(1) This is a revision filed against the order of the District Magistrate, Ramanathapuram in Crl. R. P. No. 29 of 1958.
(2) The Circumstances under which this revision is filed are these: In C.C. No. 762 of 1958, on the file of the Sub-Magistrate of Tirupattur, the petitioner herein, i.e., Kasi Thevar, was the third accused. The respondent herein, i.e., Chinniah Konar was examined as prosecution witness 4 in the case. On behalf of the petitioner P.W. 4 was cross-examined and in the cross-examination a suggestion was put namely whether P.W. 4 did not file a tender in Keelasevalpatti Panchayat Board and whether the tender of the third accused (Petitioner) was not accepted in preference to that of P.W.4 and whether P.W. 4 did not give a petition against accused 3 in that case and the executive officer. The witness denied all these suggestion and stated that he filed a tender in Keelasevalpati and that it was wrong to suggest that the tender of the third accused was accepted. He also added that it is wrong that he gave a petition against the third accused and the executive officer regarding that matter. He denied that the is speaking to a falsehood regarding that matter. C.C. No. 762 of 1958 ended in acquittal. The order of acquittal was passed on 19-5-1958. About two months later i.e., on 16-7-1958, the petitioner herein i.e., Kasi Thevar, after obtaining the necessary documents, put in a petition before the Sub-Magistrate who tried C. C. No. 762 of 1958, i.e., before the Sub-Magistrate, Tirupattur, stating that the respondent herein has committed perjury in the previous case i.e., C. C. No. 762 of 1958, and that a complaint should be laid against him for the offence of perjury. The magistrate, after issuing notice to P.W. 4 in that case, that is, to the respondent herein, held an inquiry in the course of which the petitioner herein produced the relevant documents to establish that the respondent committed perjury in the previous case. The court, after satisfying itself that the respondent committed perjury in C. C. No. 762 of 1958 when he made the statement that the third accused's tender was not accepted in preference to his and that he made no complaint whatsoever, filed a complaint under S. 476, Criminal P.C. The Additional First Class Magistrate, Devakottai, before whom the complaint was filed, dismissed the complaint holding that this complaint should have been filed under S. 479A, Criminal P.C., and cl. (6) of S. 479A is a bar to proceedings under Ss. 476 to 479. Against the said order a revision was filed before the District Magistrate, who following the decision of the Allahabad High Court, in Jai Bir Singh v. Malkhan Singh, , confirmed the order of the First
Class Magistrate and dismissed the revision. It is against the said order that this revision has been filed.
(3) From the facts narrated above it is quite clear that when the Sub-Magistrate disposed of the case in C.C. No. 762 of 1958, i.e., when he delivered the judgment on 19-5-1958, there was no material from which he could have formed an opinion that the respondent had given false evidence. It was only a suggestion made by the petitioner herein to the respondent when he was in the witness box and the suggestion was denied by the witness. Beyond this suggestion and the denial by the witness there was no material brought to the notice of the court from which the court can form an opinion as to whether the witness was telling a falsehood or speaking to a truth. The suggestion may be well-founded or may be ill-founded. The denial may be right or may be wrong. It was in this state of uncertainty without any clinching circumstance to prove either way, that the evidence of the respondent as P.W. 4 has to be judged. Thus, at the time when the Sub-Magistrate delivered the judgment, it cannot be said that the magistrate had material to form an opinion that the evidence of the respondent as P.W. 4 was false.
(4) Section 479-A Crl. P. C., so far as it is relevant for the purpose of this case is as follows:
"Notwithstanding anything contained in Ss. 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 of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial
proceeding,.................................. 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 therefore 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 etc., etc.,"
Clause (6) of this section is as follows:
"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."
(5) It is pointed out by Mr. Srinivasagopalan appearing for the petitioner that the Magistrate could not have formed an opinion about the falsity of the evidence of P.W. 4 at the time of the delivery of the judgment; and, therefore, S. 479-A will not apply. Further under the provisions of clause (6) the bar to the proceedings under Ss. 476 to 479 Crl. P. C. comes in only when proceedings may be taken under the provisions of S. 479-A. If proceedings could not be taken under S. 479-A then the provisions of clause (6) do not operate as a bar proceeding under Ss. 476 to 479.
(6) It seems to me that there is considerable force in the above contention. Section 479-A, Crl. P. C., itself clearly states "When the court is of opinion that any person appearing before it as a witness has intentionally given false evidence, the court shall, at the time of the judgment or final order record a finding to that effect." The conditions, therefore, necessary for the application of S. 479-A are that the court before it delivers its judgment or at any rate at the time of delivering the judgment just form an opinion that a particular witness or witnesses, is or, are giving false evidence; if the court could not form any opinion about the falsity of the evidence of the witness appearing before it, then certainly the court cannot at the time of delivering its judgment, record any finding about the same.
A court can come to a conclusion that a witness is false only when there are materials placed before it to justify that opinion. If no materials were placed before the court to enable the court to form an opinion that a witness is giving false evidence, then certainly it could not form that opinion. From a mere suggestion and denial no court will ever come to the conclusion that a witness by his denial is giving false e evidence as the suggestion may be either well-founded or ill-founded.
The Petitioner herein at the time when he cross-examined the respondent was not in possession of the necessary documents by which he could confront the witness, that is, the respondent, and draw the attention of the court as to how in the light of these documents he has given false evidence. It is only after the judgment was delivered that the necessary documents which will establish the falsity of the evidence of the respondent were obtained and it is only after the obtaining of those documents and, after bringing them to the notice of the court in the enquiry on the petition filed by him. the falsity of the evidence of the respondent become apparent.
Till those documents were produced there was no opportunity or occasion for the magistrate to form an opinion about the falsity of the evidence of the witness. 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 pre-requisite 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 an opinion are not present in this case.
Section 479-A 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 cases to which S. 479-A will apply. In this view I must hold that the orders of the lower courts in dismissing the complaint are wrong.
(7) Learned counsel for the respondent relies upon the judgment of the Allahabad High Court in , (judgment of a singly
Judge); and the judgment of the Punjab High Court in Parshotam Lal v. Madanlal, , a decision of a Bench of that court. With great respect to the learned Judges of those High Courts. I am unable to agree with their reasoning as it seems to me that the section is very clear in its scope. The learned counsel also relied on three decisions of the Andhra Pradesh High Court and one decision of the Mysore High Court.
The three decisions of the Andhra Pradesh High Court are the decisions of Basi Reddi J. They are: In re, Ponneri Dasi Reddi, AIR 1958 Andh-Pra 657, Abdul Jabbar, In re, 1958-Mad LJ Crl 233: (AIR 1958 Andh Pra 469); and Muniamma In re, , and the decision of the Mysore High Court is Narajappa v. Chikkamamiah, 1958-Mad LJ Cr 491: (AIR 1959 Mys 117). From the three decisions of the Andhra Pradesh High Court it is quite clear that the witnesses after giving the statements under S. 164, Criminal P. C., went back on their statements when they came to court. There was, therefore, material for the court to come to the conclusion that the witness was giving false evidence. The cases, therefore, exactly fell within the provisions of S. 479-A and it was rightly pointed out in those decisions that in cases where S. 479-A applies, under the provisions of clause (6) there was a bar to the proceedings under Ss. 476 to 479. In 1958-Mad LJ Crl. 491: (AIR 1959 Mys 117), the facts fully justified the conclusion arrived at by the learned Judge.
There was one observations in the judgment of the Mysore High Court with which I must respectfully disagree. It is a judgment of M. Sadasiviah J. and the observation if at page 493 (of Mad LJ Cr): (at p. 118 of AIR). It is as follows:
"Once the person has appeared as a witness before the court, then, it will be provisions of S. 479-A of the Code that will be applicable and not any of the provisions contained in Ss. 476 to 479 of the Criminal Procedure Code".
With great respect, I must point out that this statement seems to be rather wide. It is not only that a person should appear as a witness in court but he must further by his evidence drive the court to form an opinion that he is giving false evidence. If at the time of the delivering of the judgment in the case the court could not form any opinion that the witness was giving false evidence, then, certainly, his mere appearance as a witness will not justify the court take action under section 479-A.
The section is limited in scope. But the observation seems to be very wide. I therefore respectfully dissent from that observation with this limitation namely that it is only when the court can form an opinion that the witness is giving false evidence, S. 479-A, Crl. P. C. will apply and not in all cases when a person appears as a witness.
(8) For the reasons mentioned above, I set aside the order of the lower court and restore the complaint before the Additional First Class Magistrate, and the case will be transferred to the file of some other First Class Magistrate by the District Magistrate for disposal according to law.
(9) Order set aside.