B.K. Patra, J.
1. This application in revision is directed against an appellate order of the Additional District Judge, Balasore upholding the order of the Subordinate Judge, Balasore dismissing an application under Section 476 Cr. P. C. filed by the petitioner to prosecute the opposite party for giving false evidence in T. S. No. 25 of 1962 in the Court of the Subordinate Judge.
2. The petitioner Parbatimon Mohapatra and her sister Haramoni Mohanty filed T. S. No. 25 of 1962 in the Court of the Subordinate Judge, Balasore against the opposite party Jagannath Dalai claiming partition of certain lands on the ground that they are the sisters of the opposite party. The latter contested the suit on the allegation that the plaintiffs therein are not his sisters but are the daughters of his uncle. The Subordinate Judge however accepted the case of the petitioner and her sister that they are the sisters of the opposite party and granted a decree on 19-11-1963.
3. On 22-3-1966, the petitioner filed an application under Sections 476 and 479-A Cr. P. C. before the Subordinate Judge praying that a complaint should be filed against the opposite party for intentionally giving false evidence in the suit. The petitioner also filed an application before the Subordinate Judge for calling for the original of a mortgage bond No. 13384 dated 8-11-1962 said to have been executed by the opposite party on the ground that in the mortgage bond the opposite party had stated that the petitioner and her sister Haramoni are the daughters and the opposite party is the son of one Dinabandhu Dalai and that consequently it would follow therefrom that the opposite party gave false evidence in Court in the original suit when he stated that the petitioner was not his sister. The Subordinate Judge refused to call for the mortgage bond observing that the petitioner, if so advised, might file a certified copy thereof. No certified copy of the mortgage bond appears to have been filed in the Court of the Subordinate Judge. Ultimately, the learned Judge rejected the petitioner's application under Section 476 Cr. P. C. holding that in view of the provisions of Section 479-A Cr. P. C. that application was not maintainable.
The petitioner then filed an appeal against that order before the District Judge, Balasore and at the time of hearing, the certified copy of the mortgage bond referred to above was filed before that Court. The learned District Judge did not place any reliance on the recitals in the certified copy on the ground that it had not been filed in the suit and he dismissed the appeal holding that Section 479-A Cr. P. C. is a bar inasmuch as the learned Subordinate Judge while disposing of the suit did not give any specific finding that the opposite party has given false evidence and for the purpose of eradication of the evils of perjury and fabrication of false evidence and that in the interest of justice, a complaint should be filed against him.
4. The only point for consideration in this revision application is whether Section 479-A Cr. P. C. is applicable to the facts of the present case in which case Sub-section (6) thereof would act as a definite bar to the maintainability of the present application under Section 476 Cr. P. C. Section 479-A Cr. P. C. in so far as is material may be quoted:--
'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 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 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.
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(6) No proceeding 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.'
5. It is contended by Mr. R.K. Patra appearing for the opposite party that having regard to the provisions of Section 479-A Cr. P. C. and particularly Sub-section (6) thereof, the provisions of Sub-section (1) of Section 479-A Cr. P. C. alone can be resorted to by the Court for the purpose of making a complaint against the person for intentionally giving false evidence at any stage of the judicial proceeding before it and if at the time of disposal of the said proceeding the Court had not formed an opinion that the witness has given intentionally false evidence, no question of making a subsequent complaint against him under Section 476 Cr. P. C. can arise in view of the specific prohibition contained in Sub-section (6) thereof.
He argues that in the present case the opposite party took the specific plea that it is not true that the petitioner is his sister. The evidence let in on behalf of the petitioner is that she is the sister of opposite party. The Court considered the evidence and accepted the petitioner's plea thereby disbelieving the statement made by the latter. Thus there were materials before the Subordinate Judge on the basis of which he could form an opinion that the opposite party had given false evidence. But if, despite this, the Court at the time of disposing of the suit did not form any such opinion much less did he consider that the nature of the perjury committed by the opposite party is such as to make it expedient in the interests of justice to make a complaint against him, the Court cannot having regard to Sub-section (6) of Section 479-A Cr. P. C. subsequently proceed against the opposite party under Section 476 Cr. P. C.
6. In a controversy of this nature, three types of cases can be envisaged. The first type would cover cases where all the materials on the basis of which the Court concerned could have formed an opinion that a particular witness has given false evidence before it, were before the Court at the time of disposing of that case, but the Court did not form an opinion that the witness had intentionally given false evidence and that it was expedient that he should be prosecuted. If later on, on the basis of very same materials, an application under Section 476 Cr. P. C. is filed to prosecute the witness, Sub-section (6) of Section 479-A Cr. P. C. would be a definite bar to a proceeding under Section 476 Cr. P. C. being initiated against the witness. Such cases, in my opinion, are covered by the decision of their Lordships of the Supreme Court in Shabir Hussain Bholu v. State of Maharashtra, AIR 1963 SC 816.
In that case, the appellant Shabir Hussain was a witness for the prosecution at the trial of one Rafique Ahmed for the offence of murder. Shabir Hussain when examined in the Court of the committing Magistrate deposed that in his presence Rafique Ahmed had stabbed the deceased. In the Court of Session he went back on his statement and said that it is not true that he actually saw Rafique Ahmed stabbing the deceased. Admittedly at the time of disposing of the case, the Sessions Judge did not record his opinion that the appellant had intentionally given false evidence and that he should be prosecuted. But after the trial was over, proceedings were taken against him under Section 476 Cr. P. C. and he was asked to show cause why he should not be prosecuted under Section 193 I.P.C. Objection was taken on behalf of the appellant before the Chief Presidency Magistrate that the provisions of Section 479-A having not been complied with the Chief Presidency Magistrate could not take cognizance of the offence. This objection was upheld by the Chief Presidency Magistrate, but in revision, the High Court rejected it.
On appeal before the Supreme Court, their Lordships held that-
'Bearing in mind the non obstante clause at the commencement of Section 479-A and the provisions of Sub-section (6) it would follow that only the provisions of Sub-section (1) of Section 479-A must be resorted to by the Court for the purpose of making a complaint against a person for intentionally giving false evidence or for intentionally fabricating false evidence at any stage of the proceeding before it. x x x x x . It is not as if the Court has an option to proceed either under Section 479-A or under Section 476 and that if it does not take action under Section 479-A it can do so under Section 476. Whereas Section 476 is a 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 provisions of Section 476 to Section 479 are totally excluded where an offence is of the kind specified in Section 479-A(1).'
It may be noticed that in that case, the very materials on the basis of which Shabir Hussain was sought to be prosecuted subsequently were before the Court which disposed of the case in which he is alleged to have given false evidence. Their Lordships while disposing of Shabir Hussain's case, AIR 1963 SC 816 approved a decision of the Allahabad High Court in Jai Bir Singh v. Malkhan Singh, AIR 1958 All 364.
In that case, one Malkhan Singh was prosecuted under Section 382 I.P.C. and Jai Bir Singh was examined in that case as a prosecution witness. In cross-examination, he was asked to state whether or not he had been convicted under the Martial Law and sentenced to imprisonment for 18 months and lodged in Agra Central Jail. Jai Bir Singh denied that he was over convicted or confined in Agra Jail. Malkhan Singh was acquitted. Thereafter he moved under Section 476 Cr. P. C. requesting the Court to make a preliminary enquiry and file a complaint for the prosecution of Jai Bir Singh. Evidence was let in in that proceeding to prove that Jai Bir Singh was convicted and confined in Agra Central Jail. The Magistrate did not file a complaint but dismissed the application under Section 476 Cr. P. C. on the ground that Section 479-A (6) Cr. P. C. was a bar. Malkhan Singh filed an appeal and the Sessions Judge allowed the appeal but the High Court in revision set aside that order inter alia with the observation:--
'The provisions of Section 479-A Cr. P. C. will apply to all cases of perjury. There is no justification for holding that this section applies to one class of perjury and not to the other. The section itself does not express any such distinction. Ordinarily when a section deals with a class, it would be deemed to apply to the whole of that class and not only to a part or division of that class unless there is something in that section or some other section from which it is gathered that it applies to a sub-division of that class alone.
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The effect of Section 479-A is that for the prosecution of a person who appears as a witness and gives false evidence or fabricates false evidence the provisions of that section alone will apply and the provisions of Sections 476 to 479 inclusive will not apply.'
In that case also, all the materials on the basis of which Jai Bir Singh was sought to be prosecuted were before the original Court which disposed of the case against Malkhan Singh and no new materials were sought to be placed before the learned Magistrate in support of the application under Section 476 Cr. P. C. Mr. R.K. Patra however has invited my attention to the observation of the learned Judge of the Allahabad High Court extracted above and contended that this observation which must be deemed to have been approved by their Lordships of the Supreme Court in Shabir Hussain's case. AIR 1963 SC 816 lays down that if it is a case of penury committed in the course of a judicial proceeding, Section 479-A (1) Cr. P. C. alone can apply and the provisions of Section 476 Cr. P. C. would not, irrespective of the consideration whether or not the prosecution is sought to be sustained on the basis of the materials which were before the original Court or on the basis of materials freshly brought to light in the subsequent proceeding.
An effective answer to this contention is contained in the decision of their Lordships of the Supreme Court in Kuppa Goundan v. M.S.P. Rajesh, AIR 1966 SC 1863. In that case, one Kuppuswami lodged a complaint alleging that the respondent M.S.P. Rajesh and others had formed an unlawful assembly and committed offences of house trespass, mischief etc. at 10 P.M. on October 11, 1963. The police after investigation did not present a charge-sheet against respondent M.S.P. Rajesh but filed a charge-sheet against four other persons in the Court of the Sub-Magistrate, Salem, who ultimately acquitted all the accused. In course of evidence at that trial the petitioner Kuppu Swami Goundan was examined as a witness and he gave evidence to the effect that respondent Rajesh was also among the trespassers and assailants and that he was armed with a gun.
After the conclusion of the trial, the respondent filed a petition in the Court of the Magistrate under Section 476(1), Cr. P. C. alleging that on October 11, 1963, he along with certain other Directors had attended a meeting of the Board of Directors of a certain company from 4-30 P.M. to 5-15 P.M. at Bangalore and that he was not at Yarcaud (place of occurrence) on October 11, 1963, and prayed for the prosecution of the petitioners for giving false evidence under Section 193 I.P.C. The respondent produced a copy of the Draft Minutes of the Board meeting and also cited certain witnesses in support of his case. After considering the matter, the Sub-Magistrate of Salem held that he was satisfied that the respondent could not have been present at the alleged place of occurrence Yarcaud on October 11, 1963 and that the petitioner had deliberately committed perjury and implicated Rajesh as among the assailants, and directed prosecution of the petitioner under Section 193 I.P.C. The petitioner contended that Section 479-A was a bar to the prosecution being taken against him. Following the decision in Shabir Hussain's case, AIR 1963 SC 816 the Magistrate upheld the objection.
But in revision, the Madras High Court reversed the order of the Magistrate and against that order an appeal was filed in the Supreme Court. Their Lordships in dismissing the appeal observed in paragraph 5 of their Judgments
'The scheme of Section 479-A is to enact a special procedure for the more expeditious and effective manner of dealing with certain cases of perjury and fabrication of false evidence by witnesses in the course of judicial proceedings. There is, however a necessary condition for the application of Section 479-A, Cr. P. C. The condition is that the Court before it delivers its judgment or at any rate at the time of delivering the judgment must form an opinion that a particular witness or witnesses, is, or, are giving false evidence; if the Court could not form any opinion about the falsity of the evidence of the witness appearing before it, then certainly the Court cannot at the time of delivering its judgment, record any finding about the same. It is manifest that a Court can come to a conclusion that a witness is false only when there are materials placed before it to justify that opinion. If no materials are placed before the Court to enable the Court to form an opinion that a witness is giving false evidence, then certainly it could not form that opinion. In the present case, the respondent produced material before the trial Court on December 23, 1963, after the conclusion of the trial that the petitioners had given false evidence in the case and the respondent produced the necessary documents along with an application for proceeding against the petitioners under Section 476 Cr. P. C. Till those documents were produced there was no opportunity or occasion for the Magistrate to form an opinion about the falsity of the evidence adduced by the petitioners. It is, therefore, manifest that at the time when the judgment was delivered, the Magistrate had no material before him to form an opinion that the petitioners had given false evidence. It is only after the respondent had made his application on December 23, 1963 and brought the necessary material to the notice of the Court that the falsity of the evidence of the petitioners became apparent and the Magistrate was in a position to form an opinion about the falsity of the evidence given by the petitioners. It is, therefore, clear that Section 479-A will not be applicable on the facts of this case, and if the provisions of Section 479-A will not apply on the facts of this case it follows that the bar contemplated by Clause (6) of that section will not be applicable.
This decision would, therefore, cover the second type of cases where no materials were available before the Court which decided the original case to enable it to form an opinion that a particular witness had given false evidence before it and such materials were only later on brought to the notice of the Court for a proceeding under Section 476 Cr. P. C. It may also be noticed that their Lordships deciding the case in AIR 1966 SC 1863 referred to above have disapproved the view of Sahai, J. in Jai Bir Singh's case, AIR 1958 All 364 that the bar of Section 479-A (6) applies to all cases of perjury, namely, (1) those where the perjury or the fabrication of false evidence has been detected by the Court when the judgment is pronounced, and (2) cases where the periury or fabrication of false evidence does not come to light till after the judgment has been pronounced, and that it was not open to the Court to proceed under Section 476 Cr. P. C. for prosecution in the latter class of cases.
7. The difficulty, however, arises in the third type of cases where before the Judge deciding the original case there might be some materials but not in any way clinching or decisive to indicate that a particular witness has given false evidence and the Judge at the time of disposing of the case has not expressed any opinion that the witness has given false evidence and that he should be prosecuted, but later on material is placed before him from which it would be manifest that the witness has given false evidence and he is asked to take proceedings against the witness under Section 476 Cr. P. C.
The question that arises for consideration is whether in such type of cases, Section 479-A (6) would be a bar. It is stated on behalf of the opposite party that the present case falls in this category because apart from the mortgage bond on which the petitioner relies there were other materials on record in the original suit No. 25 of 1962 on the basis of which the Court could have formed an opinion that the opposite party Jagannath Dalai had given false evidence but the Court did not form any such opinion. The records of the original suit are not before me and it is therefore not possible to test the correctness of the contention raised on behalf of the opposite party that had the petitioner been diligent she could have filed the mortgage bond in the original suit itself and that the present application presented three years after the disposal of the original suit is not bona fide and is meant only to harass the opposite party. Both the Courts below have proceeded on the footing that Section 479-A Cr. P. C. applies to the facts of the present case and that the Subordinate Judge disposing' of Original Suit No. 25 of 1962 having failed to express his opinion that the opposite party has given false evidence and that for the purpose of eradication of perjury and in the interest of justice a complaint should be filed, the present proceeding under Section 476 Cr. P. C. is not maintainable.
Neither of them has applied his mind to the further question whether there were materials before the Subordinate Judge who decided the original suit on the basis of which he could form the necessary opinion. Unless the Courts are satisfied that such materials were available and despite that the Court did not express the opinion and did not consider it expedient to prosecute the opposite party, the bar in Sub-clause (6) of Section 479-A Cr. P. C. would not come into operation and in that event an application under Section 476 Cr. P. C. would be maintainable.
This case must therefore be remitted back to the learned Subordinate Judge for disposal according to law. In the light of the observations made above he should first determine with reference to the materials which were on record in the original suit whether the Court which decided the suit could on the basis of those materials form an opinion that the opposite party had given false evidence. If the answer to this question is in the affirmative, then necessarily the bar in Sub-section (6) of Section 479-A Cr. P. C. would apply and a further application under Section 476 Cr. P. C. would not be maintainable. If, however, the answer is in the negative Section 476 Cr. P. C. would come into operation. But Section 476 Cr. P. C. itself requires that the Court in considering the application should not only be prima facie satisfied that false evidence had been given by the opposite party but also that it is expedient in the interest of justice that he should be prosecuted. It is here that the learned Judge would also take into consideration the complaint made by the opposite party that the application under Section 476 Cr. P. C. was presented after a long delay of three years since the disposal of the suit and that it is not bona fide but is meant to harass him.
8. In the result, I would allow this application, set aside the orders passed by the Courts below, and remand the case back to the Subordinate Judge for disposal according to law and in the light of the observations made above.