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Bamdeb Misra Vs. Laxmi Malla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 4 of 1962
Judge
Reported inAIR1963Ori179; 1963CriLJ526
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 476 and 479A; Indian Penal Code (IPC) - Sections 193
AppellantBamdeb Misra
RespondentLaxmi Malla
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
DispositionRevision allowed
Cases ReferredState of Bombay v. Kathi Kalu Oghad
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - here the learned appellate court has clearly gone wrong. but when a responsible official of the municipality like the opposite party (amin) swora a counter affidavit to the effect that those facts did not exist, it is obviou's that he was making some statements which have a direct bearing on the question before the court as to whether an injunction should issue or not......aside the order of the munsif of puri directing the filing of complaint for the prosecution of the opposite party for an offence under section 193, i. p. c.2. the petitioner who is a resident of puri town filed a civil suit (0. s. no. 1 of 1958.) in the court of the munsif of puri against the executive officer of puri municipality and others. in* the course of that suit the defendants namely puri municipality filed a petition on the 30th august i960 praying for the issue of an injunction against the petitioner. the petitioner filed a rejoinder to that petition ex. a dated 31-8-1960) alleging certain facts for the purpose of showing that injunction should not be issued. then as directed by the court by its order dated 1st september, 1960, he filed an affidavit on the 2nd september 1960.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This is a revision against the appellate order of the Sessions Judge of Puri, under Section 476-B, Criminal Procedure Code, setting aside the order of the Munsif of Puri directing the filing of complaint for the prosecution of the opposite party for an offence under Section 193, I. P. C.

2. The petitioner who is a resident of Puri Town filed a Civil Suit (0. S. No. 1 of 1958.) in the Court of the Munsif of Puri against the Executive Officer of Puri Municipality and others. In* the course of that suit the defendants namely Puri Municipality filed a petition on the 30th August I960 praying for the issue of an injunction against the petitioner. The petitioner filed a rejoinder to that petition Ex. A dated 31-8-1960) alleging certain facts for the purpose of showing that injunction should not be issued. Then as directed by the Court by its order dated 1st September, 1960, he filed an affidavit on the 2nd September 1960 and gave a copy of the same to the defendant on the 3rd September 196O. In that affidavit he swore to the existence cf the following facts in respect of the lands in dispute in that litigation (See Ext. 5) :

(i) There was a gate of bamboo on the south-east corner of the disputed land.

(ii) There was a wall of arranged bricks of certain specified dimensions from the said gate to the south-west corner, So the north-west and on the western side of that wall, and again-from the north-west corner to the north-east corner.

(iii) There were three posts inside the disputed land for tying up cattle.

(iv) There was a heap of hay (kuta gada) for feeding cows.

(v) There were ten creepers of Janhi vegetable and pumpkin on the disputed land, which after having grown on that land had climbed up to the roof of his house and they were bearing fruits.

(vi) There was a big begurrfa tree on the western-side of the land from the south western corner.

These details were given, in the affidavit, mainly with a view to show that injunction should not issue against the petitioner because he was in actual possession and enjoyment of the disputed land which was part and parcel of his homestead, as alleged in the rejoinder (Ext. 4).

3. To the aforesaid affidavit the opposite party who t's a person working in the office of Pu'ri Municipality filed a counter affidavit on the 6th September 1960 in which almost everyone of the aforesaid allegations of fact were categorically denied (see Ext. 6). For instance the allegation In respect of the following were denied :

(i) The existence of a bamboo gate on the south-estern corner of the plot.

(ii) The existence of a wall of arranged bricks all round the disputed plot.

(iii) The existence of three posts inside the plot for tying up cattle.

(iv) The existence of paddy hay for cows.

(v) The existence of ten creepers of Janhi and pumpkin bearing fruits.

4. In view of the sharp contradictions in the affidavits of the two parties as regards the existence of certain facts, the learned Munsif had no alternative but to depute a Pleader Commissioner to visit the spot, inspect the same carefully and submit a report as to which of the two affidavits contained true statements of fact. The Report of the pleader Commissioner dated 12th September 1960 (Ext. 1a) substantially supported the statements made by the petitioner in Ext 5. He thus noticed an arranged brick wall (without the bricks being bound together with morter) on three sides of the disputed land, on the north, sduth and west. The measurements made by him also corresponded with the dimen- sions given by the petitioner. He also found a gate fixed on the south east corner, made of pieces of bamboo and split bamboo tied with rope. He found two small wooden posts and one bamboo post fixed on the eastern side of the disputed land. He found three budding Janhi plants and a budding pumpkin plant which had climbed up to the thatch of the house lying adjacent each of the disputed land. He also found a paddy heap on the northern side of the disputed land.

5. In view of the report of the Pleader Commissioner the learned Munsif started a proceeding under Section 4/b, Cr. P. C. against the opposite party and after taking some evidence and hearing the parties he directed the fiiing of a complaint for the prosecution of the opposite party under Section 193, I. P. C. for having sworn a false affidavit.

6. The learned lower Appellate. Court thought that Section 476, Cr. P. C. was not applicable and that the learned Munsif ought to have proceeded under Section 479-A, Cr. P. C. Here the learned Appellate Court has clearly gone wrong. Section 479-A, Cr. P. C. by its own terms applies only when any person 'appearing before a Court' as a witness intentionally gives false evidence in any stage of the judicial proceeding or intentionally fabricates false evidence for the purpose of being used in any stage of the judicial proceeding. The words 'appear before a Court' occurring in that section should be given full significance. Unless the person actually appears before the Court as a witness Section 479-A, Cr. P. C. cannot apply -- See State v. Ugam Singh, AIR1961 Raj 268 and Kalipada Maity v. Sukumar Bose, AIR1962 Cal 639.

The learned lower Appellate Court thought that by filing a false affidavit also a person becomes a witness in a judicial proceeding as filing of affidavits is permitted by Order 19, of the Civil Procedure Code. But a distinction should be made between 'being a witness' on the one hand,, and 'appearing as a witness' on the other. In this connection it will be useful to refer to the judgment of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, regarding the construction of the expression 'to be a witness' occurring in Clause (3) of Article 20 of the Constitution.

There, their Lordships, by a majority, over-ruled their earlier view and held, that the expression 'to be a witness' is not equivalent to 'furnishing evidence' in its widest significance and that the expression should be construed as referring not only to the giving of oral testimony in Court but also to the giving of testimony in writing. Hence the filing of an affidavit may suffice to show that the person who filed it is also a witness. But Section 479-A requires that the person filing such an affidavit must 'appear as a witness'. Hence the aforesaid Supreme Court decision cannot very much help Mr. Misra appearing for the opposite Party. The Trial Court was, therefore, justified in taking action under Section 476, Cr. P. C.

7. Mr. Misra for the opposite party then contended that, on merits, this was not a fit case for filing a complaint for the prosecution of the opposite party, but I am not inclined to accept this contention. The limited question for consideration at this stage is whether there is a 'prima facie' case for prosecuting the opposite party under Section 193, I. P. C. and whether the ends of justice require that such prosecution should be launched. Here, it should be noticed that the opposite party is not an ordinary private individual but the Amin of Puri Municipality. It was the Municipality that asked for an injunction against the petitioner in respect of the disputed land and the petitioner opposed it on the main ground that the disputed land was part of his house, that he used to tie his cows there, that he grew green vegetables, that it was enclosed with a wall of arranged bricks and that it was provided with a gate of bamboos.

These facts, if true, would have sufficed to support his petition against the grant of injunction. But when a responsible official of the Municipality like the opposite party (Amin) swora a counter affidavit to the effect that those facts did not exist, it is obviou's that he was making some statements which have a direct bearing on the question before the Court as to whether an injunction should issue or not. It was only after the deputation of the Pleader Commissioner to make a local inspection that the Court be-came aware of the true facts existing at the spot. Affidavits filed by public servants of local authorities are generally given great weight and if, on verification they are found to contain 'prima facie' untrue statements of fact on matters which are very relevant before the Court concerned, it is I think desirable in the ends of justice that prosecution should be launched against such servants.

8. I would therefore allow this revision, set aside the order of the lower Appellate Court and restore the order of the Trial Court directing the filing of a complaint for the prosecution of the opposite party for an offence under Section 193, Penal Code. Every effort should be made to expedite the disposal of the case.


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