by his predecessor that the statement of accounts was in the handwriting of the appellant, and to say that if this finding was acted upon then it would necessarily follow that the statement of the appellant that the statement of accounts was not in his handwriting was false and that by denying the 'Pana' being in his own handwriting the appellant protracted the litigation and thus it was expedient in the interests of justice that he should be prosecuted.
This was altogether a wrong approach to the matter. The question whether it is expedient in the interests of justice that a person should or should not be prosecuted for giving false evidence does not depend on whether he protracted the litigation by his statements and pleadings. Again the conclusion of the learned District Judge delivering judgment in the civil suit that on the balance of probabilities the statement of accounts appeared to be in the handwriting of the appellant did not amount to a specific finding that the appellant's statement that it was not in his handwriting was a deliberate falsehood.
A prosecution for an offence under Section 193, I. P. C., should not be ordered lightly. It should be done only when there is a reasonable certainty of a conviction. Indiscriminate prosecutions under Section 193, I. P. C., resulting in failures are likely to defeat the very object of such prosecutions (see Pushkarrai v. Ramkrishna, 1952 Nag LJ Notes 53). The standard of proof required in cases of perjury has been indicated in Rambhau v. King-Emperor, 1942 Nag LJ 327, and Asgarali v. Emperor, AIR 1942 Nag 80. In the former case it was observed:
'Before a conviction for perjury can be sustained on the strength of one man's oath against another it must be shown either that that person is of such outstanding character that it is impossible to conceive of him telling a lie in circumstances with which the Court is dealing or that that person's word is so strongly corroborated that no reasonable Judge could do otherwise than believe him.
In AIR 1942 Nag 80, it was said that intention is an essential ingredient in the constitution of the offence of perjury and that no man can be convicted of giving false evidence except on proof of facts which if accepted as true show not merely that it is incredible but that it is impossible that the statement of the party accused made on oath can be true and that if the inference from the facts proved falls short of this, a conviction cannot stand.
The learned District Judge should have, therefore, seen whether having regard to this standard of proof required in cases of perjury there was prima facie evidence to order prosecution of the appellant. There is no such material in the present case.
6. For all these reasons, the order dated 25-3-1958 of the District Judge of Indore is set aside andthe direction given by him for the appellant's prosecution is quashed.