Full Judgment Text
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PETITIONER:
NARAYANSWAMI
Vs.
RESPONDENT:
STATE OF MAHARASHTRAS
DATE OF JUDGMENT30/04/1971
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
GROVER, A.N.
CITATION:
1971 AIR 1789 1971 SCR 588
1971 SCC (2) 182
ACT:
Code of Criminal Procedure, 1898-Section 479A sub-section
(1)-- Reasonable opportunity of being heard contemplated by
section not mandatory.
HEADNOTE:
The requirement under sub-section (1) of section 479A of the
Code of Criminal Procedure, of giving the witness an
opportunity of being heard after the recording of the
necessary findings and before making the complaint is not
mandatory. That step is required to be taken only if the
court thinks fit-a matter left to the discretion of the
trial court. The prosecution of the appellant is therefore
not vitiated because such an opportunity was not given.
[594F-G]
Dr. B. K. Pal Chaudhry v. The State of Assam, [1960] 1
S.C.R. 945 and Dr. Kuppa Goundan and Anr. v. M.S.P. Rajesh,
[1966] Supp S.C.R. 373, distinguished.
Rukmani Bai v. G. R. Govindaswamy Chetty, [1963] M.L.J. 421
and Re: Javvaji Uthanna, A.I.R. 1964 A.P. 368, referred
to.
[In the instant case adequate opportunity was given to the
appellant, before the findings were recorded to show cause
why he should not be prosecuted. Therefore the Court did
not find it necessary to express any opinion as to the
correctness of the observations of the Madras and Andhra
Pradesh High Courts in Rukmani Bai v. Govindaswamy Chetty
and In re Javvaji Uthanna that even though sub-section (1)
does not mandatorily require that any opportunity should be
given to the person complained against there is no reason
why the principle of audi alteram partem should not apply.]
[595D-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3 of
1969.
Appeal by special leave from the Judgment and Order dated
September 2, 4, 1968 of the Bombay High Court, Nagpur Bench
in Criminal Appeal No. 74 of 1968.
W. S. Barlingay and A. G. Ratnaparkhi, for the appellant.
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P. K. Chatterjee and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Hegde, J.--The only substantial question that arises for
decision in this appeal by special leave is as to whether
the requirements of Section 479-A of the Code of Criminal
Procedure have been complied with before instituting the
complaint from which
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this appeal arises and if they have not been complied with
whether the prosecution is vitiated ?
In July 1965, there was a dacoity within the limits of Rail-
way Police Station, Nagpur. Several properties belonging to
the Railways were stolen in the course of that dacoity.
During the investigation of that offence, the Railway Police
sought the assistance of the local police. Inspector
Khandagale (D. W. 1) who was incharge of the Tehsil police
station directed the appellant, the Sub-Inspector working
under him to assist the Railway Police in the investigation
of the case. Part of the investigation was carried on by
the appellant. Two of the persons arrested in connection
with that dacoity were Ambadas and Deorao. They are said to
have made certain statements on July 21, 1965. It is
further alleged that in pursuance of the information given
by Deorao, the police in the presence of the Panchas
recovered certain properties. The concerned panchnama was
attested by two witnesses viz. Pochanna and Abdul Gani.
After the investigation a charge-sheet was filed against
several persons including Ambadas and Deorao accusing them
of the commission of an offence under Section 395, I. P. C.
After preliminary enquiry the case was committed to the
court of Sessions, Nagpur and was tried before the
Additional Sessions Judge, Nagpur as Sessions Trial No. 8 of
1966 on his file. The trial of the case commenced on June
6, 1966. Pochanna, one of the Panch witnesses was examined
on June 9, 1966. He did not support the prosecution. Abdul
Gani, the other Panch witness also had been cited as a
witness but he was not present in court on June 9, 1966. On
June 10, 1966, one person who claimed himself to be Abdul
Gani, who had attested the panchnama. was examined. He
deposed that he had attested the panchnama and that he was
present at the time the recoveries were made. On June 11,
1966, the appellant was examined. The appellant deposed
that the person examined on the previous day was Abdul Gani
and that person had attested the panchnama in question.
Thereafter the case took a new turn. It appears that the
accused came to know that the person examined on June 10,
1966 was not Abdul Gani but one Dilawar and that the real
Abdul Gani had migrated from Nagpur and settled down at
Rajnandgaon. On enquiry their Counsel, Mr. Ingle came to
know that Dilawar who posed himself as Abdul Gani was
involved in a criminal case pending in the Munsiffs court in
Nagpur. After ascertaining all the facts. Mr. Ingle filed
an application before the learned trial Judge alleging that
the witness who posed himself as Abdul Gani and spoke in
support of the recovery panchnama was an imposter and that
he was not the real attestor to the panchanmma Therein he
further stated that the name of that person was Dilawar and
be was the son of one Munirsha. Thereafter the learned
trial judge recalled the said witness and further examined
him on June
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14, 1966, At that time the witness confessed that he was not
Abdul Gani and that he did not attest the panchnama, but he
had been compelled by the appellant to depose falsely.
After the examination of this witness, the learned trial
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judge being prima facie of the opinion that the appellant
had given perjured testimony and that he has fabricated
false evidence, issued a notice to the appellant to show
cause why he should not be prosecuted for perjury and for
fabricating false evidence for the purpose of the case. The
appellant showed cause on June 16, 1966. In the statement
filed by him he again asserted that the person examined on
June 10, 1966 was Abdul Gani, the attestor of the panchnama.
He denied the fact that the said witness is Dilawar. He
went further and averred that the witness had been purchased
by the accused and that he has deposed falsely that he is
not Abdul Gani. Thereafter the appellant was recalled and
further examined. During the course of his examination he
reiterated the stand taken by him in his written statement.
In the course of his cross-examination, it was elicited from
him that he knew the person concerned for over three years,
thereby the possibility of the appellant giving incorrect
evidence due to misconception was ruled out. After the
appellant was reexamined, the accused produced a person in
court who according to them was the real Abdul Gani. That
person deposed that he is Abdul Gani and that he was the
person who had attested the panchnama. The learned trial
Judge took his sample signatures and compared the same with
the signature found on the panchnama. He found them to
tally with one another. After the conclusion of the trial,
the learned trial judge acquitted all the accused and
directed the prosecution of Dilawar and the appellant under
Sections 195 and 196, I. P. C. At this stage it may be noted
that in the course of his judgment in the dacoity case, the
learned trial judge gave a finding that Dilawar and the
appellant intentionally gave false evidence in the case and
further the appellant had intentionally fabricated false
evidence for the purpose of being used in that case. He
also opined that for the eradication of the evils of perjury
and fabrication of false evidence and in the interest of
justice it is expedient that Dilawar and the appellant
should he prosecuted for the offences committed by them. On
the basis of that complaint, the appellant and Dilawar were
tried, convicted and sentenced to suffer rigorous imprison-
ment for three years. The appellant was convicted both for
perjury as well as for fabricating false evidence. Under
each head, he was awarded a sentence of three years rigorous
imprisonment but the two sentences were ordered to run
concurrently. Dilawar did not appeal against his conviction
and sentence. The applellant appealed against to the High
Court of Maharashtra. His appeal was summarily dismissed.
Thereafter he appealed to this Court after obtaining special
leave. In that appeal this court came to the conclusion
that the High Court should not have
591
:summarily dismissed the appeal as arguable questions of
fact and law arose for consideration. It accordingly set
aside the order of the High Court and remitted the case to
the High Court with a direction tore-admit the appeal and
dispose of the same according to law. Accordingly the
appeal was again heard by the Nagpur Bench of the
Maharashtra High Court. The appeal has again been dismissed
by the High Court. We have now to consider the correctness
of the decision of the High Court.
So far as the merits of the case are concerned, there is
little to be said in favour of the appellant’s case. There
is hardly any doubt that Dilawar had posed himself as Abdul
Gani. It is also clear from the evidence on record and
from the circumstances of the case that the appellant was
responsible for inducing Dilawar to pose as Abdul Gani. All
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that was said in favour of the appellant by Dr. Barlingay,
his learned Counsel was that the possibility of the
appellant innocently thinking that Dilawar was the real
Abdul Gani cannot be ruled out. We are unable to accept
this contention. It is clear from the admissions made by
the appellant during the Sessions Trial which admissions
have been brought on record as evidence in the present case
that he knew Abdul Gani very well. Therefore there was no
occasion for him to make any mistake. The appellant had
strongly asserted in his statement in reply to the show
cause notice as well as in his deposition in court that the
person who was examined on June 10, 1966 was the real Abdul
Gani and that he was the person who had attested the
panchnama. Under these circumstances, the plea that the
appellant gave evidence under an erroneous impression cannot
be entertained. It is clear that the appellant has no
regard for truth.
We also do not find any merit in the contention that the
explanation given by the appellant in the dacoity case as
well as his evidence in that case are inadmissible, in the
present proceedings. Admissions made in the explanation
given and in the deposition are relevant and admissible in
the present case. An admission is a substantive evidence,
though it is open to the person who made the admission to
show that the fact admitted is not correct. In the absence
of any such proof the admission has to be considered as an
important piece of evidence.
As mentioned at the outset the only important question for
decision in this appeal is whether the requirements of
Section 479- A. Code of Criminal Procedure have been
complied with before filing the present complaint. Section
479-A was incorporated into the Code of Criminal Procedure
by Act 26 of 1955. That section reads :
"479-A. Procedure in certain cases of false
evidence.
(1) Notwithstanding anything contained in
sections
592
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 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 therefore
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 :
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Provided that where the Court making the com-
plaint is a High Court the complaint may be
signed by such officer of the Court as the
Court may appoint.
Explanation.-For the purposes of this sub-
section, a Presidency Magistrate shall be
deemed to be a Magistrate of the first class.
(2) Such Magistrate shall thereupon proceed
according to law and as if upon complaint made
under Section 200.
(3) No appeal shall lie from any finding
recorded and complaint made under sub-
section(1).
(4) Where, in any case, a complaint has been
made under sub-section (1) and an appeal has
been preferred against the decision arrived at
in the judicial proceeding out of which the
matter has arisen the hearing of the case
before the Magistrate to whom the complaint
was forwarded or to whom the case may have
been transferred shall be adjourned until such
appeal is decided ; and the Appellate Court,
after giving the person against whom the com-
plaint has been made an opportunity of being
heard, may, if it so thinks fit, make an order
directing the withdrawal of the complaint; and
a copy of such order shall be sent to the
Magistrate before whom the hearing of the case
is pending.
593
(5) In any case, where an appeal has been
preferred from any decision of a Civil,
Revenue or Criminal Court but no complaint has
been made under sub-section (1), the power
conferred on such Civil, Revenue or Criminal
Court under the said sub-section may be
exercised by the Appellate Court; and where
the Appellate Court makes such complaint, the
provisions of sub-section (1) shall apply
accordingly, but no such order shall be made,
without giving the person affected thereby an
opportunity of being heard.
(6) No proceedings shall be taken under
Section 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
this section".
This section was introduced into the Code with the idea of
eradicating to the extent possible the evils of perjury and
fabrication of false evidence a widespread evil that is
corroding our judicial system. The then existing procedure
in the matter of prosecuting those who give false evidence
or use fabricated evidence in judicial proceedings was found
to be tardy and ineffective. Therefore power was given both
to the trial court as well as to the appellate court to
forthwith complain against witnesses guilty of perjury or
fabricating false evidence without having recourse to the
procedure laid down in Sections 476 to 479 of the Code of
Criminal Procedure. But at the same time the legislature
felt that before proceeding against those persons the court
must form an opinion that the witness has either given
intentionally false evidence or has intentionally fabricated
false evidence and further must form an opinion that it is
expedient in the interests of justice that the witness
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should be prosecuted for the offence committed by him.
It is clear from the findings given by the learned trial
Judge in the dacoity case that he had come to a prima facie
conclusion that the appellant had given false evidence and
further that he had intentionally fabricated false evidence
for the purpose of being used in that case. He had also
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 was expedient that the appellant
should be prosecuted for the offences committed by him.
Thus far there is no difficulty. But according to the
appellant, the complaint is vitiated because after arriving
at the findings in question and before filing the complaint,
the learned Sessions Judge had not given him an opportunity
to show cause why complaint should not be filed against him.
As seen earlier he had given an opportunity to the appellant
at an earlier stage to show cause why he
38-1 s. c. India/71
594
should not be prosecuted for giving false evidence and for
fabricating false evidence. But we are told that the
requirement of giving a notice to show cause why a complaint
should not be filed. after the required findings are given
and before making the complaint is mandatory and failure to
do so has vitiated the prosecution. Let us now proceed
to consider whether this contention is well founded. The
material portion of Clause (1) of Section 479-A is :
".................... 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 eradica-
tion 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 therefore and may if it so
thinks fit, after giving the witness an
opportunity of being heard make a complaint
thereof in writing............... it
(emphasis supplied)
This provision clearly shows that what is mandatory is that
the judge must give a finding that the witness has
intentionally given false evidence in the proceeding before
him or has intentionally fabricated false evidence for
purposes of being used in that 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 the witness should be prosecuted for the offence in
question. Giving of an opportunity to the witness to show
cause against the contemplated complaint is not mandatory.
That step is required to be taken only if the court thinks
fit-a matter left to the discretion of the trial court.
This position is made further clear when we go to sub-
section (5) of Section 479-A. This sub-section empowers the
appellate court to make a complaint against a witness whom
it thinks is guilty of perjury or guilty of fabricating
false evidence to be used in the proceedings before it. It
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provides that where the appellate court proposes to make a
complaint "the provisions of sub-section (1) shall apply
accordingly but no such order shall be made without giving
the person affected thereby an opportunity of being heard".
(emphasis supplied)
595
In other words in the case of the trial court a discretion
is given as to whether an opportunity should be given or not
before filing a complaint to show cause against the proposed
complaint but so far as the appellate court is concerned the
giving of an opportunity to the witness to show cause
against the contemplated complaint is made mandatory. The
reason for this distinction is understandable. So far as
the trial court is concerned, it is the court that has seen
the witness and observed his demeanour. Therefore the
legislature evidently thought that the question whether a
witness should be given a further opportunity to show cause
why complaint should not be filed against him may be left to
the discretion of that court but the appellate court having
no such opportunity, the legislature evidently thought that
an opportunity should be given to the witness to show cause
against the contemplated complaint. The conclusion arrived
at by us accords with the view taken by the High Court of
Madras in Rukmani Bai v. G. R. Govindaswamy Chetty(1) and by
Andhra Pradesh High Court in Rc. Javvaji Uthanna(2).
In those two decisions even after coming to the conclusion
that Clause (1) of Section 479-A does not mandatorily
require that any opportunity should be given to the person
complained against to show cause against the contemplated
complaint, the courts took the view that all the same notice
should be issued as there is no reason why the well-known
and well accepted principle of audi alteram partem should
not apply. In this case it is not necessary to express any
opinion as to the correctness of these observations. As
seen earlier adequate opportunity had been given to the
appellant to show cause against the proposed complaint.
Dr. Barlingay, learned Counsel for the appellant placed
reliance on two decisions of this Court namely in Dr. B. K.
Pal Chaudhry v. The State of Assam(3) and Kuppa Goundan and
anr. v. M. S. P. Rajesh(4) in support of his contention that
after giving the, ;findings required under Section 479-A(1)
and before filing the complaint, the court is bound to give
the person concerned an opportunity to show cause against
the proposed complaint against him. Neither of the two
decisions bear on the question of law in issue. In Dr. B.
K. Pal Chaudhry’s case(1), the complaint was filed by the
appellate court and not by the trial court. All that was
held by this Court in that case is that it was the duty of
the court acting under sub-sections 1 and 5 of Section 479-A
of the Code of Criminal Procedure to record a finding that
in its opinion intentionally false evidence has been given
and for the eradication of the evils: of perjury and in the
interests of justice, it
(1) [1963] M.L.J. 421; (2) A.I.R. 1964 A.P. 368. (3) [1960]
1 S.C.R. 945. (4) [1966] Supp. S.C.R. 373,
596
is expedient that there should be a prosecution for the
offence and also to give the person against whom it is
intended to proceed a hearing before making the complaint in
respect of the offence.
In Kuppa Goundan’s case(5) the scope of sub-section (6) of
Section 479-A, Code of Criminal Procedure came up for consi-
deration. That case has nothing to do with the scope of
sub-section (1) of Section 479-A. The observations made in
those cases. must be read in the context in which they were
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made. In those cases this Court did not consider the scope
of Section 479-A(1).
In the result this appeal fails and the same is dismissed.
K.B.N. Appeal dismissed.
(1) (1966) Supp. S.C.R. 373.
597