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Dhansingh Khadaksingh Raghubansi Vs. Ramsaran Dariyao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 641 of 1959
Judge
Reported inAIR1961MP305; 1961CriLJ646
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 476 and 479A
AppellantDhansingh Khadaksingh Raghubansi
RespondentRamsaran Dariyao
Appellant AdvocateA.D. Deoras, Adv.
Respondent AdvocateP.R. Padhye, Adv.
Cases ReferredQueen v. Aidrus Sahib
Excerpt:
.....tendered by him in evidence is not relevant or material to the matter in issue in a judicial proceeding and the court has not thought it fit to express any opinion thereon, then clearly it would not be expedient in the interests of justice that the person making such a statement or tendering the document should be prosecuted for giving false evidence or for fabricating false evidence. and in deciding whether or not it was intentional, the jury would have to consider whether or not the subject-matter of the statement were material to the result of the proceeding, inasmuch as if that subject-matter were wholly immaterial, they might well attribute the statement to indifference or carelessness on the part of the prisoner......of section 476 of the code of criminal procedure to a witness who is stated to have given false evidence in a judicial proceeding and against whom no proceedings under section 479-a of the code were taken.2. the matter arises thus. the opponent ramsaran while giving evidence on behalf of the plaintiffs in a suit denied his relationship with two of the plaintiffs. after the disposal of the suit the petitioner dhansingh, who was one of the defendants, presented an application under section 476 for a complaint being filed against ramsaran in respect of an offence under section 193 i. p. c. alleging that the statements made by ramsaran denying his relationship with the plaintiffs were false.no action of any kind under section 479-a had been taken against ramsaran at the time of the.....
Judgment:

Dixit, C.J.

1. In this reference by a Single Judge the question raised is as to the applicability of Section 476 of the Code of Criminal Procedure to a witness who is stated to have given false evidence in a judicial proceeding and against whom no proceedings under Section 479-A of the Code were taken.

2. The matter arises thus. The opponent Ramsaran while giving evidence on behalf of the plaintiffs in a suit denied his relationship with two of the plaintiffs. After the disposal of the suit the petitioner Dhansingh, who was one of the defendants, presented an application under Section 476 for a complaint being filed against Ramsaran in respect of an offence under Section 193 I. P. C. alleging that the statements made by Ramsaran denying his relationship with the plaintiffs were false.

No action of any kind under Section 479-A had been taken against Ramsaran at the time of the delivery of the judgment in the suit. The trial Judge rejected the application as in his opinion it was not expedient in the interests of justice to prosecute Ramsaran. Dhansingh then preferred an appeal before the 1st Additional District Judge, Chhindwara, who rejected the appeal holding on the authority of Mannalal Sardarmal v. Ramkishan Jodhraj, 1959 MPLJ 579 : (AIR 1959 MP 264) that no prosecution of a witness for giving false evidence in judicial proceedings could be started under Section 476 of the Code after the disposal of the suit.

Dhansingh then preferred this revision petition. When the matter first came up for hearing before a Single Judge, it was urged that the viewtaken in AIR 1959 MP 264 (supra) required reconsideration and that the Allahabad High Court had taken a Contrary view in Durga Prasad v. State of U. P., AIR 1959 AH 744. In view of the importance of the question which is of frequent occurrence the learned Single Judge has referred it to this Bench for decision.

The question at issue is whether prosecution against Ramsaran who is alleged to have given false evidence can be started now under Section 476 when no action under Section 479-A was taken against him at the time of the delivery of the judgment in the suit. In other words, it is whether prosecution of a witness who has given false evidence in a judicial proceeding can be initiated only under Section 479-A. Section 476 prescribes the procedure to be followed in the case of complaints by Courts in respect of an offence under Section 193 I. P. C., and other offences referred to in Clauses (b) and (e) of Section 195 (1) of the Code of Criminal Procedure.

Under that provision, a Civil, Revenue or Criminal Court can proceed suo motu or on an application by anyone, if it thinks it expedient in the interests of justice that an enquiry should be made into any offence referred to in Section 195 (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court. This covers the offence by a witness of giving false evidence in a judicial proceeding or fabricating false evidence in regard to such proceeding (Section 193 I. P. C.). Section 479-A was inserted in the Code by the Amendment Act No. XXVI of 1955. The material provisions here are the substantive part of Sub-section (1) and Sub-section (6) which run as follows:-

'479-A (1) Notwithstanding anything contained in Sections 476 to 479 inclusive, when any Civil, Revenue or 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 evil's 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 fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate:

* * * * *(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.'

3. On comparison it will be seen that Sections 476 and 479-A differ both in the content of their scope and in the procedure they prescribe. Leaving aside the procedural differences on which nothing turns here, the main distinction between the two sections is that whereas Section 476 is concerned with all the offences referred to in Clauses (b) and (c) of Section 195 (1) when committed by any person in or in relation to a proceeding in the Court, Section 479-A is confined to the launching of the prosecution against a witness 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.

Section 479-A thus prescribes a special procedure in regard to a witness who has given false evidence in a judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in such proceedings. The object of the provision is, as the expression 'for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice' itself shows is to deal with the evil of perjury in a summary way.

4. Now the opening words of Section 479-A 'Notwithstanding anything contained in Sections 476 to 479 inclusive' unmistakably show that in regard to the case of prosecution of a witness who has given false evidence or fabricated false evidence in a judicial proceeding the provisions of Sections 476 to 479 must give way to the provisions of Section 479-A. This follows from the well-established construction of the expression 'notwithstanding anything contained in ....' (See Budhan Choudhary v. State of Bihar, (S) AIR 1955 SC 191 at p. 194 Col. 1).

The non-obstante clause in Section 479-A itself makes it clear that so far as the prosecution of a witness who has intentionally given false evidence in a judicial proceeding or has intentionally fabricated false, evidence for the purpose of being used in such proceeding is concerned, the procedure laid down in Section 479-A is not alternative to the one in Sections 476 to 479 but is overriding. The result it that prosecution against such a witness can be started only under Section 479-A and not under Section 476.

The matter is placed beyond doubt by Sub-section (6) which expressly says that no proceedings shall be taken under Sections 476 to 479 against such a witness if in respect of him proceedings may be taken under Section 479-A. The use of the word 'may' in this sub-section does not mean that it gives any option in the matter of initiating prosecution under Section 479-A or 476. In connection with this sub-section the question to consider is not of the construction of the word 'may' only but of the expression 'proceedings may be taken under this section'.

This expression clearly implies action as well as inaction and means 'that proceedings may be taken or not taken under this section' i. e., Section 479-A. So construed Sub-section (6) clearly means that no proceedings shall be taken under Sections 476 to 479 for the prosecution of a witness mentioned in Sub-section (1) whether in respect of such a person proceedings under Section 479-A have or have not been taken. Therefore, the effect of the non obstante clause in Section 479-A (1) and afortiori of that clause read with Sub-section (6) is to make Section 476 inapplicable to the case of a witness who has intentionally given false evidence in a judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in those proceedings.

5. This is the view which has been taken id AIR 1959 MP 264 (supra). In that Case it has been held that under Section 479-A of the Code of Criminal Procedure, if the 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 and that no prosecution can be started at any later stage, and further that Sub-section (6) 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.

It was observed that the expression 'may be taken' in Sub-section (6) did not mean discretionary proceedings but meant proceedings which could be taken. In Mannalal's Case, AIR 1959 MP 264 (supra) reference was made to some observations of the Allahabad High Court in Jai Bir Singh v. Malkhan Singh, AIR 1958 All 364 suggesting that Section 479-A had repealed by implication sections 476 to 479 so far as the matter dealt with by Section 479-A were concerned. In regard to those observations it was pointed out in Mannalal's Case, AIR 1959 MP 264 that 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 in a judicial proceeding, Section 479-A engrafts an exception to Section 476 of the Code of Criminal Procedure.

In other respects the decision in AIR 1958 All 364 (supra) is in accord with the view taken in Mannalal's Case AIR 1959 MP 264 (supra). That view finds support also in the decision of the Punjab High Court in Parshotam Lal v. Madan Lal, AIR 1959 Punj 145. A similar view has been taken in In re, S. Abdul Jabbar, AIR 1958 Andh Pra 469, In re, Muniamma, AIR 1959 Andh Pra 330, Naraiappa v. Chikkaramiah, AIR 1959 Mys 117 and Rangayya v. Ramaiah, AIR 1960 Andh Pra 233. In Bhagwandass v. The State, Cri Revn. No. 545 of 1957, D/- 18-9-1958 (A. P.) Chaturvedi, J., also held that prosecution against a witness who has given false or fabricated evidence in a judicial proceeding can be only under Section 479-A and not under Sections 476 to 479.

6. The decision in AIR 1959 All 744 is no doubt to the contrary. The view expressed in that case is that Section 479-A has not impliedly repealed Section 476 in respect of all cases of witnesses giving or fabricating false evidence in judicial proceedings and that Section 476 will apply to witnesses whose cases cannot be brought under Section 479-A for one reason or another; that Section 479-A was enacted to give additional power to the Court authorizing it to deal speedily with the more flagrant or serious cases of intentionally giving false evidence or intentionally fabricating evidence in judicial proceedings as is clear from the fact that under Section 479-A the Court can act only if it is of opinion that not merely it is expedient in the interests of justice to launch such a prosecution, but that it is necessary to do so inorder to eradicate the evils of perjury or fabrication of false evidence; and that the less serious types of offences which do not fall under Section 478-A cannot, however, be allowed to go unpunished and must be dealt with under Section 476. The conditions essential for the applicability of Section 479-A to witnesses were enumerated by the learned Judges of the Allahabad High Court in paragraph 14, of their Judgment thus:-

'(a) who intentionally gave or fabricated false evidence,

(b) who did that in any stage of a judicial proceeding or for the purpose of being used at any stage of such proceeding,

(c) about whom a finding about their commiting such an offence has been recorded,

(d) about whom such a finding had been recorded either at the time of delivering judgment in the proceeding or the final order disposing of the proceeding, and

(e) about whom the Court is of opinion not only that the prosecution of the witness was necessary in the interests of justice but also that the offence was of such a nature that it was necessary to prosecute the witness for the eradication of the evils of perjury and fabrication of false evidence.' It was recognized by the learned Judges that if the case was covered by Section 479-A, then it had to be dealt with under that section and not any other section.

7. Shri Deoras, learned counsel appearing for the petitioner Dhanshing, while not commending to us for acceptance the view taken in AIR 1959 All 744 (supra) in its entirety, was disposed to argue on its basis that Section 479-A would apply only to those cases of perjury where the falsity of the statement is detected before the delivery of the judgment and that it would not cover cases where perjury comes to light after the judgment is pronounced.

It was said that Sub-section (6) only meant that so long as proceedings could be taken under Section 479-A, Sections 476 to 479 could not be asserted to; and that as after the delivery of the judgment or final order disposing of a case no proceedings could obviously be taken under Section 479-A, therefore, there was no bar to proceedings being initiated under Section 476 after the delivery of judgment or final order.

8. We do not find ourselves in agreement with the reasoning of the learned Judges of the Allahabad High Court and with the conclusion they have reached about the applicability of Section 476 to a witness who has intentionally given false evidence or has intentionally fabricated false evidence for the purpose of being used in a judicial proceeding. The argument put forward by the learned counsel for the petitioner cannot, therefore, be accepted. The first and most elementary rule of construction is that where by the use of clear and unequivocal language capable of only one meaning anything is enacted by the Legislature, it must be enforced even though it be absurd or mischievous. This has been stated in Maxwell on Interpretation of Statutes, 10th edition, pages 4 and 5 thus:-

'The rule of construction is 'to intend the Legislature to have meant what they have actuallyexpressed'. It matters not, in such a case, what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. The words cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words.'

It is in the light of this principle of construction that Section 479-A has to be construed. Now the wording of the provision in Section 479-A, namely, 'when any Civil, Revenue or 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' is plain enough.

On a plain and sensible construction of that provision it is clear that Section 479-A would apply to any witness who has intentionally given false evidence or has intentionally fabricated false evidence in a judicial proceeding. There is nothing in the provision even to suggest any doubt as regards any qualification about the kind of witnesses or about the kind of statements made by a witness which are said to be false or about the degree of vcniality or heinousness attached to the perjury.

If on a plain reading of Section 479-A its scope is wide enough to cover every kind of witness who has intentionally given false evidence or fabricated false evidence in a judicial proceeding and every type of statement made by such a witness, then there Can be no justification for limiting the scope of Section 479-A to offences of perjury of a serious type on considerations which weighed with the learned Judges of the Allahabad High Court deciding the case of Durga Prasad, AIR 1959 All 744 (supra). In support of their conclusion that Section 479-A was enacted to give additional power to the Court to deal speedily with the more flagrant or serious cases of intentionally giving false evidence or intentionally fabricating evidence in judicial proceedings the learned Judges observed:-

'It was felt that the witnesses appearing in such proceedings may be of different kinds, and the evidence which they gave may be of varying importance. In respect of some statements made or documents produced it may be necessary for the proper disposal of the proceedings to consider in the proceeding itself whether the statement is true or whether the document is a fabricated one.

In respect of other statements or documents it may not be so necessary to do that. For instance,a statement may be made which may not be relevant or material to the matter in issue. Documents may be filed which it may not be necessary even to refer to for properly deciding the case. Statements may be made Or documents may be filed which it may be open to the opposite party to contradict in the very proceedings. In such a case material will be available for the Court for deciding in the proceeding itself whether the statement is false or the document is fabricated.

In other cases it may not be open under the law to the opposite party to contradict the statement or rebut the documents filed in that very proceeding. Thus if a question is put in cross-examination for the purpose of challenging the credit of a witness no evidence can be led under the provisions of the Evidence Act for Contradicting the witness in those very proceedings. If the witness perjures himself on the point he can only be subsequently prosecuted for perjury.

Similarly if a forged or fabricated document is filed and it is not found to be material or relevant to the questions in issue the question whether it is a false or fabricated document cannot be considered in the proceedings itself and can be considered only in separate proceedings when the relevant material is put up before the Court. It was thought that at least for the more serious type of the offences when the court arrived at a definite finding in the proceeding itself that action was necessary it should be empowered to take immediate action.'

9. With all due deference to the learned Judges of the Allahabad High Court, in our opinion in the contingencies contemplated by them the prosecution of a witness would not ordinarily be initiated even under Section 476 of the Code of Criminal Procedure. If a statement made by a witness or document tendered by him in evidence is not relevant or material to the matter in issue in a judicial proceeding and the Court has not thought it fit to express any opinion thereon, then clearly it would not be expedient in the interests of justice that the person making such a statement or tendering the document should be prosecuted for giving false evidence or for fabricating false evidence.

Section 479-A speaks of a witness who has intentionally given false evidence or has intentionally fabricated false evidence. For the offence of giving false evidence or fabricating false evidence knowledge and belief by a party in the falsity of the statement or the document is essential and this involves the question of intention. The question of intention further raises the question of materiality, for though materiality may not be essential to the offence, it must be taken into consideration in arriving at the intention with which the false statement was made. In the Queen v. Aidrus Sahib, 1 Mad HC 38 Scotland, C. J., said:

'For the giving false evidence, to come within Section 193, must be an intentional giving; and in deciding whether or not it was intentional, the jury would have to consider whether or not the subject-matter of the statement were material to the result of the proceeding, inasmuch as if that subject-matter were wholly immaterial, they might well attribute the statement to indifference or carelessness on the part of the prisoner.'

In construing Section 479-A in the way they did, the learned Judges of the Allahabad High Court attached considerable importance to the fact that under Section 479-A the Court has to give a finding at the time of the delivery of judgment or final order and the Court must also form the opinion that the prosecution of the witness concerned is necessary for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice.

Now it seems to Us that the question of the scope of Section 479-A is to be determined from the provision 'when any Civil, Revenue or 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 not from what the Court is required to do after forming the opinion just indicated above.

The applicability of Section 479-A depends solely on the consideration, namely, whether the person intended to be proceeded against intentionally gave false evidence or intentionally fabricated false evidence as a witness in a judicial proceeding. It does not depend on whether the Court has or has not followed the procedure laid down in Section 479-A in initiating the prosecution or whether the prosecution was or was not ordered 'for the eradication of the evils of perjury and fabrication of false evidence'.

Indeed, every prosecution for perjury is for the purpose of eradication of the evils of perjury and not for the satisfaction of a private party. The element of eradication of the evil of perjury is always present when the Court decides whether the prosecution would or would not be in the interests of justice. The Allahabad High Court's decision in AIR 1959 All 744 (supra) does not also give due weight and effect to the non obstante clause in Section 479-A (1) and to Sub-section (6).

10. The construction sought to be put by the learned counsel for the petitioner to Sub-section (6) is not borne out by the language of that sub-section. If the Legislature had intended that the omission to take any proceeding against a witness under Section 479-A would not operate as a bar to his being proceeded against under Section 476, then the sub-section would have used appropriate language to that effect. As already pointed out, that subsection means that no proceedings under Sections 476 to 479 shall be taken for the prosecution of a person for giving or fabricating false evidence, whether in regard to him proceedings under Section 479-A have or have not been taken.

It may be that on this construction the case of a perjury coming to light after the delivery of judgment may go unpunished but because of this omission the words of Section 479-A defining its scope cannot be construed contrary to their plain meaning. It must be noted that the object of Section 479-A is not only to eradicate the evil of perjury and to deal in a summary way with a witness giving false evidence or fabricating false evidence, but it is also to protect a witness from harassment against frivolous prosecutions for perjury. This is far from sayingthat Section 479-A has liberalized the law in favour of persons intentionally giving false evidence or fabricating false evidence.

11. For all these reasons we are of the opinion that the prosecution against a witness who 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 the judicial proceeding can only be under Section 479-A and not under Section 476 and that for the applicability of Section 479-A to such a witness it makes no difference whether the alleged false statement or fabricated false evidence was or was not found to be material by the Court and whether the falsity of evidence was detected before or after the delivery of judgment or final order in the judicial proceeding. The reference is answered accordingly.


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