Mudholkar, J. - (1.) In this appeal by special leave from the judgment of the Bombay High Court the question which arises for consideration is whether the Chief Presidency Magistrate, Bombay, could not take cognizance of a complaint against the appellant for an offence under S. 193, Indian Penal Code, because the Additional Sessions Judge, Bombay, who filed that complaint had failed to follow the procedure laid down in S. 479-A of the Code of Criminal Procedure.
(2.) The appellant was a witness for the prosecution at the trial of one Rafique Ahmad before the Additional Sessions Judge, Greater Bombay, for offences of murder and abetment of murder, along with two other persons. When the appellant had been examined as a witness before the committing magistrate he deposed that in his presence Rafique Ahmed had stabbed the deceased Chand while he was running away. When, however, he was examined at the trial before the Court of Sessions three months later the appellant stated that while he was standing on the threshold of his house he saw Rafique Ahmed and his two associates coming from the direction of the Muhammaden burial ground. According to him one of them had a dagger while the others had only sticks with them. He, however, did not see anything more because, as his children were frightened, he closed the door and remained inside. He disclaimed knowledge of what happened subsequently and in cross-examination stated that it was not true that he actually saw Rafique Ahmed stabbing the deceased.
(3.) In his charge to the jury the learned Additional Sessions Judge who tried the case has brought out the fact that the appellant had made two widely divergent statements in regard to a certain part of the incident. The jury, after considering the entire evidence, returned a verdict of not guilty against Rafique Ahmed in respect of the offence under S. 302, I. P. C. but found him guilty under S. 304, first part. It also found the other two accused persons guilty under S. 304, first part read with S. 109, I. P. C. After the trial was over the learned Additional Sessions Judge came to the conclusion that proceedings should be taken against the appellant for intentionally giving false evidence. He, therefore, recorded a separate order which runs thus: "I direct that the Registrar, Sessions Court for Greater Bombay should take necessary steps for prosecution of witness Shabir Hussain Bholu for the offence of perjury in view of his deposition before the Committing Magistrate and his deposition in this Court, both of which are on oath but are at variance with each others." ;