Full Judgment Text
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PETITIONER:
KUPPA GOUNDAN & ANR.
Vs.
RESPONDENT:
M.S.P. RAJESH
DATE OF JUDGMENT:
05/05/1966
BENCH:
ACT:
Criminal Procedure Code,1898 (Act 5 of 1898).s. 476-Trial
concluded-Maintainability of the complaint for perjury.
HEADNOTE:
At a trial, the appellants gave evidence against the
respondent. After the Conclusion of the trial the
respondent filed a petition in the court of the Magistrate
under s. 476(1) Criminal Procedure Code, praying for the
prosecution of the appellants for giving false evidence
under s. 193 Indian Penal Code, and adduced evidence in sup-
port of his contention. The Magistrate thought that in the
interest of justice the, appellants should be prosecuted and
accordingly filed a complaint. The appellants contended
that the complaint was not maintainable because the trying
Magistrate had not followed the procedure under s. 479-A,
Criminal Procedure Code and it was therefore not open to the
Magistrate to take recourse to the provisions of s. 476.
HELD:-The prosecution of the appellants under the
provisions of s. 476 Criminal Procedure Code by the
Magistrate after the conclusion of the trial was legally
valid and wag not affected by the bar of cl. (6) of s. 479-
A. Criminal Procedure Code. [377G]
The bar of cl. (6) will not apply to a case where perjury is
detected not merely with reference to the evidence adduced
at the trial but with reference to the evidence adduced in
some other distinct proceeding not then brought before the
court or because there is some other material subsequently
produced after the conclusion of the trial and delivery of
judgment which renders the prosecution for perjury essential
in the interests of justice. [377 F]
Shabir Hussein Bholu, v. State of Maharashtra, [1963] Supp.
I S.C.R. 501, explained and distinguished.
C.P. Kasi Thevar v. Chinniah Konar, A.I.R. 1960’Mad. 77 and
In re Gnanamuthu A.I.R. 1964 Mad. 446, approved.
Jai Bir Singh v. Malkhan Singh. A.I.R. 1958 All. 364,
Parsotam Lal Vir Bhan v. Madan Lal Bashambar Das, A.I.R.
1959 Punj. 145 and Amolak v. State. A.I.R. 1961 Rai. 220,
disapproved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION:- Criminal Appeal No. 69 of
1966.
Appeal by special leave from the judgment and order dated
December 9, 1965 of the Madras High Court in Criminal
Revision Case No. 1261 of 1964 and Criminal Revision
Petition No. 1235 of 1964.
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R. Thiagarajan, for the appellants.
Purshottam Trikamdas and T. V. R. Tatachari, for the
respondent.
374
The Judgment of the Court was delivered by
Ramaswami, J. The 2nd petitioner Kuppuswami lodged a a
complaint with Yercaud Police on October 12, 1963 alleging
that the respondent, M. S. P. Rajesh and other persons had
formed an unlawful assembly and committed offences of house
trespass, mischief and causing hurt at 10 p.m. on October
11, 1963. The complaint was the subject-matter of
investigation by the police who did not present a charge-
sheet against respondent, M. S. P. Rajesh but filed a
charge-sheet against 4 other persons under ss. 323, 325 and
448, Indian Penal Code in C.C. No. 3097/1963 in the Court of
Sub-Magistrat- 3, Salem. The case was tried by the Sub-
Magistrate who ultimately acquitted all the accused by his
judgment dated December 13, 1963. In the course of
evidence, at that trial the 1st petitioner was examined as
P.W. 1 and 2nd petitioner as P.W. 2 and it is alleged by the
respondent that the petitioner gave false evidence to the
effect that the respondent was also among the trespassers
and assailants and that he was armed with a gun which
another accused took from him. After the conclusion of the
trial the respondent filed a petition in the court of the
Magistrate under S. 476(1), Criminal Procedure Code alleging
that on October 11, 1962 he along with certain other
Directors had attended a meeting of the Board of Directors
of Chembra Peak Estate Ltd. from 4.30 p.m. to 5.15 p.m. at
Bangalore and that he was not at Yercaud on October 11,
1963, and prayed for the prosecution of the petitioners for
giving false evidence under s. 193, Indian Penal Code. The
respondent produced a, copy of the Draft Minutes of the
Board meeting and also cited certain witnesses in support of
his case. After considering the matter, the Sub-Magistrate
of Salem held- that he was satisfied that the respondent
could not have been present at the alleged occurrence on
October 11, 1963 at Yercaud and that P.W.s 1 and 2
deliberately committed perjury and implicated Mr. Rajesh as
among the assailants. The Sub-Magistrate thought that in
the interest of justice the petitioners should be prosecuted
under S. 193, Indian Penal Code and accordingly filed a
complaint against the petitioners under S. 193, Indian Penal
Code in the Court of District Magistrate (Judicial), Salem.
The petitioners contended, that the complaint was not
maintainable in law because the trying Magistrate had not
followed the procedure under s. 479-A, Criminal Procedure
Code and it was therefore not open to the Magistrate to take
recourse to the provisions of S. 476, Criminal Procedure
Code. By his order dated February 10, 1964 the District
Magistrate discharged the petitioners holding that the
complaint was not sustainable in view of the decision of
this Court in Shafer Hussain Bholu v. State of
Maharashtra(1). Thereupon the respondent filed Criminal.
R.C. No. 1261 of 1964 in the Madras High Court against the
order of the District Magistrate (Judicial), Salem. By his
375
judgment dated December 9, 1965 Anantanarayanan, J. set
aside the orders of the District Magistrate (Judicial) and
directed that the case should be taken up by the District
Magistrate and the trial proceeded with in accordance with
law.
This appeal is brought, by special leave, from the order of
the Madras High Court dated December 9, 1965 in Crl. R.C.
No. 1261 of 1964.
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The question of law arising in this case is-what is the true
meaning and scope of s. 476, Criminal Procedure Code in the
context of s. 479-A(1) and (6), Criminal Procedure Code with
regard to a prosecution authorised by a Court in respect of
an offence of prejury committed before it in the course of
the trial?
Chapter XXXV of the Code of Criminal Procedure prescribes
the procedure to be followed for prosecution of offenders in
case of certain offences affecting the administration of
justice. Section 4/6 sets out the procedure for prosecution
of offenders for offences enumerated in s. 195(1)(b) and (c)
of the Code of Criminal Procedure. If a Civil, Revenue or
Criminal Court is of opinion, that it is expedient in. the
interests of justice that an enquiry should be made into any
offence referred to in s. 195(1)(b) or (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 and forward
the same to a Magistrate of the first class having
jurisdiction. Section 476-A authorises a superior Court to
make a complaint where a Subordinate Court has omitted to do
so in respect of offences and in the circumstances mentioned
in s. 476(1). Section 476-B provides for a right of appeal
against the order making or refusing to make a, complaint.
Sections, 478 and 479 deal with the procedure which may be
followed in certain grave cases. Section 479-A which was
added by the Code of Criminal Procedure (Amendment) Act 26
of 1955 by the first sub-section (in so far as it is
material) provides as follows.
"479-A. (1) 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
37 6
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........................"
Sub-section (6) of this section enacts as
follows:-
"(6) No proceedings shall be taken under
sections 476 to 479 inclusive for the
prosecution of a person for giving or
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fabricating false evidence, if in respect of
such a person proceedings may be taken under
this section.
The scheme of s. 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 s.
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,
then 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. In the present case, the respondent
produced material before the trial court on December 23,
1963 after the conclusion of the trial that the petitioners
had given false evidence in the case and the respondent
produced the necessary documents along with an application
for proceeding against the petitioners under s. 476,
Criminal Procedure Code. Till those documents were produced
there was no opportunity or occasion for the magistrate to
form an opinion about the falsity of the evidence adduced by
the petitioners. It is, therefore, manifest that at the
time when the judgment was delivered the magistrate had no
material before him to form an opinion that the petitioners
had given false evidence. It is only after the respondent
had made his application on December 23, 1963 and brought
the necessary material to the notice of the court that the
falsity of the evidence of the petitioners became apparent
and the magistrate was in a position to form an opinion
about the falsity of the evidence given by the petitioners.
It is, therefore, clear that s. 479-A will not be applicable
on the facts of this case, and if the provisions of s. 479-A
will not apply on the facts of this case it follows that the
bar contemplated by cl. (6) of that section will not be
applicable. The reason is that cl. (6) can be invoked only
in cases in which
377
s.479-A(1) will be applicable. The crucial words of cl.
(6) are "if in respect of such a person proceedings may be
taken under this section". It is clear that the bar under
s. 479-A (6) refers not to the legal character of the
offence per se but to the possibility of action under s.
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 s.
479-A, Criminal Procedure Code at all. It cannot be
supposed that the legislature contemplated that such a case
of perjury, however, gross should go unpunished in such
circumstances. It appears to us that the true interpre-
tation of the language of cl. (6) of s. 479-A is that it
does not operate as a bar to the prosecution for perjury in
a case of this description. Take, for instance, the trial
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of ’A’ for the murder of ’B’ in the Sessions Court where
’C’, ’D’ and ’E’ gave evidence that they actually saw ’A’
committing the murder of ’B’. Suppose at the conclusion of
the trial and after delivery of judgment by the Sessions
Court ’B’ is found alive and there is incontestable evidence
to show that ’A’ was falsely charged for the murder of ’B’.
Is it to be contemplated that in such a case there is no re-
medy available to the Court to prosecute C, D, and E for
perjury under the provisions of s. 476, Criminal Procedure
Code, though action cannot be taken, in the circumstances of
the case, under s. 479-A, Criminal Procedure Code? In our
opinion, such a startling consequence was not contemplated
by Parliament and the bar of cl. (6) of s. 479-A was
intended only to apply to cases of perjury and fabrication
of false evidence in which the trying Magistrate could have
acted under s. 479-A(1). In other words, the bar of cl. (6)
will not apply to a, case where perjury is detected not
merely with reference to the evidence adduced at the trial
but with reference to the evidence adduced in some other
distinct proceeding, not then brought before the court or
because there is some other material subsequently produced
after the conclusion of the trial and delivery of judgment
which renders the prosecution for perjury essential in the
interests of justice. Applying the principle in the present
case we are of opinion that the prosecution of the
petitioners under the provisions of s. 476, Criminal
Procedure Code by the Magistrate after the conclusion of the
trial is legally valid and is not affected by the bar of cl.
(6) of s. 479-A, Criminal Procedure Code.
On behalf of the appellants Mr. Thiagarajan referred to the
decision of this Court in Shabir Hussein Bholu v. State of
Maharashtra(1). But the Principle of that decision does not
afford any assistance to the appellants in this case. It
appears that the
(1) [1963] Supp. 1 S.C.R. 501.
378
appellant in that care appeared as a witness in a jury trial
for murder. Before the Court he, gave a statement
contradictory to the ,one he had given before the committing
court. After the conclusion of the trial and delivery of
judgment the Sessions Judge passed a separate order for
prosecution of the appellant for intentionally giving false
evidence under s. 193, Indian Penal Code. It was held by
this Court that the provisions of s. 479-A had not been
complied with and. no cognizance could be taken of the
offence. Two conditions were laid down for the exercise of
the powers under s. 479-A, (i) the court must form an
opinion that the person has committed one of the two
categories of offences referred to in S. 479-A, and (ii) the
Court must come to the conclusion that for the eradication
of the evils of perjury etc. and in the interests of justice
it is expedient that the person be prosecuted. This opinion
and conclusion must be arrived at the time of the delivery
of the judgment or final order in the trial-, the court
cannot later on resort to S. 476 and make a complaint
against the witnesses. The provisions of s. 479-A were held
applicable to the case and the fact that the trial was with
the aid of a jury did not preclude the Sessions Judge from
recording the findings required by S. 479-A. While
considering whether action should be taken under s. 479-A it
was open to the Sessions Judge to say whether the evidence
tendered at the trial was true or false. It is manifest
that the material in that case was produced before the
Sessions Court for coming to the conclusion that the
appellant had committed perjury and so the procedure
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contemplated In s. 479-A(1) was applicable and since the
Sessions Judge did not proceed under that section, though he
could have done so, the bar contemplated by cl. (6) of s.
479-A operated and no action could have been taken under S.
476, Criminal Procedure Code. The ratio of that decision is
not applicable to the present case because the material
facts are different. It is necessary to add that in Shabir
Hussein Bholu v. State of Maharashtra(1) this Court observed
that if the Judge is unable to come to a conclusion that the
statement made at the trial is false then provisions of s.
479-A (1) would not be applicable. At page 512 of the
Report it was observed by this Court as follows:-
"But, for considering the applicability of s.
479-A(1) what hag to be borne in mind is that
in a jury trial it is possible for the Judge
to come a conclusion that the statement made
at the trial is false. If he comes to that
conclusion then, as rightly observed in
Badullah’s case (A.I.R. 1961 All. 397), he has
no option but to proceed under s. 479-A(1‘),
Cr. P.C. The question then is whether he could
act under this provision if he is unable to
form an opinion one way or the other as to
whether the evidence tendered at the trial is
false or the evidence before the committing
Magistrate is false. What would be the
position in such a case? If the proceed-
[1963] Supp. 1. S.O.R. 501.
379
ings before the committing Magistrate must be
held to be entirely separate proceedings then
we agree with the Allahabad High Court that s.
479-A.(1) would not apply."
There is divergence of opinion among the various High Courts
on the question of law presented for determination in this
case. In Jai Bir Singh v. Malkhan Singh and another(1), it
was held by Sahai, J. that the bar of s. 479-A(6) applies to
all cases of perjury, viz., (1) those where the perjury or
the fabrication of false evidence has been detected by the
court when the judgment is pronounced, and (2) cases where
the perjury or fabrication of false evidence does not come
to light till after the judgment has been pronounced and it
was not open to the Court to proceed under s. 476, Criminal
Procedure Code for prosecution in the latter class of cases.
The same view has been taken by the Punjab High Court in
Parshotam Lal L. Vir Bhan v. Madan Lal Bishambar Das(2) and
the Rajasthan High Court in Amolak v. State(1). A contrary
view has been expressed by the Madras High Court in C. P.
Kasi Thevar v. Chinniah Konar(4) and In re. Gnanainuthu(5).
For the reasons already expressed we are of opinion that the
decision of the Madras Court in C.P. Kasi Thevar v. Chinniah
Konar(4) and In re. Gnanamuthu(5) represents the correct
law on the point.
For these reasons we hold that there is no merit in this
appeal which is accordingly dismissed.
Appeal dismissed.
A.I.R. 1958 All. 364. (2) A.I.R. 1959 Punjab 145.
(3) A.I.R. 1961 Rajasthan 220. (1) A.I.R. 1960 Mad. 77.
(5) A.I.R. 1964 Mad. 446.
380