- (1.)IN Criminal Appeal No. 355 of 1962 Mohammad Sami v. State and Capital Sentence Reference No. 25 of 1962 State v. Mohammad Sami, under the orders of Hon'ble Nigam and Misra, JJ. a complaint under Sections 471, 466, 193 and 218 of the I. P. C. was filed against Dr. K. N. Gupta. When the complaint came up for hearing before the Magistrate, an objection was raised on behalf of the petitioner, that in view of the recent pronouncement of the Supreme Court in the case of Shabir Hussain v. State of Maharashtra a complaint for the offences of giving false evidence and fabricating false evidence could be made only in accordance with the provisions of Section 479-A of the Cri. P. C. and since the complaint in the instant case had been filed under Section 476, Cri. P. C. the entire proceedings became null and void, and the Magistrate had no power to proceed with the case. The Magistrate dismissed the objection. Being aggrieved with that order, Dr. K. N. Gupta went up in revision to the Sessions Judge, Lucknow. He also summarily dismissed the revision. Against that order, he filed the present revision in the High Court. The revision came up for hearing before our brother Lakshmi Prasad, and he referred it to a larger Bench, as some important questions of law were involved. We have heard the learned Counsel for the parties at length.
(2.)THE primary question for consideration in the present revision is, whether the complaint for the offences under Sections 471, 466, 193 and 218 of the Indian Penal Code, could be filed under Section 476 or 479-A of the Cri. P. C. The contention on behalf of the petitioner is, that the complaint should have been filed strictly according to the provisions of Section 479-A of the Cri. P. C. , and since mandatory provisions of law have not been complied with, the entire proceedings became null and void, and no action could legally be taken on the complaint filed in the Court.
(3.)DEALING with the evidence of Dr. K. N. Gupta, the Hon'ble Judges made the following observations: D. W. 1, Dr. K. N. Gupta examined Mohammad Sami's injuries in the jail. According to him, there were three injuries: 1. Sloughing irregular lacerated wound " 1" " on the back of first inter phalangeal joint of the right ring finger. 2. Incised wound 2" 1/10" skin deep on the palm of the left hand transversely. 3. Complained of pain on the back of neck and left lower chest and right buttock with no mark of injury. The prosecution have seriously challenged the genuineness of injury No. 2. This injury is not mentioned either in general diary report Ext. Ka-21 or even in the Jail Gate Register as is deposed by C. W. 1 Raghubir Prasad. The learned Sessions Judge had certain comments to make against the evidence of Dr. K. N. Gupta and also the record prepared by him. In order to be more certain in the formulation of our view, we summoned Dr. K. N. Gupta and have examined him under the provisions of Section 438 read with 374 of the Code of Criminal Procedure. We are of opinion that his statement is absolutely unworthy of belief. We do not want to express ourselves further as we might take certain further proceedings against him. The evidence, however, clearly indicates that pages 13, 14, 15 and 16 of the Jain injury register have been torn. . . . In the circumstances we are of opinion that Dr. K. N. Gupta is a completely unreliable witness. His evidence cannot be attached the least weight. We are, therefore, of opinion that the existence of the incised wound on the palm of the left hand of Mohammad Sami is not proved. We would go further and hold that this injury never existed and has been got added to the injury report only in order to make out a case of self-defence. . . . Before we part with the case, we would like to mention that we are not satisfied with the statement made by Dr. K. N. Gupta in this ease either in the court below or before us. We are of opinion that it is expedient in the interest of justice that an enquiry under Section 476, Cri. P. C. should be made against him into offences referred to in Section 195, Subsection (1) Clauses (b) and (c) of the Code of Criminal Procedure, i. e. offences punishable under Sections 193 and 471 in addition to offences punishable under Sections 218 and 466 of the Indian Penal Code. As we would have to consider preferring a complaint, we would like to give an opportunity even in respect of two sections not covered by the provisions of Section 476 of the Code of Criminal Procedure to Dr. K. N. Gupta. We, therefore, direct that a separate proceeding be started and notice given to Dr. K. N. Gupta to show cause. . . . Vide order, dated 31st July 1962, at p. 40 of the paper book.