Murlidhar, J. - (1.) This is a second revision by the. complainant arising out of a plea that the complaint filed by the Naib-Tahsildar Mawana, on 12-10-1978 under. Sections 193. 199, 200. 465, 467 and 471. I.P.C. was not entertainable being without jurisdiction. The Magistrate dismissed the objection but in revision the Additional Sessions Judge has allowed it holding that the complaint was not legal and proper and no Court could proceed on this complaint. Even so, instead of passing final orders he remanded the case to the Magistrate with a direction "for re-hearing the arguments and then deciding the application of the accused in accordance with law". The complainant has come up in second revision,
(2.) The brief relevant facts are that in a mutation case in the year 1969 the accused respondent Om Prakash made a statement that he did not possess more than 121/2 acres of land. The Sub-Divisional Officer went on to pass a mutation order on 30-9-1969. About four years latter the complainant Anup Singh moved an application under Section 476 old Cr. P.C. about the false evidence given by Om Prakash in the court of Naib Tahsildar as well as some tampering of the record by way of a cover up. The Naib Tahsildar after making enquiry on 18-7-1977 took the view that offences had been committed but directed the complainant himself to file a complaint. The complainant filed an appeal under Section 476-B Cr. P.C. (Old) and the Sub-Divisional Magistrate on 2-8-1977 directed the Naib-Tahsildar to file a complaint. This the Naib-Tahsildar did on 12-10-1977, After he was summoned the accused raised the objection regarding jurisdiction. The argument in brief is that the Sub-Divisional Magistrate's order directing the Naib-Tahsildar to file a complaint is illegal and without jurisdiction on two grounds (1). that in view of Section 479-A (6), Cr. P.C. it was not competent to the Court to take action under Section 476, Cr. P.C. four years after the decision of the case and (2) that in any case under Section 476-B the appellate Court could only file the complaint itself and could not direct the lower Court to file complaint.
(3.) I have heard learned Counsel for the parties at length on both the points involved. As regards the applicability of Section 479-A (6) to the proceeding under Section 476, Cr. P.C. learned Counsel for the respondent stressed that this could not be regarded a case where proceedings could not be taken under Section 479-A. This is because according to him the Tahsildar should be presumed to know the total land holding of the applicant for mutation on the basis of Tahsil records which were available to him. In any case the complainant had appeared in those proceedings and had an opportunity of bringing true facts to the notice of the Tahsildar and then action might have been taken under Section 479-A, Gr. P.C. The legal position that if action could have been taken under Section 479-A resort to Section 476 afterwards was not permissible does not seem to be open to doubt. I have, however, come to the conclusion that the question whether proceedings could be taken under Section 479-A against Om Prakash is not free from difficulty. Before the provision can apply the Court has to be of the opinion that the witness has intentionally given false evidence or fabricated false evidence. Where this feature has not been brought to the notice of the court and even the material giving rise to this inference is not on record it is hardly possible to say that the Court was or could be of the opinion that the person had given, or fabricated false evidence. It. would, therefore, follow that Section 479-A cannot be applied to cases where at the stage of delivery of, judgment the Court is not in a position to record any opinion about the perjury or fabrication of false evidence complained against for want of the relevant information. In such cases Section 476 would be available for proceeding against the accused when the matter comes to light. But apart from this : there is a more potent objection so far as this ground is concerned. This is really a plea in bar to the proceeding under Section 476, Cr. P.C. The essence of the objection is that in view of Section 479-A (6) no proceeding under Section 476 was entertainable. This objection should have been raised in the proceeding under Section 476, Cr. P.C. to which the respondent was a party. The decision dated 2-8-1977 of the Sub-Divisional Magistrate in which it was held that complaint should be lodged impliedly overrules the objection involved in this ground of attack. That decision was allowed to become final. It is not, in my opinion, open to the accused to go behind that order and re-agitate that ground of attack in the complaint.;