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Joginder Nath Vs. Sham Lal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1976CriLJ1963
AppellantJoginder Nath
RespondentSham Lal
Cases ReferredKuppa Goundar v. M.S.P. Rajesh
Excerpt:
- .....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 interests 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.....
Judgment:
ORDER

Adarsh Sein Anand, J.

1. This revision petition has been filed against the judgment of the learned Additional Sessions Judge, Srinagar dated 27th June, 1974, whereby the appeal filed by the petitioner against the judgment of the learned Judge, Small Cause Court, Srinagar dated 16th November, 1973, refusing to initiate the proceedings against the respondent under Section 476, Criminal Procedure Code was dismissed,

2. With a view to determine and appreciate the controversy involved in this revision petition, it is necessary to take note of few admitted facts of the case. The respondent before me had filed a suit for the recovery of a sum of Rupees 1,200/- against the petitioner and another person on the basis of certain vouchers showing the purchase of certain goods by the petitioner and the other person from the respondent. The petitioner had appeared in the trial court and filed a writ-ten-statement. Subsequently, however, the petitioner absented himself and the case was proceeded ex parte against him. The learned Judge Small Cause Court, vide the judgment and decree dated 28th December, 1967, decreed the suit of the plaintiff which had been instituted by him on 4th of April, 1966.

An application was filed before the learned trial court for setting aside the ex parte decree, but the same was also dismissed. An appeal was thereafter taken by the petitioner before the learned District Judge, Srinagar who also dismissed that appeal on March 7th, 1972, thus, confirming the, judgment and decree of the trial court. Thereafter, the respondent took steps for the execution of the decree. During the pendency of the execution proceedings, the petitioner filed an application on 28-11-1972 before the learned trial Judge (who was also acting as the executing court) to take action against the respondent under Section 476, Criminal Procedure Code on the ground that the respondent had obtained the decree on the basis of some fabricated voucher. Since that application was rejected and an appeal against that order was also dismissed, the petitioner has come up to this Court in this revision petition.

3. The short question for determination before me is whether the learned trial court and the learned Sessions Judge, in refusing to initiate proceedings under Section 476, Criminal Procedure Code against the respondent passed an order which is illegal or perverse or is not otherwise warranted by facts and circumstances of the case and the law.

4. A perusal of the facts above noticed is quite suggestive of the fact that the petitioner, in seeking to invoke the provision of Section 476 Cr. P.C. by his application for initiating prosecution against the respondent, was not acting bona fide. I have gone through the record of the case and I find that neither in the application for setting aside the ex parte decree nor in the grounds of appeal before the District Judge against the order of refusal to set aside the ex parte decree, was any grievance made by the petitioner that one of the voucher's produced in the case by the respondent was a fabricated voucher. In the normal course of events, it was expected that he would have at once complained against the respondent for having produced a fabricated voucher. Had the petitioner been acting bona fide it was natural that he would have made a grievance on this score in the application, and the memorandum of appeal.

The petitioner, having failed to get the decree set aside, cleverly thought of this method of filing an application under Section 476, Criminal Procedure Code. Although under the section no time limit has been fixed for initiating proceedings but a delay of nearly five years cannot be lost sight off, It is elementary that no court can allow the initiation or continuation of criminal proceedings against a citizen which have not been brought bona fide. The criminal courts are not meant to be used as a tool for satisfying a private grudge of a litigant. Though a wide discretion is given to the court under Section 476, Criminal Procedure Code, but such discretion has to be< exercised with great care and caution, inasmuch as, in my opinion one of the objects of the section is to provide a safeguard against frivolous or vexatious prosecution of citizens,

5. The learned Counsel for the petitioner has submitted that his case is covered by the provision of Section 476, Criminal Procedure Code and the courts have erred in holding that Section 479-A, Criminal Procedure Code is applicable to his case and not Section 476, Criminal Procedure Code. To appreciate this argument it would be relevant to note the provision of Section 476, Criminal Procedure Code and Section 479-A, Criminal Procedure Code.

6. Section 476, Criminal Procedure Code provides:

When 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 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 Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable, may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate.

7. Section 479-A, Criminal Procedure Code reads as under:

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 interests 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 signed by the presiding officer of the court setting forth the evidence which, in the opinion of the court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate.

8. A combined reading of the two sections goes to show that whereas Section 476, Criminal Procedure Code is a general provision dealing with procedure to be followed in respect of certain offences affecting the administration of justice. Section 479-A is a special provision which deals with the procedure to be followed in oases where a person appearing before a Civil, Revenue or Criminal Court, as a witness, intentionally gives false evidence in any stage of the judicial proceedings or intentionally fabricates false evidence for the purpose of being used as such at any stage of the judicial proceedings. The application of Section 479-A, Criminal Procedure Code is restricted to a judicial proceeding but there is no such restriction in the application of Section 476, Criminal Procedure Code.

9. The non obstante clause at the commencement of Section 479-A, Criminal Procedure Code when read with the provisions of Sub-section (6) of Section 479-A Criminal Procedure Code makes it quite clear that resort can be had to the provisions of Section 479-A only and not to the provisions of Section 476, Criminal Procedure Code where a person gives intentionally false evidence or intentionally fabricates false evidence at any stage of a judicial proceeding. Indeed, Section 476, Cri. P. C. also deals with offences relating to intentionally giving of false evidence as well as the production of fabricated evidence, but then it is that court alone which disposes of those proceedings which has the jurisdiction to initiate the proceedings against a person giving false evidence or fabricating false evidence under the section.

10. In Shabir Hussain v. State of Maharashtra : AIR1963SC816 their Lordships of the Supreme Court categorically laid down that only the provisions of Sub-section (1) of Section 479-A, Criminal Procedure Code should be resorted to by a court for the purposes of making a complaint against a person who has intentionally given false or fabricated evidence at any stage of the judicial proceedings before it. Their Lordships went on to say that resort to the provisions of Section 476 to Section 476, Criminal Procedure Code is totally excluded, where an offence of the kind specified in Sub-section (1) of Section 479-A, Criminal Procedure Code is made out against a witness.

11. Again a Bench of five learned Judges of the Supreme Court in : 1964CriLJ555 , Babu Lal v. State of Uttar Pradesh, while considering the respective scope of Sections 476 and 479-A, Criminal Procedure Code observed as follows:

It is clear from the terms of Sub-section (6) of Section 479-A, that the procedure prescribed thereby alone applies if the case falls within Sub-section (1) of that section.

Thus, making it clear that the circumstances resort to Section 476, Criminal Procedure Code was misplaced.

12. In Baban Singh v. Jagdish Singh : 1967CriLJ6 their Lordships of the Supreme Court once again had an occasion to deal with the scope of provisions of Sections 476 and 479-A, Criminal Procedure Code. Their Lordships laid down as follows:

Section 479-A lays down a special procedure which applies to persons who appear as witnesses before civil, revenue or Criminal courts and do one of two things: (i) intentionally give false evidence in any stage of the judicial proceedings, or (ii) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceeding. The first refers to an offence under Section 191/193 and the second to that under Section 192/193 of the Indian Penal Code, In respect of such offences when committed by a witness, action under Section 479-A alone can be taken.......

13. From the discussion above and the law laid down in the above-noted authorities it clearly follows that in cases covered by provisions of Sub-section (1) of Section 479, Criminal Procedure Code resort must be had to the provision of Section 479-A, Criminal Procedure Code and not to the provisions of Section 476, Criminal Procedure Code In the present case, it is not disputed that Sub-section (1) of Section 479-A, Criminal Procedure Code applies to the facts and circumstances of the case of the petitioner. Under the circumstances the learned Sessions Judge was quite right in observing that the application under Section 476, Criminal Procedure Code was not maintainable.

14. Before parting with this judgment, in fairness to the learned Counsel for the petitioner, I must also deal with another authority of the Supreme Court in case Kuppa Goundar v. M.S.P. Rajesh : 1966CriLJ1503 relied upon by him. The learned Counsel for the petitioner has tried to show that the facts of the case in the present case were akin to the facts of the case which was before their Lordships of the Supreme Court. I am afraid this authority can give no assistance to the case of the petitioner In the first place their Lordships of the Supreme Court in the above noted case, came to a definite conclusion that the case of the appellant before their Lordships was not covered by the provisions of Sub-section (1) of Section 479-A, Criminal Procedure Code, and in the second place, on facts, their Lordships were satisfied from the documentary evidence produced by the appellant that the High Court should have initiated proceedings under Section 476, Criminal Procedure Code.

In the case before their Lordships, it appears that proceedings under Section 476, Criminal Procedure Code were sought to be invoked quite soon after the judgment was given on December 13, 1963, on the allegation that during the trial, culminating in the judgment dated 13th Dec. 1963, false evidence had been adduced, unlike the present case where the petitioner waited for over five years, to invoke the provisions of Section 476, Criminal Procedure Code. Even otherwise, as I have noticed above the provisions of Section 479-A (1), Criminal Procedure Code are clearly attracted and as such this decision, which is quite distinguishable on facts, cannot come to the aid of the petitioner. It is settled principle that the general provisions of Section 476, Criminal Procedure Code stand superseded by the special provision of Sub-section (1) of Section 479-A, Criminal Procedure Code and the procedure prescribed by that section and not the one under Sections 476 to 479, Criminal Procedure Code is to be followed.

15. Before concluding, I would like to observe that Section 479-A, Criminal Procedure Code was inserted in the Code by the amending Act with a definite purpose and object.

16. The purpose was, that the courts should curb the evil of perjury and that is why the Parliament in its supreme wisdom inserted Sub-section (6) to Section 479-A, Criminal Procedure Code which makes it clear that for the prosecution of a person who appears as a witness and gives false evidence, the provisions of this section shall apply and the provisions of Sections 476 to 479, Criminal Procedure Code inclusive will not apply.

17. The object of the section is not only to eradicate the evils of perjury in an expeditious and summary way (as against the dilatory procedure under Section 476, Criminal Procedure Code) but also to protect a witness from harassment against frivolous prosecution for perjury. Courts shall be reluctant to allow an unsuccessful litigant to take resort to proceedings under Chapter 35 of the Code where it is not satisfied about the bona fide of the applicant.

18. As a result of the above discussion I find that this revision petition is without any merits and I dismiss the same.


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