Decided on August 26,1968



- (1.) The appellant was directed to be prosecuted for offences under S.182 and 193 of the Penal Code by the District Judge of Tellicherry. The appellant (the defendant in a suit) lost before the Trial Court and filed an appeal before the District Court. He filed an application for stay of execution of the decree of the Trial Court; and in the affidavit in support of that petition, he alleged that he had executed a bond before the Trial Court to secure the decree that might be passed against him. The District Judge ordered interim stay; but, when the other side (the plaintiff) appeared and it was brought to the notice of the District Judge that no such security bond was completed by registration though a bond was prepared, the District Judge called for a report from the Trial Court. The report said that no security bond was registered: and then the District Judge vacated the interim stay and dismissed the petition for stay. Subsequently, the plaintiff filed an application under S.476 of the Code of Criminal Procedure requesting the District Judge to file a complaint against the appellant for offences under S.182 and 193 of the Penal Code. The District Judge issued notice to the appellant, heard him and ultimately, passed the order now impugned before me.
(2.) The first argument of Mr. T. Karunakaran Nambiar, the counsel of the appellant, is that the District Judge did not issue a show cause notice to the appellant. The argument is that after the disposal of the application filed by the plaintiff seeking to prosecute the appellant, the District Judge should have issued another notice calling upon the appellant to show cause why he should not be prosecuted. I do not think that such a notice is contemplated by either S.476 or S.479A. In a case falling under S.479A (or even under S.476) where the court suo motu proposes to prosecute a person, the court has to issue a notice to him calling upon him to show cause. But, in a case where the court is moved by a party under S.476 and the court hears the person sought to be prosecuted in that motion before it decides to prosecute him, the notice in that proceeding is the show cause notice. There is no need for another notice as claimed by the counsel of the appellant.
(3.) The next argument of the counsel is that this was a case coming under S.479A of the Code, so that the District Judge should have issued notice when he dismissed the application for stay; and that the District Judge had no jurisdiction to take action under S.476 subsequently at the instance of a party, e. g., the plaintiff. In support of this argument, he draws my attention to the decision of the Supreme Court in Shabir Hussain v. State of Maharashtra ( AIR 1963 SC 816 ). More particularly the counsel draws my attention to Para.8 of the judgment. The Supreme Court has said in unmistakable terms that under S.476 the action may proceed suo motu or on application, while under S.479A no application seems to be contemplated. The Supreme Court has also said that it is not as if that the court has an option to proceed either under S.479A or under S.476, and that if it does not take action under S.479A, it can do so under S.476. The Supreme Court has said further that if the court does not form an opinion, when it disposes of the matter, that the witness has given intentionally false evidence or intentionally fabricated false evidence, no question of making a complaint can properly arise; and that, when the court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interests of justice to make a complaint it has the discretion not to make a complaint. The Supreme Court has proceeded to lay down that once a court does not think it necessary to act under S.479A, it cannot later on resort to S.476 and make a complaint against the witness under that section.;

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