Decided on August 09,1967

AVULLA Respondents


- (1.) This revision petition is against the order of the Additional Sessions Judge of Kozhikode, directing the withdrawal of the complaint proposed to have been filed against the petitioner under S.476B of the Code of Criminal Procedure in that a false affidavit was filed by him before the Munsiff of Badagara in O. S. No. 100 of 1952 pending execution on the file of his court.
(2.) The landlord filed the suit for recovery of arrears of rent due from the defendant. The contention of the defendant in that suit was that he was entitled to reduction of rent under S.73 of the Act I of 1954 The landlord stated that the defendant is not entitled to the protection under S.73 since he was an intermediary during the period in question. Arrears were claimed by the landlord for the year 1125-27. During that period the contention of the landlord was that the defendant was collecting full rent from his tenant in the capacity of an intermediary. But the defendant stated that he was in fact directly cultivating the land and that nobody other than himself was carrying on the cultivation. Ext. C 1 is the counter affidavit filed by the defendant claiming that during the relevant period, he was himself cultivating the land. That was opposed by the landlord, stating that the land was cultivated by the tenant under the defendant. The defendant was called upon to produce the receipts issued by him. In Ext C 1 affidavit, it was stated by the defendant that he was not in possession of the counter foils. But as a matter of fact, the counter foils were produced by the landlord which were made available to him by the tenant who was actually cultivating the land under the defendant and thereupon the court found that the statement made by the defendant in Ext. C 1 affidavit was false. In this circumstance, prosecution was ordered by the Munsiff under S.476 of the Code of Criminal Procedure. In appeal before the Sessions Court. Kozhikode the learned Additional Sessions Judge who heard the appeal found that the affidavit was not intended to be an item of evidence in the case and so no offence under S.193 was made out. The learned counsel appearing for the petitioner argued that once an affidavit is filed in the court, it is not open to the party to contend that the affidavit was not intended to be treated as evidence, and it was filed only by way of an objection to the affidavit filed by the landlord. The following observation made by the teamed Additional Sessions Judge is pertinent in this connection; Therefore, though the contents might be false and some other offence might have been nude put if the falsity is proved, no offence under S.193 has been made out." This view cannot be sustained. When once the contents of the affidavit are proved to be false, a case might lie under S.193 of the Indian Penal Code. But the prosecution must fail on another ground viz. an action of this nature cannot be initiated under S.476 of the Code. The proper section under which the action could be sustained is S.479A of the Code. This point is covered by a recent decision of the Supreme Court in Baban Singh v. Jagdish Singh AIR 1967 SC 68 . The learned Judges observed in that case: "S.479A 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 offences when committed by a witness, action under S.497A alone can be taken."
(3.) The learned counsel pointed out also that in the present case the affidavit in question was filed by the defendant who is a party to the suit and not in his capacity as a witness. This contention is also not available in view of the observation in the same judgment, that a party when files the affidavit, assumes the character of a witness. He is therefore treated as a witness in the case. So, on the above reasoning the proceeding has to be quashed.;

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