1. This Court while deciding the Civil Writ Petition No. 197 of 1959 (Madan Singh v. Union of India and others) by its order dated 28-10-1960, directed Bansilal and Ugamsingh to show cause why they should not be prosecuted for swearing and presenting false affidavits in this Court.
2. On a complaint lodged by Shri Radhe Shyam, the Train Examiner, Uterlai, Madan Singh was charge-sheeted on 12-2-1958, for misconduct, in a departmental enquiry held on that complaint. Madan Singh cited three witnesses in defence, two of them were Bansilal, fitter and Ugamshigh, Oiler, before the Enquiry Committee, of which Mr. Walters, Carriage and Wagons inspector, was the Chairman.
These two persons showed their reluctance to give evidence in presence of Madansingh, as they apprehended that he will take retaliatory action against them, if they stated against him in his presence. The members of the Committee examined these two persons in the absence of Madansingh under Rule 1707 Clause (d) and Rule 49 of the Discipline and Appeal Rules. Their statements were recorded in English and were read over to them and they signed each page of the deposition in acknowledgment of the correctness.
The report of the Enquiry Committee was that the charges were proved against Madansingh and that he was guilty of misconduct and indiscipline. This report was considered by the Divisional Mechanical Engineer, who passed an order of removal against Madansingh. Madansingh thereafter presented a writ petition in this Court on 12-5-1959, praying for a writ of certiorari for quashing the order of his dismissal.
This writ petition was contested by the opposite parties to this writ petition, and Madansingh submitted a rejoinder along with three affidavits, one of himself and the other two of Bansilal and Ugamsingh. In their affidavits Bansilal and Ugam-singh stated that their statements were not correctly recorded by the Enquiry Committee and they had not stated what had been recorded therein.
The affidavit of Bansilal was verified by theOath Commissioner, Rajasthan High Court, Jodhpur,on 22-8-1960, and the affidavit of Ugamsingh wasverified by the Sub Divisional Magistrate, Banner,on 24-8-1960. The opposite parties thereupon fileda reply to the rejoinder with an affidavit of ShriN. M. Walters, Carriage and Wagons Inspector thatBansilal and Ugamsingh had deposed what is contained in their statements recorded before theEnquiry Committee.
3. This Court while deciding the writ petition took the view that there was no reason to disbelieve the statement of Mr. Walters that the above statements recorded by the Committee were correctly recorded and felt satisfied that these persons have subsequently gone back on their statements and had sworn false affidavits.
4. Under these circumstances, this Court directed Bansilal and Ugamsingh to show cause why they should not be prosecuted for swearing and presenting false affidavits in this Court.
5. In pursuance of the aforesaid order, notices were issued to Bansilal and Ugamsingh. Both of them have appeared through their counsel, who have submitted that in view of Sub-section (6) of Section 479-A Cr. P. C. no proceedings can be taken against Bansilal and Ugamsingh for giving false evidence. It was also urged that the statements before the Enquiry Committee were recorded in English and were not translated in vernacular and 1 they could not properly grasp as to what had been recorded in their statements. Bansilal has also filed an application that it was not a fit case in which prosecution should be ordered against him as he was a poor person with a large family and had been in employment of the Northern Railway from 15-10-1946 and in case he is prosecuted he will be ruined.
6. The learned Government Advocate has urged that the provisions of Section 479A of the Criminal Procedure Code have no application to the case on three grounds. Firstly, it is said that this Court was exercising its jurisdiction under Article 226 of the Constitution, and it cannot be said to be a Civil Court within the meaning of Sub-section (1) of Section 479A. Secondly, it is urged that the provisions of Section 479A are applicable to a person appearing before any Civil Revenue Or Criminal Court as a witness, and in this case Bansilal and Ugamsingh cannot be taken to be appearing as witnesses.
They had made false statements in the affidavits sworn before the authorities competent to administer oath and they were liable to be prosecuted under Section 193 I. P. C., as intentionally giving false evidence. Lastly, it is urged that even if the case comes under Section 479A Cr. P. C., Sub-section (6) is no bar for taking proceedings under Section 476 Cr. P. C. He has also controverted the other points raised by the opposite parties.
7. On the facts stated above, it is clear that the wo affidavits were not submitted by Bansilal and Ugamsingh in this Court. They cannot, therefore, be prosecuted for presenting false affidavits in this Court.
8. We may also mention that this Court while issuing notices expressed its opinion that it felt satisfied that these two persons had sworn false affidavits. However, it was not definitely said that the Court was of the opinion that these persons had intentionally given false evidence, and that for the eradication of the evils of perjury and in the interest of justice these persons should be prosecuted for the offence under Section 193 I. P. C. As there is no such opinion expressed, we are of the opinion that complaints cannot be filed against the non-petitioners applying the provisions of Section 479A Cr. P. C.
9. The argument on behalf of the opposite parties is that this Court could have made a complaint for giving false evidence under Section 479A Cr. P. C. and as such no proceedings could be taken against the opposite parties under Section 476 Cr. P. C. in view of Sub-section (6) to Section 479A and the notices issued to the opposite parties should be withdrawn. As already mentioned the learned Government Advocate has argued that this is noi the proper interpretation of Sub-section (6) and that in appropriate cases, proceedings under Sections 476 to 479 can be taken even in cases falling under Section 479A Cr. P. C. He has, however, urged that Sub-section (1) of Section 479A Cr. P. C. is not at all applicable to this case for the other two reasons which we have already referred.
10. The first ground on which it is said that Sub-section (1) of Section 479A is not applicable to the case is that this Court while exercising jurisdiction under Article 226 of the Constitution cannot be said to be acting as a Civil, Revenue or Criminal Court. We are of the opinion that this argument has no merit. It is true that the word 'court', as referred to in Section 195 Cr. P. C. has a wider connotation and is not confined to a Civil, Revenue or Criminal Court, as it finds place under Sections 476 to 480 Cr. P. C. Nevertheless this Court while exercising its jurisdiction under Article 226 of the Constitution must be taken to be acting as a Civil or Criminal Court according to the nature of the case, which is before it for decision.
The expression 'Civil Court' is not defined anywhere and if the proceedings before a duly constituted court are of such a nature that they will involve a decision of the civil rights of the parties and the Court has jurisdiction to decide those rights, it would be in consonance with the general principles of interpretation to hold that the court exercising jurisdiction in such a matter is acting as a Civil Court.
The same considerations apply for deciding whether a court is a Criminal Court or a Revenue Court. We are of the opinion that on this broad principle this Court must be taken to be acting as a Civil Court while deciding the writ petition filed by Madansingh, as in that writ petition he had asserted that he was wrongly dismissed by the authorities concerned and this Court was deciding the civil right of a party.
In Nahar Singh v. State of Rajasthan, (S) AIR 1955 Raj 56 this Court took notice of the Rajasthan High Court Rules contained in Chapters 21 and 22 and came to the conclusion that the provisions of the Rules pointed out that this Court would be acting as a Civil Court while dealing with cases of writ petitions under Article 226 of the Constitution, other than the writs in the nature of habeas corpus. We take the same view but on the broad ground that a duly constituted court should be taken to be acting as a Civil, Revenue or Criminal Court, according to the nature of the proceedings before it.
11. The second contention raised by the Government Advocate to take out the case out of the purview of Section 479A Cr. P. C. is that that section is confined to a person appearing before a Civil, Revenue or Criminal Court as a Witness, andhas no application where merely an affidavit of that person is filed before the Court. The provisions of the Indian Evidence Act are not applicable to the affidavits presented in court or office.
Section 1 of the Evidence Act definitely says, so. A person filing his affidavit in a court of law cannot be said to be a witness under the Evidence Act if he is not examined under the provisions of Chapter 10 of that Act. Affidavits are permitted to be filed in a Court of law in accordance with tho provisions of various enactments, for example, under Rule 1 of Order 19 C. P. C., 'any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable'.
There is a provision of filing affidavits upon interlocutory provisions in Rule 3 of Order 19 C. P. C. Similarly, there are other laws containing such provisions by which any fact may be proved by filing an affidavit. Under Rule 383 of the High Court Rules, it has been laid down that all questions arising for determination in a writ petition under Article 226 of the Constitution other than the writ in the nature of habeas corpus, shall be decided ordinarily upon affidavits.
Thus the filing of an affidavit in order to prove a fact is expressly permitted by rule 383 in the case of writ petitions. Can it be said that a person whose affidavit is filed before this Court under that rule must be taken to be a person appearing as a witness before the Court? We are of the opinion that the words 'appearing as a witness' convey the sense of physical appearance of a, person as a witness before a court of law.
Section 479A Cr. P. C. has curtailed to some extent the elaborate procedure provided under Sections 476 to 479 Cr. P. C. in case of a person ap-pearing as a witness. This was done with a purpose for avoiding undue delay in prosecuting a witness, who has appeared before a court of law and who in the opinion of that court has given false evidence. In such a case if the court is of the view that in the interest of justice and for the eradication of the evils of perjury, he should be prosecuted, the court can without following the procedure in Ss, 476 to 479 order his prosecution.
The policy of law in enacting sections 476 to 479 Cr. P. C. is to discourage the ill-advised and hasty prosecution by a court of law and for this purpose the procedure under Sections 476 to 479 was provided. But it was found that an amendment was necessary to discourage the evil of giving of false evidence before a court of law by witnesses appearing before a court of law and for that reason Section 479A was enacted.
While on the one hand, the provisions of Section 479-A make it unnecessary to follow the procedure laid down under sections 476 to 479, Cri. P. C. it also emphasises that the court must express its opinion in a definite and certain manner on the points mentioned in Sub-section (1) of that section. It must be of the opinion that the prosecution was in the interest of justice and must also of the view that the prosecution was necessary for the eradication of the evils of perjury.
Sub-section (1) of Section 479A must be construed strictly as it takes away the protection provided in Sections 476 to 479 Cr. P. C. and cases which do not directly come under that Sub-section should not be brought within its purview by giving the words appearing before it as a witness' a wider meaning. The case of a person whose affidavit has been filed hut who has not personally appeared as witness does not fall therein.
The proper procedure, where a person is sought to be prosecuted for giving false evidence in his affidavit, is to take proceedings under sections 476 to 479 Gr. P. C. We may, however, make ourselves clear on one point that there may be provision in a particular law where a person who makes an affidavit is to be taken a person appearing as a 'witness. If there is any such provision, his case may fall under Section 479A (1).
12. We are, therefore, of the opinion that theopposite parties Could not be dealt with under Section 479A above, and, therefore, no question of applicability of Sub-section (6) of that section arisesin this case.
13. There is judicial controversy on the point whether a person against whom proceedings under Section 479A (1) can be taken, can be proceeded against under Sections 476 to 479 Cr. P. G. if such a person has not been ordered to be prosecuted under Section 479A (1). We need not resolve this controversy in this case, as we have come to the conclusion that so far as the opposite parties are concerned no proceedings could be taken under Section 479A(1). We do not find any force in the contention that the opposite parties could not now be ordered to be prosecuted in view of Sub-section (6) of Section 479A.
14. A Division Bench of this Court has taken the view that the affidavits of the opposite parties were false on material particulars. We are of the opinion that it is expedient in the interest of justice that the opposite parties should be ordered to be prosecuted under Section 193 I. P. C. inasmuch as they appear to have sworn false affidavits,
15. We, therefore, direct that two separate complaints be drawn up in this case by the Registrar and these complaints, one against Bansilal, the other against Ugam Singh, duly signed by the Registrar, may be forwarded to such Magistrate as may be competent to take cognizance of this offence.