R.N. Misra, J. -
(1.) THE Petitioners along with another were charged under Section 467 of the Indian Penal Code for forging a document purporting to be an authority to adopt said to have been executed by one Krushna Chandra Guru in favour of his wife Tikei. They were further charged under Section 193 of the Indian Penal Code for having fabricated false evidence for being used in a title suit relating to a dispute of adoption. Petitioners 2 and 4 Dhaneswar and Benudhar respectively were individually charged under Section 193 of the Indian Penal Code for intentionally giving false evidence in the said suit. Petitioner Sadananda was charged under Sections 465 and 471 of the Indian Penal Code for having used the said document (Ext. 1) in the litigation knowing it to be a forged document. The learned trial judge acquitted Madhab, who was a co -accused and convicted all the four Petitioners under Sections 461 and 193 of the Indian Penal Code and sentenced them to rigorous imprisonment for 18 months and six months respectively. Petitioners Dhaneswar and Benu were also convicted for having given false evidence under Section 193 of the Indian Penal Code and sentenced to rigorous imprisonment for one year each. Petitioner Sadananda was convicted under Section 465 read with Section 71 of the Indian Penal Code and sentenced to undergo six months ' rigorous imprisonment. The sentences of imprisonment were directed to run concurrently. The learned appellate judge has dismissed their appeal and affirmed the convictions and the sentences.
(2.) THE short facts necessary to dispose of this revision application may now be stated. Title Suit No. 67 of 1967 was instituted by Petitioner Sadananda against Tikei and another in the Court of the Munsif at Nayagarh for declaration that he was the adopted son of Krushna Chandra, husband of Tikei. The suit was posted to 18 -5 -1968 for ex parte hearing. That day Sadananda filed Ext. 1 and examined himself in support of his case. Petitioner Dhaneswar was also examined as a witness on his behalf. Ext. 1 which purported to be an authority of Kurshna Chandra in favour of his wife dated 18 -9 -1946 to adopt the Petitioner Sadananda was thus relied upon in support of the claim. The suit was decreed ex parte on 11 -5 -1968. Ext. 1 was taken back by the Petitioner Sadananda. At Tikei 's instance the ex parte decree was set aside by the Subordinate Judge of Nayagarh to whom the record was transferred and the suit was posted to 22 -9 -1969 for hearing. Ext. 1 was re -filed. Petitioners Dhaneswar and Benu were examined, as witnesses on the Plaintiff 's side on 23.9.1969 and the document was again marked as Ext. 1. On 24 -9 -1969, Sadananda applied for withdrawal of the suit. On 4 -11 -1969, the suit was permitted to be withdrawn but the learned Subordinate Judge came to hold vide his order (Ext. 16/6):
...So it follows ' therefrom that this Ext. 1 is subsequently created on the cartridge (pie) paper which was issued in the later period and as such the said document is nothing but forged and fabricated one. So in such circumstances, I have no hesitation to hold that the above -mentioned witnesses Dhaneswar ' Naik and Benu Swain had intentionally given false evidence in the suit and had intentionally fabricated the Ext. 1 and their signatures thereon for the purpose of being utilised in the suit and that for eradication of evils of perjury and fabrication of false evidence in the interest of justice, it is expedient that those two witnesses should be prosecuted for the offence so committed by them. So necessary complaint is to be filed against both of them for the offence punishable under Sections 193 and 467, Indian Penal Code.
Add to it in the above circumstances also, the above -mentioned two witnesses are liable for the offence punishable under Section 471, Indian Penal Code for which necessary inquiry is to be made as contemplated under Section 476, Code of Criminal Procedure. Also the Plaintiff Sadananda Guru, the signatories Madhaba Naik and Banamali Patnaik of that Ext. 1 and Nrusingha Charan Naik, the scribe of the same are prima facie liable for the offence punishable under Sections 193, 467 and 471, Indian Penal Code for which necessary inquiry is to be made against them under Section 476, Code of Criminal Procedure. Accordingly start and register an M.J.C. under Section 476, Code of Criminal Procedure against the above -mentioned six persons including the Plaintiff and put up for further orders.
No complaint seems to have been filed against Dhaneswar and Benu as directed above. An inquiry was undertaken under Section 476 of the Code of Criminal Procedure in M.J.C. No. 79 of 1969 and the same learned Subordinate Judge vide Ext. 16/7 came to hold:
It is contended by the opposite parties that as the original suit was already withdrawn and those opposite parties never dishonestly used the document in evidence, any criminal complaint should not lie against them. The withdrawal of the suit in the above circumstances is immaterial. The dishonest intention on the part of the opposite parties to use the document in question as genuine is obvious. So, their such contentions are not tenable at all.
Therefore, considering the above facts and circumstances of the case I am of the view that the opposite parties are liable to be criminally prosecuted as follows:
(1) Opposite party, Sadananda Guru for the offence punishable under Sections 193, 467 and 471 of the Indian Penal Code.
(2) Opposite party Dhaneswar Naik and Benu Swain for the offence punishable under Section 471, Indian Penal Code and further for the offence under Sections 193 and 467, Indian Penal Code for which necessary order is already passed on 4 -11 -1969.
(3) Opposite party Madhaba Naik and Nrusinha Charan Naik for the offence punishable under Sections 193 and 467, Indian Penal Code.
He accordingly directed a complaint to be lodged. Ext. 17 is the complaint filed by the Subordinate Judge.
At the trial, three witnesses were examined for the prosecution and the co -accused who has now been acquitted examined himself as d.w. 1. Many documents were filed on behalf of the prosecution. The defence exhibited no documents on its behalf.
(3.) TWO contentions have been mainly pressed before me at the time of hearing by learned Counsel for the Petitioners.
By order under Ext. 16/6 passed by the learned Subordinate Judge while allowing withdrawal of the suit, prosecution against Petitioners Dhaneswar and Benu was directed on the ground that these two witnesses had appeared in the title suit and had given false evidence. Section 479 -A(1) of the Code of Criminal Procedure as far as material provides thus:
Notwithstanding anything contained in Sections 476 to 479 inclusive, when any Civil ... 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, and that for the eradication of 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 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 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...
Indisputably the order dated 4 -11 -1969 (Ext. 16/6) is divisible into two parts. The first portion (paragraph 5 of the order) contained the direction under Section 479 -A(1) of the Code of Criminal Procedure though there is no mention of the section and in paragraph 6 of that order there was a direction of instituting an inquiry under Section 476, Code of Criminal Procedure. The learned Subordinate Judge was obliged to comply with the requirements of Sub -section (1), namely, "should have given opportunity to the witness against whom he wanted to file a complaint of being heard". Neither Ext. 16/6 nor Ext. 16/7 (the order in the inquiry under Section 476, Code of Criminal Procedure) shows that such opportunity was given. In fact there is no room for Ext. 16/7 to deal with the matter.
It has been held in the case of Dr. B.K. Pal Chaudhry v. State of Assam, A.I.R. 1960 S.C. 193 that an opportunity of being heard as to whether a complaint should be made or not has got to be provided to the witness before any final decision in the matter can be reached and an order made without compliance of that as provided for in Sub -section (1) of Section 479 -A, Code of Criminal Procedure vitiates the complaint. The Madras High Court has taken the view in the case of Krishnan, In reo, 1970 (I) M.L.J. 625, that where the Petitioner was denied the opportunity of being heard to which he has a clear right under Section 479 -A(1), Code of Criminal Procedure the denial of such a right is sufficient to cause prejudice to him and Section 537, Code of Criminal Procedure would have no application to such a case. The Supreme Court again in the case of Narayan Swami v. State of Maharashtra : A.I.R. 1968 S.C. 609, reiterated the view that an opportunity of being heard before action is taken under Section 479 -A(1) is a substantial and important point. In the circumstances, I would accept the contention raised before me that the direction contained in the order (Ext. 16/6) to prosecute two of the Petitioners Dhaneswar and Benu - for offences punishable under Sections 163 and 467 of the Indian Penal Code is not in accordance with law and is vitiated.
There was no justification to defer filing of the complaint till the inquiry under Section 476, Code of Criminal Procedure was over pursuant to the subsequent direction contained in Ext. 16/6.
There should indeed have been two separate cases, if at all, which could, for convenience, be clubbed together for trial.;