SRIVASTAVA, J. - (1.) TWO reports were lodged at the police station Sadar Bazar, Saharanpur, on the 27th of May 1952 and the 28th of May 1952, by Sri Durga Prasad Khosla, It is suggested that the reports were lodged with the connivance and collusion of Sri Bal -want Singh Vakil, Munshi Atma Kam and Ch. Wall Mohammad. Sri Durga Prasad Khosla mentioned certain facts in his reports and said On their basis that he apprehended a breach of peace on behalf of Dr. Jamuna Prasad and Sri Ghasita Singh. He wanted action to be taken against them. On the 30th of May 1952 the police submitted a challan against the two persons and proceedings were started against them under Section 107 Cr. P. C. On the 27th of July 1952 the Additional City Magistrate, who was dealing with the case, dropped the proceedings finding that there was no sufficient ground to proceed. Sri Durga Prasad Khosla then went up in revision to the Sessions Judge but his revision application was dismissed. He then filed an application in revision in the High Court and the case was remanded to the learned Magistrate for disposal according to law. Evidence was thereupon recorded by the Magistrate and Sri Durga Prasad Khosla as well as Sri Balwant Singh, Munshi Atma Ram and Ch. Wali Mohammad gave evidence. A letter Ex. 1 said to have been written by Sri Balwant Singh was also produced. The Magistrate after considering the evidence again dropped the proceedings on the 3rd of March 1956 on the ground that: no case had been made out. On the 10th of April 1956 Dr. Jamuna Prasad and Sri Ghasita Singh filed an application purporting to be one under Section 476 Cr. P. C. praying that a complaint be filed against Sri Durga Prasad Khosla and the three other persons who had appeared as witnesses in the case so that they may be tried for the offences punishable under Sections 193, 211, 342, 500, 109, 114 and 120B I. P. C. The application was opposed on behalf of the four persons concerned on various grounds and after hearing the parties the learned Magistrate ordered on the 11th of July 1956 that a complaint be filed against the four persons abovementioned charging them with offences punishable under Sections 193, 211 and 500 I. P. C. because it was expedient in the interests of justice that those persons be prosecuted for those offences and a prima facie case had been made out against them on the materials on the record. A complaint was actually sent by the learned Magistrate in pursuance of the order on the 17th of July 1956, but somehow in this complaint Sri Durga Prasad Khosla was charged with offences punishable under Sections 193, 211, 120B and 500 I. P. C. Sri Balwant Singh was charged under Sections 193, 120B and 500 I. P. C. Munshi Atma Ram was charged under Sections 193, 120B, and 500 I. P. C. and Ch. Wali Mohammad was charged under Sections 193, 120B and 500 I. P. C. Against the order of the Magistrate directing the complaint to be filed and the complaint which was filed two appeals were preferred under Section 476B Cr. P. C. to the Court of Session - -one (Criminal Appeal No. 349 of 1956) by Sri Durga Prasad Khosla and the other (Criminal Appeal No. 371 of 1956) by Sri Balwant Singh, Munshi Atma Ram and Ch. Wali Mohammad. The main contentions which were pressed by the appellants in the two appeals were four: (1) That in the circumstances of the case no complaint should have been ordered to be filed against the appellants at all. (2) That in any case the learned Magistrate having directed that a complaint be filed for the offences punishable under Sections 193, 211 and 500 I. P. C. only there could be no justification for charging the appellants for the other offences with which they had been charged in the complaint. (3) That the complaint under section 193 I. P. C. could not have been filed on the date on which it was filed in view of the provisions of Section 479 -A of the Code. (4) That no prima facie case having been made out a complaint should not have been filed even under Section 211 I. P. C. On behalf of Dr. Jamuna Prasad and Sri Gha -sita Singh at whose, instance the complaint had been filed a preliminary objection was raised about the maintainability of the two appeals. It was contended that so far as the offences under Sections 120B, 342 and 500 I. P. C. were concerned they not being offences mentioned in Section 195 I. P. C. the complaint in respect of those offences could not be considered to have been filed under Section 476 Cr. P, C. and on that account so far as that part of the complaint was concerned no appeal lay under Section 476 -B of the Code. The other contentions raised on behalf of the appellants were also seriously disputed.
(2.) THE learned Sessions Judge accepted the preliminary objection so far as the offences under Sections 120B, 342 and 500 I. P. C. were concerned. He thought that the complaint in respect of those offences had not been filed by the Magistrate under Section 476 Cr. P. C. and his order in that respect was therefore not appealable under Section 476 -B of the Code. So far as the complaint in respect of the offence under Section 193 I. P. C. was concerned, the learned Sessions Judge accepted the contention of the appellants that it was not open in view of Section 479 -A of the Criminal Procedure Code to the learned Magistrate to file a complaint for that offence long after he had concluded the case under Section 107 Cr. P. C. So far as the complaint under Section 211 I. P. C. was concerned, the learned Sessions Judge held that a prima facie case had been made out and that the learned Magistrate was justified in making a complaint for that offence. As a result of his findings the appeals were allowed in part, the complaint under Section 193 I. P. C. was withdrawn, but the appeals were otherwise dismissed. Against this order of the Sessions Judge two applcations in revision have been filed in this Court - -one No. 1367 of 1956 has been filed by Sri Durga Prasad Khosla and the other No. 85 of 1957 by Dr. Jamuna Prasad and Sri Ghasita Singh. Sri Durga Prasad Khosla took exception to that portion of the order of the learned Sessions Judge by which he had dismissed his appeal and contended that the entire complaint filed against him should be ordered to be withdrawn, Dr. Jamuna Prasad and Sri Ghasita Singh in their application for revision questioned the correctness of that portion of the order of the learned Sessions Judge by which he had held that a complaint could not be filed under Section 193 I. P. C in view of Section 479 -A Cr. P. C. They therefore prayed that that portion of the order of the learned Sessions Judge should be set aside.
(3.) THESE two applications in revision came up for disposal before one of us and while the question raised by Dr. Jamuna Prasad and Sri Ghasita Singh in Criminal Revision No. 85 of 1957 was being considered learned counsel for the opposite party referred to the case of Jaibir Singh v. Mal -khan Singh, 1958 All LJ 256: (AIR 1958 All 364) and contended that the decision in the case concluded the matter and in view of it that application in revision was bound to fail. It was pointed out that in that case it had been held clearly that after the introduction of Section 479 -A in the Cr. P. C. by the amending Act of 1955 all cases of witnesses having committed perjury or fabrication of false evidence in proceedings pending in Courts were covered by the provisions of Section 479 -A of the Code and to that extent Section 476 of the Code stood repealed. Learned counsel for Dr. Jamuna Prasad and Sri Ghasita Singh urged that the case of 1958 All LJ 256: (AIR 1958 All 364) (supra) needed reconsideration as several aspects of the matter had not been considered by the learned Judge who decided that case. Probably those aspects had not been brought to his notice. The question being of general importance it was thought that an authoritative pronouncement in respect of it was necessary for the guidance of the litigant public and the subordinate Courts. Two questions were therefore framed and were referred for answer to a larger Bench. That is how the case has come up before us. We have therefore to answer the following two questions: (1) Whether section 479 -A Cr. P. C. has impliedly repealed Section 476 of the Code in respect of all cases of witnesses giving or fabricating false evidence in judicial proceedings? (2) If not, for what class of such witnesses are the provisions of Section 476 of the Code still available? Section 476 Cr. P. C. reads thus: '476. Procedure in cases mentioned in Section 195. - -(1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub -section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may after such preliminary inquiry, if any, as it thinks necessary, record a find -ing to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is nonbailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate. Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint. For the purpose of this sub -section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200. (3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided.' Section 476 -A confers the same powers on a superior Court in case the subordinate Court has omitted to exercise them. Section 476 -B provides for appeals in respect of orders making a complaint under Sections 476 and 476 -A or refusing to make the same. Section 477 is no longer there in the code because it has been repealed. Section 478 provides for case committed before any civil or revenue Court or brought to the notice of such Court in the course of a judicial proceeding if it is triable exclusively by the High Court or Court of Session or such Court thinks that it ought to be tried by the same Court; in that case instead of filing a complaint as provided in Section 476 the Court itself can complete an enquiry and commit the accused to take his trial before the High Court or the Court of Session. Section 479 provides that such a commitment should be made not by the civil or revenue Court directly but through the Presidency Magistrate, District Magistrate or other Magistrate authorised to commit for trial.;