1. This is an application to revise the order of the Sessions Judge of Nellore refusing to withdraw a complaint of the Joyit Magistrate for perjury. The only ground urged by Mr. Ethiraj for the petitioner is that the Joint Magistrate who made a complaint of perjury did not record a finding that the offence of perjury had been committed and that in the interests of justice it was necessary that an inquiry should be made into the offence. Section 476 requires that if a civil, revenue or criminal Court thinks that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the First Class having jurisdiction. Before a complaint is made it is necessary that a Court which thinks that an offence mentioned in Section 195, Sub-section (1), Clause (b) or Clause (c) has been committed should record a finding to that effect and after recording such finding may make a complaint. What happened in this case was that an affidavit was put in by the petitioner before the Joint Magistrate for the transfer of a case from the file of the Second Class Magistrate of Sulurpet on the ground that he was not likely to get a fair and impartial trial inasmuch as the Magistrate had in his possession cows belonging to a person who was a member of the faction opposed to that of the petitioner. The Joint Magistrate refused to transfer the case and made a note,
S. Muniswami Naidu, the village munsif of Mannar Polur, has given a false affidavit. His allegations are denied by the Sub-Magistrate and by the sworn affidavit of Guruswami Reddi. Separate action will be taken against him.
2. The Sessions Judge thought that this was a sufficient compliance with the provisions of Section 476 and observed that
if it be that a finding must be recorded before a complaint is lodged, I would be prepared to hold that the above constitutes such a finding and is sufficient.
3. What the Joint Magistrate recorded viz.: ' Separate action will be taken against him,' is not a sufficient compliance with the provisions of Section 476. The provision is not merely directory, but it is mandatory, for an appeal lies against the order of the Court and under Section 476(b) an appellate Court can either withdraw a complaint or direct a complaint to be made. That being so, it is necessary for the appellate Court to see what reasons the lower Court had for deciding to make a complaint under Section 476. It is not every case of perjury that should form the subject of an inquiry; but it is only when the interests of justice do require that a complaint should, be made, then and then only a complaint should be made. Though the Courts should be anxious to put down perjury as much as possible, it is not in the interests of justice that every false statement made by a witness in Court or in an affidavit filed in Court should be the subject of a charge for perjury. The learned Public Prosecutor contends that the failure of the Joint Magistrate to record a finding is only an irregularity, if at all, and that should not be held to vitiate the proceedings of the Magistrate. I am unable to accept this contention. When the section of the Code requires a certain thing to be done, it is not open to the Court to say that it is optional for a Court to do it or not; and it may be observed that Section 537 cannot apply to a proceeding under Section 476. That the provisions of the section should be strictly complied with is the view of the Calcutta High Court: vide Rajani Kanta Kayal v. Bistoomoni Dassi : AIR1927Cal718 . I, therefore, set aside the order of the Sessions Judge and direct the withdrawal of the complaint filed in the case. I do not think it necessary to ask the Magistrate to write a formal order, because the matter appears to be a very petty one and the interests of justice do not require that the petitioner should be prosecuted for perjury.