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State of Orissa Vs. Jagannath Boral and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1962CriLJ179
AppellantState of Orissa
RespondentJagannath Boral and anr.
Cases ReferredKasi Thevar v. Chinniah Konar
Excerpt:
.....(2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - and since he had failed to do so, a subsequent proceeding under section 476 cr. clearly, therefore, giving or fabricating false evidence comes within the scope of both sections 476(1) and 479a(1) of the criminal procedure code and to some extent these two sections overlap each other......the present respondent jagannath baral and golokh baral under section 193 i.p.c., as they gave false evidence by denying the suggestion that dukhishyam is the brother of golok in the previous criminal case. after necessary inquiry shri p.c. patnaik, magistrate (p.w. 2) filed a complaint (ex. 8) before the sub-divisional magistrate, puri on 22.2.60.the case ultimately came up for hearing before sri r.n. dhal samanta, magistrate, first class, puri, who, though held that the accused person did not (?) really make false statements in the previous criminal case, passed an order of acquittal as according to him the trying magistrate had enough materials to record a finding and to lodge a complaint under section 479a(1), cr.p.c. and since he had failed to do so, a subsequent proceeding.....
Judgment:

R.K. Das, J.

1. This appeal is preferred against an order of acquittal dated 6.12.1960 passed by Sri R.N. Dhal Samanta, Magistrate, First Class, Puri in case No. C(II)-129/60.

2. The prosecution case may be stated as follows: Jagannath Boral, accused No. 1, filed a criminal case No. C(I) 465 of 1958 against Kashinath Mohapatra and others Under Section 323/426 I.P.C. before the Sub-Divisional Magistrate, Puri. The case was transferred to the court of Sri A.K. Das Gupta, Sub-Deputy Magistrate III Class, Puri (P.W. 6) who recorded the evidence of some of the witnesses including that of the present accused person, both of whom figured a, prosecution witnesses in that cases. Ultimately judgment (Ex. 3) in the original case was delivered by Sri P.C. Patnaik, Magistrate III Class, Puri, (P.W. 2) on 30.9.1959, acquitting the accused persons in that case.

Thereafter, on 22.12.1959 Kashinath Mohapatra (P.W. 1) who was accused in the previous criminal case, filed a petition (Ex. 4) to start a proceeding Under Section 476, Cri.P.C. for prosecuting the present respondent Jagannath Baral and Golokh Baral Under Section 193 I.P.C., as they gave false evidence by denying the suggestion that Dukhishyam is the brother of Golok in the previous criminal case. After necessary inquiry Shri P.C. Patnaik, Magistrate (P.W. 2) filed a complaint (Ex. 8) before the Sub-Divisional Magistrate, Puri on 22.2.60.

The case ultimately came up for hearing before Sri R.N. Dhal Samanta, Magistrate, First Class, Puri, who, though held that the accused person did not (?) really make false statements in the previous criminal case, passed an order of acquittal as according to him the Trying Magistrate had enough materials to record a finding and to lodge a complaint Under Section 479A(1), Cr.P.C. and since he had failed to do so, a subsequent proceeding Under Section 476 Cr.P.C. was not competent and no complaint could be instituted on the basis of such inquiry. The learned Magistrate relied upon a number of decisions of different High Courts of India in coming to such a finding. It is against this order of acquittal the Government has filed the present appeal.

3. This controversy arose on account of the new Section 479-A, Cri.P.C. added by the Amending Act No. 26 of 1955. It is necessary to quote the relevant provisions of the section to appreciate the arguments advanced in this case:

479A(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 proceedings 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.

* * * * *(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.

The penal provision mentioned in Section 479A(I) regarding giving of false evidence is more or less a reproduction of Section 193 I.P.C. Section 479-A (6) however, bars proceedings Under Section 476 to 479 Cr.P.C. both inclusive for prosecution of a person 'for giving or fabricating false evidence,' that is, in respect of an offence Under Section 193 I.P.C. if in respect of such a person proceeding may be taken up in (sic) this section. The relevant!, portion of Section 476, Cri.P.C. runs as follows:

476.(1) 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 as 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, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate.* * * * *

To appreciate the scope and implication of Section 476 it is necessary to read the section along with Section 195 Cr.P.C. Under Section 195(1)(b) no court shall take cognizance of an offence punishable Under Section 193 I.P.C. (and also some other offences) except on the complaint in writing of a court or some other court to which such court is subordinate. Clearly, therefore, giving or fabricating false evidence comes within the scope of both Sections 476(1) and 479A(1) of the Criminal Procedure Code and to some extent these two sections overlap each other. No doubt an anomalous position arises in the practical application of both the sections to a particular case.

4. It is a settled position of law that where in an enactment there are two provisions which cannot be reconciled with each other they should be so interpreted and should be so harmoniously construed so as to give effect to both, if possible. So both the sections shall be so construed as not to lead to any absurdity or to cause any practical inconvenience in their operation.

The scope of Section 479A, however appears to be somewhat different from that of Section 476. Section 479A deals only with cases of intentionally giving or fabricating false evidence at any stage at a judicial proceeding as contemplated Under Section 193 I.P.C. and does not deal with any other kind of offence whereas the scope of Section 476 is wider and covers various kinds of other offences in respect of which possibly no action can be taken under Section 479-A. Under both the sections a Court is quite competent to take action suo motu without any application from any party, though Under Section 476 a court may take action on the application of a party.

Under Section 479A however, there is no provision for any action being taken on the application of a party. On the other hand it provides that when any court is of opinion that any person appearing before it as a witness intentionally gives or fabricates false evidence, it may for the eradication of the evils of perjury and fabrication of false evidence record a finding to that effect at the time of delivery of the judgment or final order and file a complaint against such a person. In other words, if a glaring case of perjury comes to the notice of the Court, the court may record a finding to that effect and file a complaint. If on the other hand from the materials before him he is unable to come to such a finding, is he debarred under Section 479A(6) Cr.P.C. from taking subsequent action under Section 476 Cr.P.C.? It cannot, however, be contended that Sub-section 6 of Section 479A completely excludes operation of Sections 476 to 479 and makes those sections redundant. In fact each of the two sections can operate in their own fields. In order to avoid any conflict, Section 479A(6) excludes the operation of Sections 476 1 to 479 only in respect of such cases where action may be taken under Section 479A.

5. The question for consideration is what is the respective field of operation of the aforesaid provisions and in what cases action may be taken under Section 479A(1) so as to exclude the operation of Sections 476 to 479. On this point there appears to be a division of opinion amongst different High Courts of India.

In a case reported in : AIR1958All364 Jai Bir Singh v. Malkhan Singh, it was laid down to the effect that after the introduction of Section 479A by the Amending Act 26 of 1955 all cases of witnesses giving or fabricating false evidence in a proceeding pending in a Court are governed by that section and to that extent Section 476 stands repealed. This decision was relied upon by the Punjab High Court in a case reported in Parshottam Lal v. Madan Lal , and by the Madhya Pradesh High, Court reported in Mannalal v. Ramkishan : AIR1959MP264 . The same view was taken by the Andhra Pradesh High Court in a case reported in In re Muniamma : AIR1959AP330 . The Patna High Court in a case reported in Ramdeep Singh v. Shyama Singh : AIR1961Pat71 , held that so far as an offence Under Section 193 IPC. is concerned a court is not competent to subsequently proceed Under Section 476, Cri.P.C. - if it has not recorded a finding of perjury in its judgment and filed a complaint Under 479A(1) Cr.P.C.

6. The other views on the point may now be examined. The Allahabad High Court in a later case reported in Durga Pd. v. State of U.P. : AIR1959All744 , dissented from the view expressed in : AIR1958All364 and held that Section 479A had not impliedly repealed Section 476 of the Criminal Procedure Code in respect of all cases of witnesses giving or fabricating false evidence in judicial proceedings, Hut the provisions of Section 478 were still available for witnesses whose cases could not be brought under Section 479A for one reason or other. Their Lordships were of the view that Section 479A was enacted to give additional powers to the Court authorising it to deal speedily with more flagrant or serious cases of intentionally giving false evidence in judicial proceeding and the less serious types of offences could however be dealt with Under Section 476, Cri.P.C. Of course their Lordships did not lay down any test to determine the difference between the types of such offences.

The latter view of the Allahabad High Court ha, been approved by the Bombay High Court in a case reported in AIR 1960 Bom 483, State or Bombay v. Premdas, where his Lordship was of the view that Section 479A applies only to certain cases of false evidence namely, serious, flagrant and patent cases of perjury where the Judge acts under Section 479A(1) and that Section 476 applies to all other cases of false evidence where the Judge has not recorded a finding Under Section 479A(1). Thus Section 479A(6) does not exclude all cases of perjury from the operation of Sections 476 to 479, Cri.P.C. His Lordship dissented from the aforesaid views expressed in : AIR1958All364 and : AIR1959MP264 .

A case reported in : AIR1960Mad77 , Kasi Thevar v. Chinniah Konar, has however taken a slightly different view. His Lordship held that a Court could come to a conclusion that a witness is false only when there were materials placed before it to justify that opinion. Mere appearance of a person a, a witness will not Justify a Court to take action Under Section 479-A. Where it is only after the, judgment was delivery that the necessary documents which would establish the falsity of the evidence were obtained and brought to the notice of the Court, Section 479A would not apply and Sub-section (6) would not operate as q bar for proceedings Under Sections 476 to 479 of the Criminal Procedure Code. I am in complete agreement with the aforesaid view of the Madras High Court.

7. Section 479A gas been introduced as a new provision undoubtedly to deal with glaring cases of perjury which are apparent on the face of the record. Sub-section (6) of that section explains to some extent the scope and purpose of the new provision. According to that sub-section no proceeding shall be taken under Sections 476 to 479 for the prosecution of a person giving or fabricating false evidence if in respect of such a person proceedings may be taken Under Section 479-A. In other words, if there are materials before it from which the Court could come to a finding, it should record such a finding and make a complaint against the person who had given or fabricated false evidence. In such cases no action could be taken Under Sections 476 to 479. If on the other hand there were no material, before it at the time of delivery of judgment or a final order, but it came to its notice subsequently then obviously it could not have given a finding at the time of the judgment and thus Sub-section (6) of Section 479-A cannot operate as a bar to take action Under Section 476.

There may yet be another position where there were enough materials before it to come to a finding about the veracity of a witness and to reject the evidence of a witness as false but the Court for some reason or other does not give a finding or file a complaint as contemplated Under Section 479A. In my opinion in such a case Sub-section (6) comes as a bar and no further action can be taken Under Section 476. In that event it may be taken as if the Court did not consider it a fit case where a complaint should be filed Under Section 479-A and the Court should not on the very same materials subsequently act Under Section 476 on the application of a party. If such a course is permissible, then Section 479A becomes practically redundant. Such an action may defeat the very purpose of the new Section 479A one of the objects of which is to take expeditious action for the eradication of the evils of perjury. Otherwise a party may come at his leisure and pleasure to move a court Under Section 476 after lapse of any length of time.

8-10. His Lordship then examining the facts of the case held that the bar under Section 479A(6) applied to the case and ordered: In the result therefore, there is no merit in this Governments Appeal which is accordingly dismissed. The bail bonds of the respondents are cancelled.


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