Baharul Islam, J.
1. This is an application under Section 476 of the Code of Criminal Procedure. There are three petitioners. Petitioner No. 1 is a Satra, petitioner No. 2 is the Satradhikar of the Satra. and petitioner No. 3 is the alleged lessee of the Satra.
2. The facts of the case, briefly, are as follows:
The petitioners, as plaintiffs, instituted Title Suit No. 21 of 1971 in the Court of the Assistant District Judge, Jorhat, against opposite party No. 2, M/s. Kothari Plantations and Industries Ltd-for restoration of Khas possession of the suit properties after evicting the defendant therefrom, for compensation and for appointment of a Receiver. Opposite party No. 2 filed a written statement and contested the suit. In the suit the petitioners filed an application on 31-1-1972 under Order 40, Rule 1 of the Code of Civil Procedure for appointment of a Receiver on the allegation that there was deterioration of the tea bushes for want of proper care, cultivation and manuring, for removal of seedlings and fencing, illegally felling and selling of trees from the suit land. The Assistant District Judge was hearing the application for appointment of Receiver. The petitioners examined six witnesses in support of their case for appointment of a Receiver on four dates, namely 26-6-1972 27-6-1972. 18-7-1972 and 10-8-1972. The next date of hearing was fixed on 11-11-1972, but the hearing was adjourned first till 18-11-1972 and then again till 22-11-1972, both at the request of opposite party No. 2. On 21-11-1972 the petitioners filed an application dated 18-11-1972 and served a cow thereof on counsel for opposite party No. 2. In that application they prayed for hearing argument and for passing 'without further delay' an order appointing a Receiver. On 22-11-1972 opposite party No. 2 examined two witnesses who were cross-examined by the petitioners and the case was fixed on 27-11-1972 for hearing of the aforesaid petition as well as the objection of defendant No. 2 thereto. On 27-11-1972 both parties appeared and the petition dated 18-11-1972 was heard and the case was adjourned till 30-11-1972 for orders.
3. On 27-11-1972 opposite party No. 1 filed an application before this Court under Sections 24 and 151 of the Code of Civil Procedure for transfer of the suit, namely Title Suit No. 21 of 1971, from the Court of the Assistant District Judge, Jorhat. to any other Court of any other District. That application was registered as Civil Misc. Case No. 3 of 1972. The application was heard and disposed of by the learned Chief Justice on 27-11-1972. The application was rejected.
3-A. A copy of the transfer petition has been annexed to this petition and marked as Annexure 'C'. That application was supported by an affidavit sworn by opposite party No. 1. It is alleged by the petitioners that in that petition in paras 22, 29 and 33 the opposite parties made false allegations and have perjured in the Court and are liable to prosecution for offence under Section 193 of the Indian Penal Code. The aforesaid three paragraphs may be quoted:
22. That on 18-11-1972 the plaintiff opposite parties filed an application without giving any copy on that day. to the learned Court requesting him not to allow the petitioner to Rive any evidence and pass orders immediately for appointment of receiver..
29. That the defendant petitioner has now come to learn that the plaintiff opposite party No. 3. Shri Makhan Chandra Savapandit who is said to be appointed lessee by the plaintiffs 1 and 2 is the great friend of the present Assistant District Judge and the defendant petitioner apprehends that they will not Ret a fair trial..
33. That on 22-11-72 the learned Assistant District Judge openly expressed that defendant petitioner is merely a trespasser and has no right to stay for a moment. In face of the attitude of the learned Assistant District Judge, the defendant-petitioner's lawyer felt quite helpless and the defendant apprehends that the defendant will not get any fair trial of the suit.
The petitioners state that no application was filed on behalf of the petitioners on 18-11-72 as stated in para. 22 of the transfer petition. They also state that they did not file any application requesting the Court 'not to allow the petitioner to give any evidence and pass orders immediately for appointment of Receiver'. They allege that on 21-11-72 the petitioners filed an application dated 18-11-72 which was numbered as petition No. 2640 and a copy of the said application was duly served on the opposite party No. 2 on 21-11-72, and that there was no prayer in that application for stopping the opposite party No. 2 from giving evidence or for passing orders immediately for appointment of a Receiver. With regard to the allegations made in para. 29 of the transfer petition the petitioner state that not to speak of petitioner No. 3 and the Assistant District Judge. Shri R. Hussain being great friends, the petitioner No. 3 had or has no acquaintance with Shri R. Hussain at all. With regard to the allegations made in para, 33 of the transfer petition the petitioners state that the Assistant District Judge did not at any stage of the proceeding express the view that 'defendant petitioner is merely a trespasser and has no right to stay for a moment.' According to the petitioners the allegations made by the opposite partes were deliberately false and perpetrated with a view to setting transfer of the suit from the Court of Shri R. Hussain, learned Assistant District Judge before whom the suit was pending.
4. At the outset Shri P. Choudhury. learned Counsel appearing for the opposite parties, raises two preliminary objections. He first submits that this Court has no jurisdiction to hear the present application and that it can be heard only by the learned Chief Justice who heard the transfer petition and before whom the alleged perjury was committed. On the contrary Shri B. C. Barua. learned Counsel for the petitioners, submits that there is no bar for any Bench of this High Court to hear this application.
5. Section 476 of the Code of Criminal Procedure provides that 'any civil, revenue or criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an enquiry 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....' Shri Choudhuri submits that the use of the first word 'Court' followed by the expressions as 'that Court' and 'such Court' shows that it is that Court, namely, in the instant case, the Court of the Chief Justice, that may make a complaint and not this Court. It is difficult to accept the contention of learned Counsel. A High Court may have several Benches and any one Bench may hear a case in which a perjury is committed. But subsequently when an application is made under Section 476 that Bench or that Judge before whom the perjury was committed, may be permanently unavailable for one reason or another. In that case no application under Section 476 can possibly be filed if the submission of learned Counsel is accepted. In my opinion, in the context of this case, the 'Court' means the High Court and the application under Section 476 may be heard by any Bench of the High Court and the alleged perjury is committed in the High Court. The preliminary objection is overruled.
There is another practical difficulty in this case in transferring the matter to the Court of the learned Chief Justice. Shri Prashanta K. Goswami. Advocate, son of the learned Chief Justice, has filed the present application on behalf of the petitioners. As a practice the learned Chief Justice does not hear any case in which his son. Shri Prashanta K. Goswami. is engaged.
6. The second preliminary objection of learned Counsel is that in view of Section 479-A of the Code of Criminal Procedure the present application under Section 476 is barred. The law on the point is well settled by the Supreme Court It has been held in : AIR1963SC816 as follows:.This section (Section 476-A) provides that notwithstanding anything contained in Sections 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, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interest of justice 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 therefor and may. if it so thinks fit, after giving the witness an opportunity of being heard make a complaint thereof in writing and forward it to a Magistrate of the First Class having jurisdiction to deal with the offence. Sub-section (6) of Section 479-A provides that no proceedings shall be taken under Sections 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 Section 479-A. Thus bearing in mind the non obstante clause at the commencement of Section 479-A and the provisions of Sub-section (6) it would follow that only the provisions of Sub-section (1) of Section 479-A must be resorted to by the Court for the purpose of making a complaint against a person for intentionally giving false evidence or for intentionally fabricating false evidence at any stage of the proceeding before it....
The inevitable effect of these provisions is to exclude the provisions of Sections 476 to 479 in respect of offences which are dealt with specifically in Sub-section (11. Restricting ourselves to a case where the offence consists of intentionally giving false evidence 'in any stage of judicial proceeding' it is no doubt true that as under Section 476 it is the Court which disposes of such judicial proceeding which primarily was to act under Section 479-A. There does not appear to be any real distinction between Section 476 and Section 479-A as to the Court which can take action, Under Section 476 the action may proceed suo motu or on application while under Section 479-A no application seems to be contemplated.... For exercising the powers conferred by this section the Court has in the first instance, to form an opinion that the person against whom complaint is to be lodged has committed one of the two categories of offences referred to therein. The second condition is that the Court has come to the conclusion that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that a witness should be prosecuted for an offence which appears to have been committed by him. Having laid down these conditions Section 479-A prescribes the procedure to be followed by the Court. If the Court does not form an opinion that the witness has given intentionally false evidence or intentionally fabricated false evidence no question of making a complaint can properly arise. Similarly where the Court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interests of justice to make a complaint. But it does not follow from this that it can later on resort to Section 476 and make a complaint against the witness. For even under Section 476 the Court must, before making a complaint, be satisfied that it was expedient in the interests of justice to make an enquiry into the offence committed by the witness. It could not be urged that where the Court wilfully refused to record at the time of delivering the judgment or final order disposing of the proceedings before it that for the eradication of the evil of perjury and in the interests of justice it was expedient that the witness should be prosecuted for the offence which appears to have been committed by him it could later resort to the provisions of Section 476. The position must be the same where it fails to take action though it is open to do so. It is not as if,... that the Court has an option to proceed under either Section 479-A or under Section 476 and that if it does not take action under Section 479-A it can do so under Section 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 where as Section 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 Sections 193 to 195 and Section 471. Indian Penal Code are concerned the Court before which that person has appeared as a witness and which disposed of the case can alone make a complaint.
7. If. however, all the material* were not before the Court before which the perjury or the fabrication of false evidence was committed and as such proceedings under Section 479-A were not possible and some new fact is discovered after the said Court had delivered the judgment in the case, resort can be had to Section 476. In the case of Kuppa Goundan v. M.S.P. Rajesh : 1966CriLJ1503 the Supreme Court has held:
The scheme of Section 479-A is to enact a special procedure for the more expeditious and effective manner of dealing with certain cases of perjury and fabrication of false evidence by witnesses in the course of judicial proceedings. There is, however, a necessary condition for the application of Section 479-A, Criminal Procedure Code. The condition is that the Court before it delivers its judgment or at any rate at the time of delivering the judgment must 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, them certainly the Court cannot at the time of delivering its judgment, record any finding about the same, It is manifest that 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 are 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...the bar under Section 479-A (6) refers not to the legal character of the offence per se but to the possibility of action under Section 479-A upon the facts and circumstances of the particular case. If, for instance, material is made available to the Court after the judgment had been pronounced, rendering it clearly beyond doubt that a person had committed perjury during the trial and that material was simply unavailable to the Court before or at the time of judgment, it is very difficult to see how 'the Court could have acted under Section 479-A, Criminal Procedure Code....
8. Although the present petitioners were not before the learned Chief Justice, all the points raised by the petitioners before me were noticed and dealt with by the learned Chief Justice. With regard to the alleged statement made in para 22 of the transfer petition the learned Chief Justice has observed as follows:
The second ground (the first ground in the present application) given is that on 17-11-72 the plaintiff opposite party filed an application to the Judge not to allow the defendant (the petitioner herein) to adduce evidence in the case and straightway pass orders for appointment of a Receiver. It is complained that even a copy of the application has not been furnished to the other side. At any rate both the prayers of this petition No. 2640 of 18-11-72 appear to have been rejected by the learned Judge.
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Although technically the petition was set down for hearing on 27-11-72, which is today, the learned Judge can be said to have rejected the prayers of the plaintiffs while acceding to the prayer of the defendants to examine their witnesses and indeed two witnesses of the defendant were examined on 22-11-72 where as the prayer of the plaintiffs not to examine the witnesses of the defendant had been- made on 18-11-72, in their application No. 2640.' With regard to the second ground relating to the allegations made in para 29 of the transfer petition the learned Chief Justice has observed as follows:
The third ground (the second ground herein) which Mr. Choudhury submits is quoted at para. 29....
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This para is sworn by one Mohanlal Biyani, describing himself as Manager and constituted Attorney of the defendant-company. He has however sworn that the facts stated in para 29 are true to his knowledge although what has been quoted above shows that he learnt this 'now', from some source which was not disclosed. No value can be given to such a statement in an affidavit sworn before the High Court against a Judge.' With regard to the third ground relating to the allegations made in para, 33 of the transfer petition the learned Chief Justice has held as follows:
The fourth and last grievance of Mr. Choudhuri is that 'on 22-11-72 the learned Assistant District Judge openly expressed that defendant-petitioner is merely a trespasser and has no right to stay for a moment....
It may be however observed that a Judge who has already concluded evidence of the plaintiff's side, and was commencing the hearing of the defendant's side, after having examined witnesses may make some tentative observation which should not give rise in the defendant's mind such apprehension as to rush to the High Court for a transfer, I am inclined to hold that the application for transfer in this case does not at all merit consideration.
Excerpts quoted above from the order of the learned Chief Justice, copy of Which is annexed to the present application and marked as Annexure 'B', it is clear that all the allegations made by the present petitioners constituting the alleged offence under Section 193 of the Indian Penal Code were, in fact, available to and examined by. the learned Chief Justice. But he did not feel called upon to proceed against the opposite parties under Section 479-A of the Code of Criminal Procedure. In fact the most objectionable allegation in this case is that the petitioner No. 3 was a 'great friend' of the learned Assistant District Judge, Shri R. Hussain. In his order dated 1-12-72, as per Annexure 'D' to the present petition, the learned Assistant District Judge referred to the allegations made by the petitioners. He is. however, silent on the point of the alleged friendship although in the present application it has been alleged that the petitioner No. 3 has even no acquaintance with the learned Judge, In my opinion, therefore. proceedings under Section 476 of the Code of Criminal Procedure on the above allegations are barred by Section 479-A (6).
9. Shri Barua on the authority of AIR 1963 SC 1863 : 1963-1 Cri LJ 803 (supra), submits that some materials not available to the learned Chief Justice have come to light. The only new. material that comes to the notice of the petitioners, which was not available to the learned Chief Justice, when he disposed of the transfer petition is according to the petitioners, the date, 18-11-72, mentioned in para 22 of the transfer petition, I have examined the original application under, reference. The application was signed and dated 18-11-72 by the counsel for the plaintiffs, but it actually was filed on 21-11-72 as it appears from the seal of the Court on the petition. It also appears that a copy of the said petition was served on counsel of the defendants on 21-11-72. The allegation of the opposite party in the transfer petition that the application was filed and copy thereof served on their counsel on 18-11-72 can be easily explained; they were misled by the date 18-11-72 put by petitioner's counsel on the petition. The said allegations of the opposite party do not prima facie make out a case of perjury, so as to invoke court's jurisdiction under Section 476, Cr. P. C. which provides that the complaint may be lodged by the Court when such complaint is expedient in the interest of justice. The power of the Court to make a complaint under Section 476 is discretionary. On the last mentioned ground in instant case, the alleged offence of penjury was not prima facie made and therefore no complaint under Section 476 Cr. P. C. for prosecution of the opposite parties under Section 193. I. P. C. can be made.
10. In the result this application fails and is dismissed. The Rule is discharged.