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Abdul Shakoor and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 247 of 1963
Judge
Reported inAIR1965Raj195; 1965CriLJ675
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 479A(1), 479A(4) and 479A(5)
AppellantAbdul Shakoor and ors.
RespondentState of Rajasthan
Appellant Advocate M.M. Singhvi, Adv.
Respondent Advocate S.R. Singhi, Adv.
DispositionRevision allowed
Cases ReferredRameshwar Gangadin v. State
Excerpt:
- - ' the observations made in the above case are clearly applicable in the present case and that decision should also govern it. .such a survey is often indispensable, even when the words are the plainest :for the true meaning of any passage is that which (being permissible) best harmonises with the subject and with every other passage of the statute. there appears to beno sound reason why this salutary provision basedon principles of natural justice should be regardedmandatory only under sub-sections (4) and (5) and notunder sub-section 1. it will be noticed that under section (4) though the order is made in favour of the person being proceeded against yet under the law an opportunity of being heard is required to be given to him as well......little doubt 'giving the witness an opportunity of being heard' is a pre-essential requisite for making complaint. on the other hand, if those words qualify the expression 'after giving the witness an opportunity of being heard' issuance of notice would be a matter of mere discretion.' it was further observed that :'sub-section (1) construed in isolation i.e., without regard to the other sub-section of the same section may render the first mentioned interpretation highly probable, nay, having regard to the punctuation may make it the only correct interpretation. but that is not the way how a section must be interpreted. each part of it ought to be so construed as to be consistent with the other, removing if necessary all apparent inconsistency so far as it is possible and making the.....
Judgment:
ORDER

C.B. Bhargava, J.

1. In a case under Section 379 of the Indian Penal Code, Babu alias Kudratullah was tried in the Court of Munsif Magistrate, Jodhpur District. This case was registered by the police on the report of Abdul Shakoor. Abdul Shakoor and the other petitioners appeared as prosecution witnesses in that case. The learned Munsif Magistrate while acquitting the accused recorded a finding as required by Section 479A (1) of the Code of Criminal Procedure and directed a complaint to be drawn separately against each of the petitioners under Section 193 of the Indian Penal Code. Being aggrieved by the said order the petitioners preferred a revision application before the Additional Sessions Judge, Jodhpur, but the same was rejected. They have now come up to this Court in revision.

2. It has been urged inter alia by the learned counsel of the petitioners that the order of the learned Munsif Magistrate to draw and forward a complaint against the petitioners under Section 193 of the Indian Penal Code without giving them an opportunity of being heard, is contrary to law. It is urged that Section 479A(1) of the Code requires that before a complaint is made, the witness should be given an opportunity of being heard.

3. In Criminal Revn. No. 56 of 1961, Mehtab Chand v. State, decided on 9th January 1962, (Raj), similar question was raised before me and I then expressed the view that the provision of giving an opportunity to the witness of being hoard under Section 479A of the Code was mandatory and could not be dispensed with. It was also observed in that case that ''the words 'if it so thinks fit' refer to the making of a complaint and not to the giving of an opportunity to the witnesses of being heard.' The observations made in the above case are clearly applicable in the present case and that decision should also govern it. But learned counsel for the State has brought to my notice a Bench decision of Andhra Pradesh High Court in In re, Javvaji Uthanna, AIR 1964 Andh Pra 368, where a contrary view has been taken and in view of that decision learned counsel has asked me to reconsider my previous decision.

The learned Judges in the above case observed;

'The whole controversy therefore, turns upon the expression 'and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof.' If tho words 'if it so thinks fit' govern the expression 'make a complaint' there can be little doubt 'giving the witness an opportunity of being heard' is a pre-essential requisite for making complaint. On the other hand, if those words qualify the expression 'after giving the witness an opportunity of being heard' issuance of notice would be a matter of mere discretion.'

It was further observed that :

'Sub-section (1) construed in isolation i.e., without regard to the other sub-section of the same section may render the first mentioned interpretation highly probable, nay, having regard to the punctuation may make it the only correct interpretation. But that is not the way how a section must be interpreted. Each part of it ought to be so construed as to be consistent with the other, removing if necessary all apparent inconsistency so far as it is possible and making the scheme or the purport of the whole section coherent and intelligible.'

The learned Judges quoted Maxwell on the Interpretation of Statutes, 11th Edition at pages 27 and 28 that :

'........It is an elementary rule that construction is to be made on all the parts together, and not of one part only by itself. ..... Such a survey is often indispensable, even when the words are the plainest : for the true meaning of any passage is that which (being permissible) best harmonises with the subject and with every other passage of the statute.'

It was observed that :

'While construing sub-s. 1, we have to necessarily consider Sub-section 5 and Sub-section 5 provides : ' . . . . .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 o being heard.'

On a consideration of Sub-section (5) their Lordships came to the conclusion that:

'It was difficult to accept the contention that Sub-section (1) contains a mandatory provision as to issuance of notice before making a complaint and this is mainly because if that were so, reference to Sub-section (1) in Sub-section (5) would itself have been sufficient, and the Legislature in order to express its mind would not have been further impelled to add a significant clause beginning with the word 'but'. It cannot be accepted either that this clause is superfluous, for the word 'but' by itself must negative such contention.'

Their Lordships however, agreed with the following observations of Jagadisan J. in Rukmani Bai v. C.R. Govindaswamy Chetty 1963-2 Cri L J 355 (Mad) : --

'Prosecuting a person for an offence under the Indian Penal Code is certainly a grave matter and however much it may be called for in the interests of justice the person who is to face the prosecution should in all fairness be given an opportunity to vindicate himself if he can even prior to the commencement of the prosecution in cases governed by Sections 476 and 479-A, Criminal P. C.'

Thus the view taken in the above case in short is that Sub-section 1 of Section 479-A, if read by itself, contains a mandatory provision for giving an opportunity of being heard to the witness before a complaint is filed against him. But if read with Sub-section 5 of Section 479-A, it means that giving of such opportunity is discretionary with the court. That discretion, however, is to be exercised on principles of justice and equity and the rule of audi alteram pattern should be followed. The order of the court below was set aside by their Lordships because the discretion was not properly exercised by the court and the witness was not given an opportunity of being heard before a complaint was made against him.

4. The question therefore, is whether both underSub-section 1 and Sub-section 5, it is the requirement of lawthat the witness should be given an opportunity ofbeing heard before a complaint is made against himor whether it is only under the latter and not underthe former sub-section. Now Sub-section (1) of Section 479 (a)empowers the trial court to make complaints in casesof perjury by witnesses in any stage of judicial proceeding. Under Sub-section (4) the appellate court (hearingappeal against the decision in the main case) is empowered to withdraw the complaint made under Sub-section (1) (a). Under Sub-section (5) the appellate court (hearingappeal against the decision in the main case) is empowered to exercise the power conferred under Sub-section (1) where no complaint has been made under thatsub-section. All the three sub-sections contain a provision of opportunity of being heard being given tothe affected person whether a complaint is madeagainst him or it is withdrawn. There appears to beno sound reason why this salutary provision basedon principles of natural justice should be regardedmandatory only under Sub-sections (4) and (5) and notunder Sub-section 1.

It will be noticed that under Section (4) though the order is made in favour of the person being proceeded against yet under the law an opportunity of being heard is required to be given to him as well. Under Sub-section (5) the power is exercised by the appellate Court which does not have the advantage of recording the evidence of the witnesses, but in many cases the trial Judge who delivers judgment and records a finding under Sub-section (1) also suffers from the same disadvantage. No distinction in my opinion can be drawn on the ground that the court making the complaint under Sub-section (1) itself conducts the proceedings in the course of which it is found that a particular witness has committed perjury while under Sub-section (5) it is the appellate court which does not have that advantage. It is true that the addition of the clause 'but no such order shall be made without giving the person affected thereby an opportunity of being heard' in Sub-section (5) even after making a reference to Sub-section (1) support the view which found favour with the learned Judges of the Andhra Pradesh High Court. But the Legislature does sometimes repeat itself and does not always convey its meaning in the style of literary perfection.

Many instances may be found of provisions put into statutes merely by way of precaution. Craies on Statute Law, Sixth Edition at page 104 observes :--

'It is not so very uncommon in an Act of Parliament to find special exemptions which are already covered by a general exemption. 'Such specific exemptions are often introduced ex- majori cautela to quiet the fears of those whose interests are engaged or sympathies aroused in favour of some particular institution and who are apprehensive that it may not be held to fall within a general exemption.'

In my opinion the insertion of the clause of giving an opportunity of being heard in Sub-section (5) is only to emphasise its need and has been done by way of abundant caution. If a provision for giving an opportunity of being heard is to be regarded mandatory even under Sub-section (4), I do not see any reason why it should not be so regarded under Sub-section (1) when on its language it is the only correct interpretation. This interpretation does not lead to any repugnancy between the provisions of Sub-section (1) and Sub-section (5). On the other hand it is more in consonance with reason and justice.

5. In Battan Cband Moti Ram v. P.C. Bhatia 1961(1) Cri LJ 557 (Punj), it was held that 'the witness has to be given an opportunity or being heard before the complaint is instituted.' Similar view has been taken in Rameshwar Gangadin v. State, 1961 (1) Cri LJ 668 (M P) by H.R. Krishnan J. and and Sadasivam, J. in In re Virudan, 1983(1) Cri L J 370 (Mad).

6. I am, therefore, of the view that the order of making a complaint without giving an opportunity of being heard to the petitioners is contrary to law and should be set aside. The learned Munsif Magistrate should now after giving the petitioners opportunity of being heard decide whether a complaint should be made against them or not.

The revision is, therefore, accepted.


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