R.K. Das, J.
1. This petition is directed against an appellate order made under Section 476B by the Assistant Sessions Judge, Cuttack, directing a complaint to be filed against the petitioner under Section 193 Indian Penal Code.
2. The petitioner Taramam Dasi filed a com-plaint against the opposite party and some others under Sections 379/109, I, P. C., alleging that they plucked some cocoanuts from her trees. Her case was that she is the legally married wife of one Lalitmohan Rai the recorded owner of the disputed land on which the said cocoanut trees stood. After the death of her husband, she was in possession of the said property, but the accused persons plucked the cocoanuts from the trees standing thereon. On a complaint being filed the accused persons were summoned to stand a trial.
3. The plea of the accused persons was that the land in question was in possession of Sibendra Kumar Rai, an adopted son of Lalitmohan and the complainant was a mere concubine of Lalitmohan and was working as his maid servant, and she was not the legally married wife of Lalitmohan as claimed by her.
4. On 26-5-62 the complainant examined herself as P. W. 1. In her cross-examination before charge she stated that she did not marry Lalitmohan but was in his keeping. She was doing all his household work as Lilitmohan had no servant and stayed in his house. The charge was framed on 23-7-62, After examination of the witnesses for the prosecution, Taramani filed an affidavit saying that she did not make a statement of the fact that she did not marry Lalitmohan, but was in his keeping. She asserted that i such a statement as recorded was made in her cross-examination, it might have been done inadvertently and in an unguarded moment. In that affidavit she also described herself as the wife of Lalitmohan. Thereafter the petitioners filed a counter-affidavit on 22-9.62 alleging that the statement made by Taramati in cross-examination before charge represents the correct state of affairs and that it was not stated by her through inadvertence and that the entire evidence had been read out to her arid her thumb impression at the end of the deposition was given in token of her having admitted its correctness, The accused-petitioners further contended that the affidavit filed by Taramani on 6-9-62 was false and that a prima facie case having been made out against her under Section 193, she should be prosecuted under that Section and in the interest of justice an enquiry should be made under Section 476, Criminal P. C.
5. The trial court by his order dated 22-9-62 held that any action under Section 193 at this stage will affect the merits of the case and that the accused persons may press the petition when the judgment would be pronounced. The judgment was delivered on 5-8-63 and the accused persons were acquitted. The learned trial Court, however, did not give any finding as to whether the present petitioner Taramani gave any false evidence in course of the trial in his Court. On 7-8-63 the accused persons filed a petition before the said Magistrate for taking action under Section 193. But the learned Magistrate held that he has no longer Jurisdiction 10 make an enquiry under Section 476 and that the appellant may proceed under Section 476B before the appellate Court. Accordingly on 23-9-63 an appeal under Section 476B. Criminal P. C., was filed before the appellate court for necessary enquiry and filing of a complaint against Taramani. The learned Assistant Sessions Judge held that a prima facie case under Section 193, I. P. C., had been made out against Taramani for having filed a false affidavit and directed a complaint to be filed under Section 476. It is against this order of the Assistant Sessions Judge the present revision has been filed.
6. The main contention of Mr. Ranjit Mahanty, learned Counsel for the petitioner, is that on the facts the case comes within the scope of Section 479A, Criminal P. C., and an appeal under Section 476B is incompetent and on, that ground alone, the order of the Assistant Sessions Judge is to be set aside. Section 479A is a new Section added in the Amendment Act 1955 (Act 26 of 1955) and it prescribes the procedure to be adopted by the courts in cases in which false evidence has been intentionally given or there was the intention of fabricating false evidence for the purpose of being used in any judicial proceeding. The procedure to be adopted to deal in cases of such false evidence has been given in Section 479A which is as follows:
Section 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 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, alter 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 the 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:
Provided that where the court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.EXPLANATION : For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the First Class.
(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200.
7. Sub-section (3) provides that no appeal shall lie from any finding recorded and complaint made under Sub-section (1). Sub-section (6) provides that no proceedings shall be taken under Sections 476 to 479 inclusive for the prosecution of a person for giving and fabricating false evidence, if in respect of such a person proceeding may be taken under this section. We have clearly seen that the trial court himself : at the time of delivery of the judgment did not record any finding in terms of Sub-section (1) above to the effect that Taramani intentionally gave false evidence in any stage of the proceeding or 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 her. This point now raised is directly covered by a decision of the Supreme Court reported in Shabir Hussain Bholu v. State of Maharashtra : AIR1963SC816 . Their Lordships held this:
Bearing in mind the non-obstante clause at the commencement of Section 479A and the provisions of Sub-section (6) it would follow that only the provision of Sub-section (1) of Section 479A 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. Where the offence consists of intentionally giving false evidence 'in any stage of judicial proceeding' it is no doubt true that as under Section 476 it is the Court which disposes of such judicial proceeding which primarily has to act under Section 479A ...If the Court does not form an opinion that the witness has given intentionally false evidence or intentionally fabricated false evidence no question of making a complaint can properly arise. Similarly where the court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence, the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interests of justice to make a complaint, it has discretion not to make a complaint. But it does not follow from this that it can later on resort to Section 476 and make a complaint against the witness. For even under Section 476, the court must before making a complaint, be satisfied that it was expedient in the interests or justice to make an enquiry into the offence committed by the witness. It is not as if the Court has an option to proceed either under Section 479A. or under Section 470 and that if it does not take action under Section 479A, it can do so under Section 470....The provisions of Sections 476 to 479 are totally excluded where an offence is of the kind specified in Section 479A.
The present case comes directly within the ambit of Section 479A and in the absence of a finding by the trial Court the learned Assistant Sessions Judge had no jurisdiction under Section 478B to pass the impugned order, in directing a complaint to be filed against the petitioner.
8. In another case where the appellate Court in exercise of its powers under Section 479 (5) Sled a complaint under Section 193, I. P. C., their Lordships of the Supreme Court in the case reported in Dr. B. K. Pal Choudhary v. State of Assam : 1SCR1006 held that the combined effect of Sub-sections (1) and (5) of Section 479A is to require the Court intending to make a complaint to record a finding that in its opinion a person appearing as a witness has intentionally given false evidence and that for the eradication of the evils of perjury and in the interests of justice, it is expedient that such witness should be prosecuted for the offence and to give the witness proposed to be proceeded against, an opportunity of being heard as to whether a complaint should be made or not.
9. In the present case the trial court has not recorded any finding under Section 479A on the basis of the alleged false affidavit that was before him. This Court in a case reported in State of Orissa v. Jagannath Boral 28 Cut L T 34 ; 1982 (1) Cri LJ 179 held that where there are materials before the Court to come to a finding that the evidence given by the witness is false, but the court for some reason or other fails to give such finding or fails to file a complaint contemplated under Section 479A, then Sub-section (6) of Section 479A operates as a bar and no further action can be taken under Section 470. In that event it may be taken as if the Court did not consider it as a fit case to file a com. plaint under Section 479A and under such circumstances the Court cannot later on, on the very same materials file a complaint under Section 476. If such a course is permissible, then Section 479A-practically becomes redundant.
10. Further there is also no finding as to which of the alleged contradictory statement is false. In view of the legal position the assumption of jurisdiction by the learned Asst. Sessions Judge under Section 476B is clearly erroneous and his order must accordingly be set aside, and the revision allowed.