1. Didar Singh filed a suit for possession of some agricultural land against Sarbjit Singh and his mother Ravel Kaur. In the plaint, Sarbjit Singh was described as son of Ravel Kaur wife of Gurpal Singh and Ravel Kaur as wife of Gurpal Singh. The case of the defendants, however, was that Ravel Kaur was the wife of Didar Singh, plaintiff, and Sarbjit Singh was his son through her.
2. After trial, the suit was decreed on 26th November, 1970. Towards the close of the judgment, the learned Subordinate Judge observed as under:--
'Before parting with this judgment, I would also deal with the application under Section 479-A, Criminal Procedure Code moved by the defendants against the plaintiff. It was stated that the plaintiff had given false evidence that the defendants were not his son and wife respectively, although he had been previously admitting their relationship with him. It is true that the plaintiff in his statement as P.W. 2 denied that defendant No. 1 is his son and defendant No. 2 is his wife. The question is can it be said that he had committed perjury. The question of relationship of the plaintiff with the defendant was not directly in issue. At the same time there can be no doubt that the relationship of the defendants with the plaintiff was a relevant fact so as to arrive at the correct conclusion on issue No. 1. The defendants' case was that the suit land had been given to them by the plaintiff by way of maintenance as they bore special relationship with the plaintiff. But for that relationship the plaintiff would not possibly have given any land to them by way of maintenance. Thus the question of relationship was a relevant fact. the plaintiff was interested in denying that fact in the suit. The defendants had produced certified copy of the statement made by the plaintiff in a case State v. Sarbjit Singh, under Sections 324/506, 148/149 I.P.C., decided on 20-1-67 by Shri Niranjan Singh JMIC Batala. He admitted defendant No. 1 to be his son but the plaintiff was not confronted with this statement when he appeared as P.W. 2. Any how it would appear from Exhibit P-1, P-3, P-4 and P-5 copies of the Jamabandi produced and relied upon by the plaintiff himself that defendant No. 1 was his son and defendant No. 2 was his wife. The plaintiff had never challenged those entries. Rather he had relied upon those entries to defeat the defendants' claim in the suit. He was interested in denying in this suit that the defendants bore any relationship with him. He was not even prepared to tell as to who was the father of defendant No. 1 and who was the husband of defendant No. 2, although it is admitted that Gurpal Singh was his brother. In these circumstances I am of the opinion that the plaintiff had intentionally given false evidence while appearing as P.W. 2 in judicial proceedings and as such he had perjured himself. I, therefore, think it expedient in the interest of justice and for the eradication of the evils of perjury that the plaintiff Didar Singh (P.W. 2) should be prosecuted for having committed an offence of giving false evidence. As such I direct that he should be proceeded against and a complaint be instituted against him.'
3. Against the concluding portion of this judgment, the present revision petition has been filed by Didar Singh.
4. A preliminary objection has been raised by the learned counsel for the respondents that this revision is not competent. The impugned order was made by the learned Senior Subordinate Judge under the provisions of Section 479A(1) of the Code of Criminal Procedure and against this order a revision petition of this nature was not competent.
5. Section 479A, Code of Criminal Procedure, reads:
'(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 or 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:
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.
(3) No appeal shall lie from any finding recorded and complaint made under sub-section (1).
(4) Where, in any case, a complaint has been made under sub-section (1) and an appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen, the hearing of the case before the Magistrate to whom the complaint was forwarded or to whom the case may have been transferred shall be adjourned until such appeal is decided; and the Appellate Court, after giving the person against whom the complaint has been made an opportunity of being heard, may, if it so thinks fit, make an order directing the withdrawal of the complaint; and a copy of such order shall be sent to the Magistrate before whom the hearing of the case is pending.
(5) In any case, where an appeal has been preferred from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said sub-section may be exercised by the Appellate Court, and where the Appellate Court makes such complaint, the provisions of sub-section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard.
(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.'
6. A bare reading of the provisions of this Court would show that before a complaint is lodged by a Court, it has to give notice to the person against whom such a complaint has been filed and he has to be heard about his objections, if any, against the making of such complaint. This provision is mandatory and if it is not complied with before the said complaint is filed in Court, the same is liable to be quashed.
7. This view is supported by a decision of this Court in Sham Babu Gupta v. State (Delhi Administration), 1965-67 Pun LR 411. While giving the decision in Sham Babu Gupta's case, the learned Judge relied on a decision of the Supreme Court in Dr. B. K. Pal Chaudhry v. State of Assam, AIR 1960 SC 133, where it was held:
'In a case governed by sub-section (3) of Section 479-A the terms of both sub-sections (1) and (5) have to be complied with. The combined effect of these sub-sections 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.
Where therefore in the order passed by the High Court directing complaint to be filed against a witness there was no finding recorded by it that the witness had intentionally given any false evidence or that it was expedient to proceed against him for the eradication of the evils of perjury and in the interests of justice, and further, the High Court did not give the witness a proper hearing to which he was clearly entitled under the terms of sub-section (5) of Section 479-A;
Held, that the order was made in breach of the express provisions of the section and could not be allowed to stand.
Held further that the finding required to be made by Section 479-A(1) was only of a prima facie nature and that it could not be a finding which would have any force at the trial upon the complaint made pursuant to that finding'.
8. Thus it is obvious that Didar Singh has to be heard by the learned Subordinate Judge before he can order that a complaint be lodged against him before a Magistrate. If that is not done by the learned Judge, Didar Singh can, if so advised, file a petition under Section 561-A of the Code of Criminal Procedure for quashing the criminal complaint made against him in the Court of a Magistrate. If, on the other hand, the learned Subordinate Judge, even after hearing the objections of Didar Singh, makes a complaint against him, the latter has two courses open to him. He can either come to this Court under Section 561-A of the Code of Criminal Procedure and show that on the averments in the complaint itself, no case of perjury is made out against him and the complaint is liable to be quashed on that ground alone, or, in the alternative, he can face the trial before the Magistrate and get the complaint dismissed. If, however, he is convicted, he has his remedies by way of appeal and then revision against the order of conviction under the provisions of the Code of Criminal Procedure.
9. The present remedy, which Didar Singh has chosen, is not the correct one and the revision petition is not competent. The same is, consequently, dismissed. There will, however, be no order as to costs.
10. Petition dismissed.