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A.S. Shaik Mohamed Maracaiyar Vs. C. Mohideen Kutty - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2131 of 1963
Judge
Reported inAIR1966Mad192; 1966CriLJ666; (1965)2MLJ227
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195, 476 and 479A; Indian Penal Code (IPC), 1860 - Sections 191, 192, 193, 463, 464, 465 and 471
AppellantA.S. Shaik Mohamed Maracaiyar
RespondentC. Mohideen Kutty
Cases ReferredBabulal v. State of Uttar Pradesh
Excerpt:
tenancy - fixation of rent - sections 195, 476 and 479a of criminal procedure code, 1898 and sections 191, 192, 193, 463, 464, 465 and 471 of indian penal code, 1860 - civil revision petition challenging order of rent controller - impugned order directed respondent (tenant) to file complaint against petitioner (landlord) for offences under section 191, 192, 193 and 465 - whether application of tenant maintainable - proceeding for filing complaint should be taken at stage when judgment or order in case is being pronounced - complaint not filed at time of delivery of judgment - there was undue delay in taking these proceedings against landlord - held, application of tenant not maintainable in view of section 479a. - .....of this section are special provisions relating to the offence of forgery and fabrication of false evidence by witnesses and are self-contained. section 479-a provides that the stage at which a proceeding for filing a complaint should be taken is the stage when the judgment or the order in the case is being pronounced. (5) the supreme court had occasion to consider the scope of s. 479a in shabir hussain v. state of maharashtra, : air1963sc816 . the facts in that case are these: the appellant before the supreme court, who was a witness for the prosecution, gave contradictory statements before the committal court and the sessions court during a murder trial. the sessions judge at the end of the trial passed an order directing the registrar of the sessions court for greater bombay to.....
Judgment:
ORDER

(1) This revision petition is filed by the landlord against the order directing a complaint to be filed under Ss. 195 and 476 Crl.P.C. against the landlord-petitioner for offences under Ss. 191, 192, 193 and 465 I.P.C.

(2) The Petitioner is the landlord of premises No. 206, Angappa Naick St., and the respondent is his tenant. The respondent filed H.R.C. 4968 of 1958 before the Chief Rent Controller for fixation of fair rent in respect of the said premises. The petitioner contested this application and in the course of the proceedings he filed Ex. R-4 purporting to be an office copy of the notice dated 28-2-1959 calling upon the respondent to furnish a list of his sub-tenants and the rents collected from them and Ex. R-5 by purporting to be a reply sent to the landlord by the tenant and said to have been signed by the dismissed clerk of the tenant stating that on an average about Rs. 400 was being collected from the sub-tenants. It was found after an elaborate enquiry that these two documents Ex. R-4 and R-5 were not genuine documents but had been fabricated by the landlord to support his case that a sum of Rs. 275 would be the fair rent. A fair rent of Rs. 200 per month was fixed after inspection of the premises. There was an appeal by the landlord, where also the learned Judge after discussing the evidence held that Ex. R-4 and R-5 were spurious documents. The matter came up in revision before Jagadisan and Srinivasan JJ. and the learned Judges while confirming the finding of the lower courts that Ex. R-4 and R-5 are spurious documents also observed that 'Instances where a party to an action is found to have produced forged and fabricated documents should not be allowed to pass mechanically but should be dealt with in an appropriate and deterrent manner'. After these proceedings came to an end, the tenant filed I.A. 678 of 1962 out of which this revision arises praying for an order directing the institution of a complaint under S. 195 and 476 Cri.P.C. against the landlord for the offences aforesaid. The Rent Controller found that an offence Under S. 196 read with S. 192 had been made out against the landlord and directed that a complaint be filed against him before the Chief Presidency Magistrate, Madras. On appeal filed by the landlord, the Second Judge, Small Cause Court, confirmed the finding of the Rent Controller. This revision petition is filed by the landlord against the dismissal of his appeal.

(3) Learned counsel appearing for the landlord petitioner contended before me that the application filed by the tenant for instituting a complaint against the landlord is not maintainable in view of S. 479A, Cri.P.C. which provides that a complaint ought to have been filed at the time of delivery of the judgment, and that S. 476 Cri P.C. is not also applicable. It is urged that there was undue delay of one year and ten months in taking these proceedings against the landlord. Further, it is contended that the Rent Controller has no jurisdiction to pass an order under S. 476 as he has become functus officio after the disposal by him of the application for fixation of fair rent.

(4) The main point for consideration is whether the application of the tenant is not maintainable in view of S.479-A Cri P.C. as a complaint was not filed at the time of delivery of the judgment. The provisions of this section are special provisions relating to the offence of forgery and fabrication of false evidence by witnesses and are self-contained. Section 479-A provides that the stage at which a proceeding for filing a complaint should be taken is the stage when the judgment or the order in the case is being pronounced.

(5) The Supreme Court had occasion to consider the scope of S. 479A in Shabir Hussain v. State of Maharashtra, : AIR1963SC816 . The facts in that case are these: The appellant before the Supreme Court, who was a witness for the prosecution, gave contradictory statements before the Committal Court and the Sessions Court during a murder trial. The Sessions Judge at the end of the trial passed an order directing the Registrar of the Sessions Court for Greater Bombay to take proceedings against the witness for prosecuting him for perjury. In pursuance of this order a notice was issued to the appellant requiring him to show cause why he should not be prosecuted under S. 193 I.P.C. for making contradictory statements regarding the same incident. After hearing the appellant's counsel, the Sessions Judge ordered the complaint to be filed. At the trial before the Chief Presidency Magistrate, the appellant raised an objection that the provisions of S. 479A Cri.P.C. had not been complied with by the Additional Sessions Judge and that consequently the Chief Presidency Magistrate could not take cognizance of the offence. The Chief Presidency Magistrate upholding the objection discharged the appellant. The revision preferred by the State was allowed by the High Court and the High court set aside the discharge of the appellant and remanded the case for the trial by the Chief Presidency Magistrate. The High Court while remanding the case observed that though the provisions of S. 479A Cri.P.C. had not been complied with, it was still open to the Chief Presidency Magistrate to take action on the complaint under Ss. 476 to 479 Cri.P.C. Against the order of the High Court the appellant preferred an appeal to the Supreme Court. Dealing with the scope of Ss. 479-A and 476 Cri P.C., the Supreme Court observed at page 820:

'It is not as if..... that the court has an option to proceed under either S. 479-A or under S. 476 and that if it does not take action under S. 479-A it can do so under S. 476. The jurisdiction of the court to make a complaint against a person arises only from the fact that that person has given false evidence or fabricated false evidence at any stage of the proceeding disposed of by it. The conditions required to be fulfilled by the court and the procedure to be followed by it for the purpose of exercising its jurisdiction and making a complaint are not to be equated with the conditions which give the court jurisdiction to make a complaint. From this it would follow that whereas S. 476 is a general provision dealing with the procedure to be followed in respect of a variety of offences affecting the administration of justice, in so far as certain offences falling under Ss. 193 to 195 and S. 471 I.P.C. are concerned, the court before which that person has appeared as a witness and which disposed of the case can alone make a complaint.' The Supreme Court held that the Chief Presidency Magistrate was right in discharging the appellant and set aside the order of the High Court remanding the case for trial by the Chief Presidency Magistrate.

(6) The Supreme Court also considered the scope of S. 479-A in Raghubir Prosad Dudhwalla v. Chamanlal Mehra, : 1964CriLJ489 and observed thus:

'The special procedure of S. 479-A is prescribed only for the prosecution of a witness for the act of giving false evidence in any stage of judicial proceedings or for fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. There is nothing in the section which precluded the application of any other procedure prescribed by the Code in respect of another offences. In applying the principle that a special provision prevails over a general provision, the scope of the special provision must be strictly construed in order to find out how much of the field covered by the general provision is also covered by the special provision. Examining the special procedure prescribed by S. 479-A in that light, it is important to notice that the act of intentionally giving false evidence in any stage of a judicial proceeding and the act of fabricating false evidence for the purpose of being used in any stage of a judicial proceeding mentioned in S. 479-A of the Cri.P.C. are the acts which are made punishable under S. 193 I.P.C. and cognate sections in Chapter XI...... It will be unreasonable to read into S. 479-A the meaning that where a person who appears to have committed on offence under S. 193 I.P.C.--by giving false evidence or fabricating false evidence--appears to have committed some other offence also, say forgery, for the very purpose of fabricating false evidence, complaint for such other offence also can be made under S. 479A, Cri.P.C.'

The scope of Ss. 479-A and 476 Cri P.C. was again considered in Babulal v. State of Uttar Pradesh, : 1964CriLJ555 . The facts there are the following: In a civil proceeding one Babulal, the appellant before the Supreme Court, gave false evidence and relied on a forged document in support of his case. Before the disposal of the suit the plaintiffs had filed an application for action being taken against Babulal for giving false evidence before the court. The munsif did not dispose of the application by his judgment deciding the suit. After the disposal of the suit, the plaintiffs moved the munsif for an order on their application. The Munsif held that no action could be taken against Babulal for the offence of intentionally giving false evidence as such action was barred by S. 479A but in his opinion it was expedient in the interests of justice that a complaint be filed against Babulal for offences under Ss. 463 and 471, I.P.C. Pursuant to this order, a complaint was filed against Babulal charging him with committing an offence under S. 471 read with S. 463 I.P.C. The order passed by the trial Court was confirmed in appeal by the District Judge and a revision challenging the order was dismissed by the High Court. The matter was then taken up in appeal by Babulal to the Supreme Court. The Supreme Court observed thus at Page 727:

'It is true that some of the ingredients of the act of fabricating false evidence which is penalised under S. 193 I.P.C. and of making a false document and thereby committing forgery within the meaning of Ss. 463 and 464 I.P.C. are common. A person by making a false entry in any book or record or by making any document containing a false statement may, if the prescribed conditions of S. 463 are fulfilled, commit an offence of forgery. But the important ingredient which constitutes fabrication of false evidence within the meaning of S. 192 I.P.C. besides causing a circumstances to exist or making a false document--to use a compendious expression--is the intention that the circumstance so cause is to exist or the false document made may appear in evidence in a judicial proceeding, or before a public servant or before an arbitrator, and lead to the forming of an erroneous opinion touching any point material to the result of the proceeding. The offences of forgery and of fabricating false evidence for the purpose of using it in a judicial proceeding are therefore distinct, and within the description of fabricating false evidence for the purpose specified in S. 479-A Cri P.C., the offence of forgery is not included. In any event the offence penalised under S. 471 I.P.C. can never be covered by sub-section (1) of S. 479A. Therefore for taking proceedings against a person who is found to have used a false document dishonestly or fraudulently in any judicial proceeding, resort may only be had to S. 476 Cri.P.C.'

Bearing in mind the principles laid down in the above decision of the Supreme Court, I am of opinion that the application made by the respondent for directing the institution of a complaint under Ss. 195 and 476 Cri P.C. against the petitioner for offences under Ss. 191, 192, 193 and 465 I.P.C. is not maintainable in view of S. 479-A. In this view, it is not necessary to consider the other points raised by the petitioner such as undue delay in preferring the application etc. But in view of the observations of the Supreme Court in : 1964CriLJ555 the respondent will be entitled to file a fresh application under S. 476 Cri P.C. for directions to file a complaint against the petitioner for offences under Ss. 463 and 464 I.P.C. without prejudice to the rights if any.

(7) The revision petition is allowed. No costs.

(8) Revision allowed.


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