(1) This revision has been preferred by the plaintiff in a Civil suit against whom an order has been passed by the learned District Munsif, Kulitalai, directing the filing of a complaint under Section 476 Crl. P. C. For an enquiry into offences under Ss. 193 and 209 I.P.C. Against the plaintiff on motion made by the defendant. The learned District Judge, Tiruchirapalli, on appeal, has confirmed the order.
(2) The facts leading to the proceedings may be set out briefly. The petitioner herein, the plaintiff, against whom the complaint is to be laid, is the deceased husband's brother of the respondent herein, the defendant in the suit which the petitioner laid. The suit, O. S. 588 of 1959, on the file of the District Munsif's court, Kulatalai was for recovery of a sum of Rs. 2000 due on a promissory note dated 1-1-1958. It was the case of the plaintiff that this amount was advanced by him to the defendant for the purchase of a land by her for Rs. 3000, Ex. B. 1 being the sale deed. According to the plaintiff, he had a sum of Rs. 1000 belonging to his brother with him.
This suit was contested by the defendant and she put forward a plea that she did not execute any promissory note for Rs. 2000, but that she borrowed only a sum of Rs. 700 on a promissory note in June 1958. She pleaded that a sum of Rs. 500 was paid by her towards the said debt, and that the present plaintiff obtained her thumb impression for the said payment on the alleged promissory not for Rs. 2000 falsely representing that the said endorsement was taken on the promissory note for Rs. 700. While giving evidence in the suit, the plaintiff, in the chief-examination itself, stated that the defendant had not executed a promissory note for Rs. 700 and had not repaid Rs. 500 towards the same. The suit was decreed in favour of the plaintiff on 1-7-1960.
On 21-10-1960, the plaintiff filed another suit, O. S. 560 of 1960, against the defendant for the amounts due on a promissory note for Rs. 700 dated 5-1-1958. On 6-2-1961, the plaintiff's advocate withdrew the suit, O. S. 560 of 1960 endorsing on the plaint that it was not pressed. It is after the withdrawal of the suit, on 3-3-1961, the defendant filed O. P. 5 of 1961 for action under S. 476 Crl. P. C. and prosecution of the plaintiff for offences under Ss. 193 I.P.C. (Giving false evidence) 209 I.P.C. (Dishonestly making false claim) and 210 I.P.C. (fraudulently obtaining decree for sum not due). The learned District Munsif himself held that no case had been made out for sanction to prosecute the plaintiff for an offence under S. 210 and as set out in the beginning, complaint was directed to be filed for offences under Ss. 193 and 209 I.P.C.
(3) Mr. K. S. Desikan, learned counsel appearing for the plaintiff-petitioner urges three points in this revision. The first contention is that S. 479-A Crl. P. C. is a bar to the present proceedings under S. 476 Crl. P. C. It is next contended that there has been no proper appraisal whether it was expedient in the interests of justice that an enquiry should be made in this case, the approach in this behalf being erroneous. Thirdly it is contended that there is absolutely no ground whatsoever for proceedings under Section 209 I.P.C.
(4) The first contention, in my opinion, has no force. S. 479-A Crl. P. C. Relates to a witness who in the opinion of a civil, revenue or criminal court, has intentionally given false evidence in a judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. In such a case, if, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice the court, considers that such witness should be prosecuted for the offence which appears to have been committed by him, it shall, at the time of the delivery of the judgment or final order disposing of such proceeding record a finding to the aforesaid effect giving reasons and make a complaint. This postulates a court coming to a conclusion as to the falsity of the evidence before the judgment of final order. S. 479-A Crl. P. C. Cannot, therefore, apply to a case where after disposal of the case later it is discovered that judgment has been secured by perjured or false evidence and the witness has spoken falsehood. Sub-clause (6) of S. 479-A which is a bar to other proceedings, reads only thus:
"No proceedings shall be taken under Ss. 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."
On the facts of this case, proceedings under S. 479-A could not have been taken. The case for the defendant is that the falsehood became apparent and clear, when the plaintiff, having deposed on oath in O. S. 588 of 1959 that there was no promissory note for Rs. 700 executed by the defendant, later after securing the decree in O. S. 588 of 1959, launched the suit, O. S. 560 of 1960 on 21-10-1960, in respect of a promissory note for Rs. 700. The plaint in that case has been verified as setting out facts, true to the knowledge of the plaintiff. In the earlier proceeding he had denied the existence of a promissory note by the defendant for Rs. 700. It is, therefore, stated that it later became established that he had given false evidence in the earlier proceedings.
(5) In Kasithevar v. Chinniah Konar, , Somasundaram J. Observes:
"It is, therefore, quite clear that at the time when the judgment was delivered the Magistrate was not in a position to form an opinion and that is an essential prerequisite for proceedings under S. 479-A Crl. P. C. The circumstances, namely, that the court must form an opinion about the falsity of the evidence, and, at the time of the delivery of the judgment it should have formed such as opinion are not present in this case. S. 479-A Crl. P. C. will not therefore apply to the facts of this case and, if S. 479-A will not apply to the facts of this case, certainly clause (6) cannot apply because clause (6) can be invoked only to case to which S. 479-A will apply."
The cases of the Supreme Court in Shabir Hussain v. State of Maharashtra, and Babulal v. State of U. P.;
referred to by learned counsel for the petitioner are not of much help to the petitioner. As observed by Shah J in .
"It is clear from the terms of sub-sec. (6) (of S. 479-A) that the procedure prescribed thereby alone applies if the case falls within sub-section (1). But sub-section (1) has a limited operation; it applies only to the prosecution of a witness appearing before the court who has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. The sub-section may therefore be resorted to only in a case which falls within the first paragraph of S. 193 I.P.C. And allied Ss. 194 and 195 when it is committed by a witness appearing before the Court."
In Raghubir Prasad v. Chamanilal Mehra, 1964 mad LJ Crl. (SC) 233 at p. 235: (1964 (1) Cri LJ 489 at p. 490), it is observed by Das Gupta J. Delivering judgment for the Supreme Court;
"There is divergence of judicial opinion on the question whether if action could have been taken by the criminal court under S. 479-A but was not taken, action can still be taken under S. 476 Crl. P. C. But that question does not arise for consideration before us. The question here is: Assuming that where action could have been taken under S. 479-A Crl. P. C., but was not taken by the criminal court concerned, for offences of giving false evidence in any stage of a judicial proceeding or for intentional fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding, no action can be taken under S. 476 Crl. P. C. is it further correct to say that no such action under S. 476 Crl. P. C. can be taken even in respect of offences of forgery or conspiracy to commit forgery?"
It is held in that case S. 479-A has no application to prosecution for offences other than as an offence under S. 193 and cognate sections in Ch. XI of the I.P.C. In my view, it is clear that in regard to cases which do not strictly fall under S. 479-A and no action is possible under that section even in respect of an offence referred to in S. 193 and cognate offences in Ch. XI, I.P.C. the procedure prescribed in S. 476 Crl. P. C. can be followed. It follows also from the above discussion and on the decisions of the Supreme Court referred to above that so far as the offence under S. 209 I.P.C. in the present case is concerned, the procedure under S. 479-A would in no event be available. The case has not proceeded to trial and the present petitioner has not been examined as witness. The bar of S. 479-A to the present proceedings is, therefore, untenable.
(6) Now to take up the tenability of a complaint for an offence under S. 209 I.P.C. the observations of Sir Asutosh Mukherjee, sitting with Chatterjee J. in Jandu Mondensingh v. Emperor (1910) ILR 37 Cal 250, have also to be borne in mind. Sir Asutosh Mookerjee laid out a wholesome caution to be observed:
"No sanction should be granted, or prosecution directed, unless there is a reasonable probability of conviction, though the authority granting a sanction under S. 195 or taking action under S. 476, should not decide the question of guilt or innocence. Great care and caution are required before the criminal law is set in motion, and there must be a reasonable foundation for the charge in respect of which a prosecution is sanctioned or directed."
The charge under S. 209 I.P.C. for dishonestly making false claim in court in the present proceeding is relied upon with reference to the suit, O. S. 560 of 1960, which the petitioner instituted on the basis of the promissory note for Rs. 700. According to the defendant herself, she had executed this promissory note for Rs. 700. It was her case that she had paid a sum of Rs. 500 towards the promissory note. That question has not been gone into and the suit was withdrawn before the trial.
It may be that the plaintiff deposed falsely when in the earlier suit he denied the execution of the promissory note for Rs. 700 a false claim. The defendant admits of her executing the promissory note for Rs. 700. When the suit is on a promissory note admittedly executed by the defendant, can it be said that the plaintiff was making a false claim in court? In this case it cannot be said that either the one or the other, the statement in O. S. 588 of 1959 or the allegation in O. S. 560 of 1960 must be false, as it is the positive case of the defendant who has initiated the proceeding that it is the deposition in O. S. 588 of 1959 that is false. The Courts below have lightly brushed aside the defendant's admission of the execution of the promissory note for Rs. 700 as irrelevant, observing that it is a matter for investigation by the criminal court whether any offence had been committed or not. The courts below have overlooked that there is no prima facie case even that the latter claim is a false one. The fact that the plaintiff withdrew it is neither here nor there. Evidently he withdrew the suit when he realised the consequences of his former deposition and its likely reaction on the latter claim. It cannot, in the circumstances, bearing in mind the caution suggested by Sri Asutosh Mukherjee J., be said that a complaint for an offence under S. 209 I.P.C. would satisfy the test generally adopted for laying a complaint under S. 476 Crl. P. C. the existence of a prima facie case for further enquiry or complaint.
(7) I shall now take up the contention of learned counsel for the petitioner that the finding that the prosecution was expedient in the interests of justice cannot be maintained and is vitiated. Learned counsel pointed out that: a perusal of the order shows that the courts below have mixed the existence of prima facie case and expediency for prosecution in the interests of justice, as if on the presence of the former the latter followed. With reference to this aspect of the matter, the learned District Judge holds:
"The circumstances under which the plaintiff gave evidence on oath denying the existence ;of the pronote for Rs. 700 and the circumstances under which he made the claim subsequently on the very pronote clearly show that in the interests of justice it is expedient that he should be prosecuted."
In both the courts below the discussion is as to whether the offence has been made out for the case to go to a criminal court. The plea of the plaintiff that his statement in the former deposition was a slip or lapse of memory is rejected as incredible, and it is remarked that no reason had been given for withdrawing the latter suit. The statement in the present proceedings by the plaintiff that the suit was not pressed on account of the alleged impecunious position of the respondent is characterised as false. Obviously it is so. It is also clear that the statement in the chief-examination in the former suit was a deliberate statement and he would not have been unconscious of it when he later filed the suit on the promissory note for Rs. 700. But do these facts themselves conclude that prosecution is necessary and expedient in the interests of justice?
In my view, this matter has to be considered apart from the prima facie case of the offence having been made out. The guilt of the accused which could be established is not the only question that is relevant when the court has to form an opinion as to the expediency of prosecution in the interests of justice. The following observations in , if I may say so with respect, may be usefully
referred to in this context:
"Restricting ourselves to a case where the offence consists of intentionally giving false evidence in any stage of judicial proceeding it is no doubt true that as under S. 476, it is the court which disposes of such judicial proceeding which primarily has to act under S. 479-A. There does not appear to be any real distinction between S. 476 and S. 479-A as to the court which can take action under S. 476 the action may proceed suo motu or an application while under S. 479-A no application seems to be contemplated. But there is nothing in this provision which makes a distinction between flagrant offences and offences which are not flagrant or between serious offences and offences which are not serious. For exercising the powers conferred by this section the court has in the first instance to form an opinion that the person against whom complaint is to be lodged has committed one of the two categories of offences referred to therein. The second condition is that the court has come to the conclusion that for the eradication of the evils of perjury and fabrications of false evidence and in the interests of justice it is expedient that a witness should be prosecuted for an offence which appears to have been committed by him. Having laid down these conditions, S. 479-A prescribes the procedure to be followed by the court. 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 a discretion not to make a complaint. But it does not follow from this that it can later on resort to S. 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 of justice to made an enquiry into the offence committed by the witness."
That is after forming an opinion as to the existence of prima facie case, the court will have to consider further, whether it is expedient to launch prosecution in the case in the interests of justice. This, in my view will be on general grounds without reference to the particular complainant or particular offender. The bare fact that it is noticed later that false evidence has been given in a proceeding, in my view, will not be sufficient for concluding expedience of prosecution. No doubt, perjury, falsehood and frauds when detected in the course of judicial proceedings must be punished and punished severely. The courts will not lightly look on litigants obtaining benefit by foul means or witnesses who perjure themselves to help their party. But before launching prosecution, one has to bear in mind that hundreds of actions are tried yearly in which the court finds the evidence irreconcilably conflicting and wherein one or the other side must have wilfully and deliberately perjured. The Courts do often pronounce on the falsity of evidence where coming to findings. If prosecution is to be launched in every case, and particularly at the instance of the opposite party, then there will be no limit to litigation between the parties. The danger of parties vindictively proceeding against their opponents by initiating proceedings under S. 476, Cr.P.C. has to be kept in mind. This aspect of the matter must make the court pause and consider the expediency of prosecution In a particular case with reference to its facts and not launch prosecution at the instance of parties in every case where perjury is discovered.
(8) Now, in the present case, it must be noticed that the first court itself has held that an offence punishable under S. 210, I.P.C. has not been made out. Though it was the case of the defendant in O. S. 588 of 1959 that the promissory note was fabricated on a representation that an endorsement of payment was being taken on the promissory note for Rs.. 700, a perusal of the cross-examination of the plaintiff in that case would show that no attempt was made to make out this plea. The present petitioner had, in the chief examination itself, stated that the defendant had not executed a promissory note for Rs. 700 and had not paid Rs. 500 towards the same. There is not even a suggestion in the cross-examination of the plaintiff with reference to this part of the evidence putting forward the defendant's own version in the matter which she has pleaded in the written statement.
The cross-examination was directed elaborately to the capacity of the plaintiff of advance moneys and the only question put to the plaintiff which may relate to the particular defence is apparent from the answer elicited: 'It is not true that Ex. A. 1 is forged.' The cross-examination was not directed to showing in those proceedings that the plaintiff was deposing falsely when he stated in chief-examination that there was no promissory note for Rs.. 700. What prompted the defendant for adopting such an attitude in the cross-examination one need not speculate now. But the fact remains that in those proceedings there was no specific cross-examination of the denial by the plaintiff of the promissory note for Rs. 700. A perusal of the judgment in O. S. 588 of 1959 shows that the statement in question has not materially affected the decision in the case. The court has only set out the denial by the plaintiff of the promissory note for Rs. 700. As already stated, the defendant had not placed evidence on record in that case from which an inference could have been made that the promissory note for Rs. 2000 had been fabricated. The judgment was allowed to become final.
In the circumstances, it cannot be said that this denial of the promissory note for Rs. 700 by the plaintiff in the former proceeding had any material bearing in these proceedings. Whatever it may be, when he later instituted the suit and withdrew it, he had lost the money due thereunder, if any was due to him. The withdrawal of the latter suit which had been inconsistent with the statement in the earlier proceeding is a matter which the court may properly take into consideration in considering the expediency of launching prosecution. As already stated, the courts below have not paid proper attention to the consideration of the expediency of prosecution. In my view, this failure has vitiated the order of the courts below. This court would not ordinarily interfere under S. 115 C.P.C. with the exercise of discretion by the courts below. But when the exercise of discretion is vitiated by failure to bear in mind the principles on which the discretion should be exercised and material grounds that could affect the exercise of discretion have been lost sight of, this court can properly interfere. In my view, the interests of justice do not require that a complaint should be made in this case.
(9) In the result the order in O. P. 5 of 1961 directing the filing of a complaint is set aside and this revision is allowed. There will be no order as to costs.
(10) Revision allowed.