Decided on January 02,1969

Gopalakrishnareddy Respondents

Referred Judgements :-



VAIDYA,J. - (1.)The facts giving rise to this C.M.A. under section 476. A of Criminal Procedure Code may briefly be stated : The plaintiff-respondent filed a suit O.S. No. 20 of 1963 for recovery of possession of the suit premises on the expiry of the lease period. Along with the suit, he filed an application I. A. No. 671 of 1963 for the appointment of a Receiver to take possession of the suit schedule properties. In the affidavit in support of the said application he averred that as the defendant-appellant denied the execution of the lease deed, he was constrained to present the sale deed for compulsory registration before the Registrar and that before the Registrar also the defendant denied the execution in the first instance and later on admitted the same and the document was then registered. The plaintiff's case is that the defendant then in his counter-affidavit filed in I.A. No. 671 of 1963 opposing the application for appointment of a Receiver made a false statement that he did not deny the execution of the sale deed at any time and that the lease deed was not presented for compulsory registration and that the said statement is contrary to his statement made in his verified counter before the District Registrar in the proceedings for the registration of the lease deed and also contrary to the statement on oath made denying the execution of the lease deed before the I Registrar. The plaintiff therefore filed I. A. No. 698 of 1963 which was renumbered as I. A. 1408 of 1965 to make an enquiry into the commission of the offence of giving false evidence within the meaning of section 191 of the Indian Penal Code and to make a complaint thereof and forward the same to a competent Magistrate and pass such other order or orders. This application was filed by the plaintiff under section 476 (1) read with section 195(1) (b) of Criminal Procedure Code. In the counter-affidavit filed by the defendant he stated that he did not give any false evidence and at any rate the counter-affidavit tiled in I. A. No. 671 of 1963 cannot be treated as evidence and cannot be the subject of a charge under section 193 I.P.C. and that no sanction for prosecution for filing the affidavit can be granted.
(2.)The lower Court after making an enquiry came to the con elusion that the defendant intentionally made a false statement knowing that statement to be false and that it was done with the intention of misleading the Court and that it is therefore proper and in the interests of justice that the defendant should be prosecuted for the offence of giving false evidence. The plaintiff's petition was thus allowed and it was ordered that the necessary complaint should be filed. It is against this order that the defendant has come up in appeal.
(3.)The learned counsel for the appellant raised before me the following contentions :
(1) To the instant case section 476 (1) Cr. P. C. is applicable but the case is governed by the provisions of section 479-A Cr. P. C. Under section 479-A of the Criminal Procedure Code, it is only at the time of giving a final decision in the suit or in the proceedings in which false evidence is given that a Court has to pass an order and the order can be passed on a separate application at a stage prior to giving any decision in the proceeding in which the false evidence is alleged to be given. As the final order in the Receiver petition was passed later than the order passed in the I. A. this order cannot be sustained in view of the provisions of section 479-A Cr. P. C.

(2) If the evidence given before Registrar and the counter filed before him are read, it woald show that there was no false statement made by the defendant in his counter-affidavit.

(3) The statement made by the plaintiff in his affidavit that the defendant had denied the execution of the less deed before the Registrar and the contrary statement in the counter affidavit does materially affect the disposal of the Receiver Petition and cannot therefore be said to have been intentionally made.

(4) No Proceedings can be taken either under section 476 for under section 479-A Cr.P.C. at the instance of a private party.

(5) The Court should have framed a charge and referred it merely to the Magistrate for enquiry.


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