S.K. Sen, J.
1. This appeal is directed against an order of Sri S.P. Chatterjee, Judge, City Civil Court, refusing to make a complaint against the respondent in respect of the offence of perjury alleged to be committed by him.
2. The appellants filed a suit in the City Civil Court on 24th June, 1959--Title Suit No. 335/1959--against the Corporation of Calcutta, Sukumar Bose (Superintendent, College Street Market), and some other persons, for recovery of possession of 73 sq. ft. of floor area of which they are alleged to have been wrongfully deprived by shifting of a partition wall, and for other reliefs. According to the case of the appellants, one K.L. Talan was the lessee of stall No. E. 95 and some other stalls of College Street Market in 1950 and had sublet separate and denned portions of ledges of the stall to different persons, including the plaintiff-appellants. On May 15, 1954 the lease of K.L. Jalan was determined, and the sub-lessees including the appellants applied to the Public Utilities and Markets Committee of the Calcutta Corporation for direct leases. On January 18, 1955, this Committee granted the prayers of these sub-lessees on certain terms and directed the subdivision of stall No. E95 into four small stalls with numbers and floor areas as follows:
E 95/1 ... 297 sq. ft.
E 95/2 ... 90 sq. ft.
E 95/3 ... 98 sq. ft.
E 95/4 ... 90 sq. ft.
The District Engineer, District II, prepared a partition plan accordingly, but the respondent SukumarBose, who as the Superintendent of the Market was to carry out the partition, shifted a portionof the partition wall in collusion with defendant No. 3 Mamator Ahmed and defendant No. 4 Md. Ahamed who had jointly obtained lease of stall E 95/1, so as to increase the area of stall E95/1 by 43 sq. ft. at the expense of stall No. E95/3 and 30 sq. ft at the expense of Stall No. E95/4, thus reducing the areas of stalls E 95/3 and E95/4 to 55 and 60 sq. ft. respectively. The appellants being lessees of stalls E 95/3 and 95/4 protested against such violation of the arrangement approved by the Markets Committee, but being unable to obtain relief, filed the suit in question.
3. On the same day as the suit was filed, the applicants prayed for a temporary injunction restraining defendants Nos. 1 and 2 from interfering in any manner with the trade and business of the appellants in stalls E 95/3 and E 95/4. In paragraph 5 of the petition with affidavit for such temporary injunction, the appellants stated that prior to the sanction of partition of stall No. E/95 by the Market Committee on or about January 18, 1955, there was another proposal for sub-division of the stall in agreement with the appellants, but that was dropped at the instance of defendant No. 2 (the respondent). The respondent, on behalf of defendants 1 and 2, filed an affidavit-in-opposition on 23rd July, 1959, wherein he stated in paragraph 7 that he denied each and every allegation made in paragraph 5 of the appellants' petition. The appellants on 9th September, 1959 filed an application requesting the learned. Judge to file a complaint against the respondent Sukumar Bose for having deliberately made a false statement in his affidavit dated the 23rd July, 1959 denying the earlier proposal for partition of the stall. In the course of that petition, the appellants stated that Sukumar Bose himself had submitted a report on June 5, 1954 making his first proposal for the sub-division of the stall, and that in an affidavit it sworn on 14th January, 1955 in connection with a suit on the Original Side of the High Court, Sukumar Bose had stated that he had submitted such a report; and that, therefore, the denial now made was deliberately false.
4. This application by the appellants was registered as an application under Section 476, Cri P. C. and the proceeding started on the application was numbered as Miscellaneous Judicial Case No. 601/59. The learned Judge after hearing both sides rejected the application for making a complaint for perjury against the respondent Sukumar Bose, by his order dated 27th February, 1960, accepting the explanation given by the respondent that in denying the allegations made in paragraph 5 of the appellants' petition dated 24th June, 1959, the respondent had intended to state that there was no such proposal for the sub-division of the stall in agreement with the plaintiff-appellants i.e. that the earlier proposal was a proposal made by him of his own accord, there being no question of any agreement with the plaintiffs.
5. In this appeal by the plaintiffs, the first point urged by Mr. Ajit Kumar Dutt for the appellants is that the learned Judge was in error m treating the appellants' application dated 9th September, 1959 as an application under Section 476, Cri. P. C. even though by a petition dated 11th September, 1959, the appellants indicated that the petition should be treated as one under Section 479-A, Cri. P. C. and order passed thereon at the time of delivery of judgment in the Suit. Section 479A applies to the offence of intentionally giving false evidence or intentionally fabricating false evidence for use at any stage of the judicial proceeding, i.e. to an offence under Section 193, I. P. C. Further, it applies to a person appearing before the Court as a witness. The point whether proceedings should have been taken under Section 476 or Section 479A therefore, involves two questions whether the offence alleged is one under Section 193 or Section 199, I. P. C. and whether the respondent who swore the affidavit dated the 23rd July, 1959 can be considered to have appeared as a witness before the Court.
6. As regards the first question, it would prima facie appear that the offence alleged comes under Section 199, I. P. C., for an affidavit is a declaration, and the Civil Court is authorised by the provisions of Order 19, Rule 2 of the Civil Procedure Code to accept evidence, m a proceeding started on an application, given in the form of affidavits. Mr. Dutt has referred to the decision--Ranjit Singh v. State of Pepsu (now Punjab), : 1959CriLJ1124 in support of his contention that the offence would come also under Section 193, I. P. C. Ranjit Singh filed an affidavit in a writ petition proceeding before the Pepsu High Court, and the affidavit was found to contain a false statement of fact. The Supreme Court repelled the contention that if a person is not bound by law to make an affidavit, he may escape liability under Section 193, I. P. C.; and observed that the opening words of Section 191, I. P. C. 'whoever being legally bound by an oath or by an express provision of law to state the truth....' mean that whenever in a court of law, a person binds himself by oath to speak the truth, he is liable under Section 193, I. P. C. if he makes a false statement; and that a person giving evidence by affidavit before an officer of the High Court authorised in this respect is subject to Section 14 of the Oaths Act and has bound himself by oath to speak the truth, and he is therefore, liable to punishment under Section 193, I. P. C. when he has made a false statement in his affidavit. This decision practically renders Section 199, I. P. C.superfluous; but in view of the decision, it must be held that the offence alleged to have been committed by the respondent comes also within Section 193, I. P. C.
7. The question still remains whether a person giving evidence in the form of an affidavit is a person appearing before the Court as a witness. A person who has sworn an affidavit before the Commissioner of Affidavits appointed by the Court has not appeared in person before the Court unless the Court in exercise of his discretion has required his personal appearance for the purpose of cross-examination; in the present case, the respondent was not required to appear for the purpose of cross-examination. The fact that he may yet appear as a witness before the Court at the time of the hearing of the suit is not material to the decision of the question before us at this stage. In the circumstances, I would hold that the respondent cannot be described as a person who has appeared before the Court as a witness, and so one of the conditions under which proceedings under Section 479A might be taken is not satisfied. In this connection, I may refer to the decision State v. Ugan Singh, , where the same view was taken, viz.,
'the words 'appearing as a witness' in Section 479A convey the sense of physical appearance of a person as a witness before a Court of law..... The case of a person whose affidavit has been filed but who has not personally appeared as a witness does not fall therein'.
Mr. Dutt has referred to the interpretation of the term 'witness' in Section 5 of the Oaths Act, which was referred to by the Supreme Court in : 1959CriLJ1124 cited above; viz.,
'all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give evidence by or before any Court or person having by law or consent of parties, authority to examine such person or to receive evidence',
and the view of the Supreme Court that a person giving evidence by affidavit is a witness as above defined. In view of the definition, it is clear that the term 'witnesses' includes persons giving evidence before a Court as well as persons giving evidence whether orally or in the form of a declaration before, an authorised Commissioner of Affidavits or Commissioner appointed to examine a witness, or an arbitrator appointed by consent of parties. Section 479A, Cri. P. C. is however, limited to persons appearing before any Court as witnesses, and the fact that the term 'witnesses' by itself may include persons who have made affidavits filed before any Court, cannot be taken to mean that such persons are also persons appearing before any Court as witnesses.
8. I would, therefore, hold that the learned Judge of the City Civil Court was right in treating the appellants' application as one under Section 476, Cri. P C., and it would have been wrong to treat it as one under Section 479A, Cri. P. C.
(The rest of the judgment is not material for the purpose of reporting).
Amaresh Roy, J.
13. I agree.