P.C. Borooah, J.
1. This is an appeal under Section 476-B of the Code of Criminal Procedure against an order dated the 12th February, 1969 passed by Sri S. N. Mukherjee. Presidency Magistrate. 15th Court, Calcutta.
2. The appellant Lincoln. J. Willis was tried along with his son Oliver A. Willis alias Jambo before the learned Magistrate on a complaint filed by the respondent Shamsul Haque. Against the appellant there was a charge under Sections 427/114 of the Indian Penal Code and against his son there was a charge under Section 427 of the Indian Penal Code. The learned magistrate by his order dated 3-12-68 found both the appellant and his son guilty of the charges and convicted them accordingly. Against that order this Court was moved in revision, and in revision the order of conviction and sentence passed on the appellant was set aside, but the conviction and sentence passed on the appellant's son was maintained.
3. On the 5th February, 1969 the appellant Lincoln J. Willis filed a petition before the learned magistrate under Section 476 Criminal P. C. alleging inter alia that in the case namely. Case No. C 160 of 1968, the original copy of the General Diary Entry No 2702, dated 23-1-1968 lodged by one Sk. Ladla was produced by one Anil Kumar Saha of the Park Street Police Station, who deposed as P. W. 4 in the said case. That G. D. Entry was marked as Ext. 1. It was contended that the original copy of the said G.D. entry had been interpolated and for the word 'absence' the word 'presence' had been inserted. The appellant also mentioned that he had seen the duplicate copy of the said G. D. Entry kept in the Park Street Police Station and according to him it contained the word 'absence'.
4. The learned Magistrate by his impugned order dated 12-2-1969 rejected the application on two main grounds. The first ground was that the application was presented 64 days after the date of the judgment of the original case and the second ground was that in view of Section 479-A of the Code of Criminal Procedure the application was not maintainable because it was incumbent upon the Court to make the necessary finding at the time of the delivery of the judgment,
5. Mr. Lincoln. J. Willis has appeared before us in person. He has submitted before us that he applied for the certified copy of the relevant General Diary Entry on 27-12-1968 and obtained the copy on 3-1-1969 and thereafter he contacted the Officer-in-charge of the Bark Street Police Station and had a look at the carbon copy of the G. D. entry. There was thus a delay of 64 days in making his application to the learned Magistrate. Mr. Willis has produced the certified copy of the G. D. entry before us. As regards the question of applicability of Section 479-A of the Code of Criminal Procedure is concerned, where a document establishing falsity of evidence of a witness is brought to the notice of the Court after delivery of judgment the Court is. competent to proceed under Section 476, Criminal P. C. and Section 479-A, Criminal P. C. will not be a bar. In the instant case, it was brought to the notice of the learned Magistrate by the appellant after delivery of judgment that there has been some interpolation in Ext. 1 which was filed before the Court. The learned Magistrate should therefore have held the necessary enquiry under Section 476, Criminal P. C.
6. We called upon the Officer-in-charge. Park Street Police Station to produce the original G. D. entry (Ext. 1) as well as the carbon copy. Looking at the carbon copy it appears the word 'absence' is there but in the original copy the word 'presence' is written in deeper pencil. The learned Magistrate will, therefore, hold an enquiry under Section 476, Criminal P. C. and will proceed in accordance with law.
The appeal is accordingly allowed. The order of the learned Magistrate dated 12-2-1969 is set aside. Let records along with the original as well as the carbon copy of the General Diary Entry No. 2702. dated 23-1-1968, produced by the Officer-in-charge, Park Street Police Station be sent down immediately and the learned Magistrate will proceed expeditiously to dispose of the matter.
7. I agree.