Decided on November 16,1962



- (1.) The question that arises for consideration in this appeal is whether a petition under S.476 Criminal Procedure Code for holding an enquiry regarding perjury alleged to have been committed during a trial is competent when the 'trial judge himself had taken no action in the matter under S.479A. The petitioner was one of the accused persons in Sessions Case No. 31 of 1959 on the file of the Additional Sessions Judge of Tellicherry. The case was initiated by a private complaint and the charge against the accused was that they set fire to the two sheds belonging to the complainant. The accused were acquitted. After the order of acquittal was confirmed in appeal the present petition was filed against the complainant and some of the prosecution witnesses. This petition was dismissed and the petitioner has come up in appeal.
(2.) The arguments placed before me were confined solely to the scope of S.479A, that is whether S.479A will act as a bar to action being taken under S.476. S.479A was added to the Criminal Procedure Code by an amendment of 1955. The relevant portions of the Section are:- "479 (1) Notwithstanding anything contained in S.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 written 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. x x x x (6) No proceedings shall be taken under S.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." The view taken by the lower court is that with the introduction of S.479A S.476 to 479 have become inapplicable to cases of perjury and fabrication of false evidence. S.479A gives a complete set of rules for the initiation and conduct of such cases and where the court which heard the case in which the perjury is alleged to have been committed takes no action against the offender under S.479A, simultaneously with the delivery of judgment no prosecution for perjury can be started at a later stage. In support of this view the learned Judge referred to a number of decisions of the various High Courts, among them Dhansinah v. Ramasaran AIR 1961 MP 305 , State v. Bijili Pathak AIR 1961 Patna, 387, Amlak v. State AIR 1961 Rajasthan 220 and State v. Ugam Singh AIR 1961 Rajasthan 268. The learned counsel for the appellant on the other hand argues that S.479A was meant only to provide an alternative procedure to be followed in flagrant and serious cases of perjury and so the provisions of S.476 are still available for proceeding against witnesses whose cases cannot be brought under S.479A. for one reason or other. The learned counsel sought support for this position in the decisions reported in Durga Prasad v. State of U.P. AIR 1959 Allahabad 744, Lal Behari v. State AIR 1962 Allahabad 251 and State of Bombay v. Premdas AIR 1960 Bombay 483.
(3.) There is thus a marked difference of opinion between the various High Courts regarding the scope of S.479A. However the controversy seems to have been resolved by a recent and as yet unreported decision of the Supreme Court which was brought to our notice at the close of the arguments. In Shabir Hussain Bholu v. State of Maharashtra Supreme Court Criminal Appeal No. 92 of 1961 decided on 28-9-1962 Justice Mudholkar, expressed the view that S.479A covers all cases of intentional perjury and fabrication of false evidence and the distinction sought to be drawn between flagrant offences and offences which are not flagrant or between serious offences and offences which are not serious is unwarranted. His Lordship held that: "... the view taken in Parashotam Lal's case (AIR 1959 Punjab 145) and Amldak's case (AIR 1961 Rajasthan 220) to the effect that the provisions of S.476 to 479 are totally excluded where an offence is of the kind specified in S.479A(1) is correct.";

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