Full Judgment Text
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PETITIONER:
BABAN SINGH AND ANR.
Vs.
RESPONDENT:
JAGDISH SINGH & ORS.
DATE OF JUDGMENT:
08/02/1966
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
SUBBARAO, K.
BACHAWAT, R.S.
CITATION:
1967 AIR 68 1966 SCR (3) 552
CITATOR INFO :
F 1968 SC1422 (4)
ACT:
Indian Penal Code, 1860, ss. 191, 192 and 199-Filing
affidavit containing false statements before High Court-
Offence under which section committed.
Code of Criminal Procedure, ss. 476 and 479-A(6)-Offenses by
witnesses under ss. 191 and 192 Penal Code-S. 479-A applies
and action under s. 476 cannot be taken.
HEADNOTE:
The appellants made affidavits in the High Court denying
receipt of money by way of compromise in a first appeal
pending before that Court. The High Court ordered the
Registrar to hold an enquiry. The Registrar after recording
the evidence of the parties reported that the appellants’
denial of receipt of money was false. thereafter an
application was made to the High Court under s. 476 of the
Code of Criminal Procedure which was kept pending and taken
up after the appeal was decided. The High Court held that
the offence committed by the appellants was one under s. 199
Indian Penal Code and ordered the Registrar to file a
complaint. The appellants came to this Court under s. 476B.
The questions for consideration were; (1) whether the
offence committed by the appellants fell under s. 191 and
192 of the Penal Code or under s. 199, and (2) whether
proceedings under s. 479-A could be taken against the
appellants, for if they could be, then action ought to have
been taken under that section and s. 476 could not be
invoked.
HELD : (i) When the appellants made declarations in their
affidavits which were tendered in the High Court to be taken
into consideration they intended the statements to appear in
evidence, and so appearing, to cause the court to entertain
an erroneous opinion regarding the compromise Their offence
came within the words of ss. 191/192 rather than g. 199 of
the Indian Penal Code. [556 C]
(ii) In respect of offenses under ss. 191 and 192 of the
Indian Penal Code when committed by a witness action under
s. 479-A alone can be taken and action under s. 476 is ruled
out because of sub-s. (6) of 9. 479-A. [556 E-G]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 74 of
1964.
Appeal from the judgment and order dated October 3, 1963 of
the Patna High Court in Criminal Misc. Case No. 366 of
1956.
Naunit Lal, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal under s. 476-B of the
Code of Criminal Procedure by one Baban Singh and his wife
Dharichhan Kuer against a judgment and order of the High
Court at Patna
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ordering the Registrar to file a complaint against them
under s. 199 of the Indian Penal Code for making false
affidavits. The respondents are persons who had moved the
High Court under s. 476 of the Code for the prosecution of
the appellants in the following circumstances.
Jagdish Singh and Parmhans were appellants in F. A. 301 of
1952 in the High Court at Patna. Mst. Dharichhan Kuer was
respondent No. 13 in that appeal. During the pendency of
the appeal a compromise was said to have been arrived at
between Dharichhan Kuer on the one hand and Jagdish Singh
and Parmhans on the other. Dharichhan Kuer and Jagdish
Singh swore an affidavit on June 22, 1953 in support of the
petition for compromise which was filed in the High Court.
Baban Singh’s brother identified Dharichhan Kuer before the
Oath Commissioner and Rs. 4,000 were paid to Dharichhan Kuer
under the terms of the compromise in the Commissioner’s
presence. Dharichhan Kuer also passed a receipt and her
thumb impression was identified by Baban Singh’s brother.
The petition of compromise was filed in court on July 13,
1953. The same day Baban Singh swore an affidavit (Ex. B)
denying the compromise or that his wife had received Rs.
4,000. This affidavit was filed in the High Court on July
31, 1953. On September 9, 1953 Dharichhan Kuer also filed
an affidavit (Ex. A) in support of her husband.
As the compromise was in dispute the High Court ordered the
Registrar to hold an enquiry. Nine witnesses were examined
on behalf of Jagdish Singh and Parmhans including the Oath
Commissioner. Dharichhan Kuer and her husband Baban Singh
gave evidence on their own behalf. The Registrar reported
on July 14, 1954 that the compromise was genuine and that
Dharichhan Kuer had, in fact, sworn the affidavit before the
Oath Commissioner and had received Rs. 4,000. B. N. Rai and
Kanhaiya Singh, JJ. accepted the report by their order dated
October 5, 1956. One of the terms of the compromise was
that if Dharichhan Kuer resiled from it the amount of Rs.
4,000 would be refunded with costs Rs. 500. Dharichhan Kuer
deposited this amount in court on October 9, 1956. The
first appeal was then heard and disposed of.
The application under s. 476 out of which this appeal has
arisen was filed during the pendency of the first appeal and
was taken up for hearing after the appeal was disposed of.
A question arose whether a complaint for prosecution of
Baban Singh and Dharichhan Kuer for an offence under s. 193,
Indian Penal Code could be filed in the High Court because
Baban Singh and Dharichhan Kuer had deposed not before the
court but before the Registrar. Further s. 479A (to which
we shall refer presently) was introduced from January 1,
1956 and thus on October 5,
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554
1956, when the High Court accepted the report of the
Registrar, it was in force. The Divisional Bench did not
consider taking action under s. 193 because of s. 479A and
it appears that the counsel for Jagdish Singh and Parmhans
also conceded that no prosecution could take place under
that section. The High Court however, considered whether
action should be taken in respect of the two affidavits
(Exs. A and B). It is not necessary to refer to the
statements in these affidavits because we are not
considering whether they were true or false. It was
contended before the High Court that a prosecution under S.
199 of the Indian Penal Code would be equally covered by s.
479A and as the procedure under that section was not
followed an application for prosecution under S. 476 was
barred. This contention was not accepted by the High Court
and after going into the expediency of the prosecution the
learned Judges ordered the Registrar of the High Court to e
a complaint before the appropriate authority for the
prosecution of the appellants. The appellants now appeal as
of right under s. 476B.
At the hearing before us there was no representation on
behalf of the respondents. Although notices were issued to
Jagdish Singh, Parmhans and the State Government, none
appeared. On hearing the learned counsel for the appellants
we are satisfied that this appeal must succeed. The short
question in this case is whether S. 476 could at all be
invoked because of the bar contained in S. 479A sub S. (6).
The sixth sub-section, to which we have referred lays down
that no proceedings shall be taken under ss. 476 to 479
(both 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 s. 479A. The point to
decide, therefore, is whether proceedings under s. 479A
could be taken against Baban Singh and his wife, for if they
could be, then action ought to have been taken under that
section and s. 476 cannot be invoked. Section 479A, in so
far as it is relevant to our purpose, provides as follows :-
"479-A. Procedure in certain cases of false
evidence.-
(1) Notwithstanding anything contained in
section 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 inten-
tionally 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
555
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
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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
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.
The learned Judges in the High Court did not take action in
respect of the offence of giving false evidence on oath, as
defined in s. 191 and punishable under s. 193 of the Indian
Penal Code, because they were of the opinion that s. 479-A
of the Code of Criminal Procedure would be applicable to
that offence even though evidence was recorded by the
Registrar. The High Court selected for action the offence
in relation to the two affidavits holding that prima facie
an offence under s. 199, Indian Penal Code was committed.
That offence is also punishable in the same manner as if
false evidence was given. The difference between ss. 191
and 199 is this; Section 191 deals with statements and
declarations falsely made by a person legally bound by an
oath or by an express provision of law to state the truth.
Section 199 deals with statements and declarations made
voluntarily provided they are capable of being used as
evidence and which the court is bound to receive as evi-
dence.
The matter has to be considered from three standpoints.
Does the swearing of the false affidavits amount to an
offence under s. 199, Indian Penal Code or under either s.
191 or 192, Indian Penal Code ? If it comes under the two
latter sections, the present prosecution cannot be
sustained, Section 199 deals with a declaration and does not
state that the declaration must be on oath. The only
condition necessary is that the declaration must be capable
of being used as evidence and which any court of justice or
any public servant or other person, is bound or authorised
by law to receive as evidence. Section 191 deals with
evidence on oath and
556
s. 192 with fabricating false evidence. If we consider
this matter from the standpoint of s. 191, Indian.Penal Code
the offence is constituted by swearing falsely when one is
bound by oath to state the truth because an affidavit is a
declaration made under an oath. The definition of the
offence of giving false evidence thus applies to the
affidavits. The offence may also fall within. 192. It lays
,down inter alia that a person is said to fabricate false
evidence if he makes a document containing a false statement
intending that such false statement may appear in evidence
in a judicial proceeding and so appearing in evidence may
cause any person who, in such proceeding is to form an
opinion upon the evidence, to ,entertain an erroneous
opinion touching any point material to the result of such
proceeding. When Baban Singh and Dharichhan Kuer made
declarations in their affidavits which were tendered in the
,High Court to be taken into consideration, they intended
the statements to appear in evidence in a judicial
proceeding, and so appearing, to cause the court to
entertain an erroneous opinion regarding the compromise. In
this way their offence came within the words of ss. 191/192
rather than S. 199 of the Indian Penal Code. They were thus
prima facie guilty of an offence of giving false evidence
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or of fabricating false evidence for the purpose of being
used in a judicial proceeding.
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 proceeding 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
s. 191/193 and the second to that under s. 192/193 of the
Indian Penal Code. In respect of such offenses- when
committed by a witness, action under s. 479-A alone can be
taken. The appellants were witnesses in the inquiry in the
High Court and they had fabricated false evidence. If any
prosecution was to be started against them the High Court
ought to have followed the procedure under S. 479-A of the
Code of Criminal Procedure. Not having done so, the action
under s. 476 of the Code of Criminal Procedure was not open
because of sub-s. (6) of s. 479-A and the order under appeal
cannot be allowed to stand.
In the result the appeal succeeds and is allowed. The order
for the prosecution of the appellants is set aside. The
complaint, if filed, shall be withdrawn.
Appeal allowed.
557