BHARGAVA, J. - (1.) THIS is a revision petition against the order of the learned Sessions Judge, Jodhpur dated 3rd January, 1961 rejecting the petitioner's revision against the order of the City Magistrate Jodhpur dated 31st October, 1960 in issuing a notice under sec. 476 of the Code of Criminal Procedure to the petitioner to show cause why he should not be prosecuted under sec. 199 of the Indian Penal Code.
(2.) THE facts which have given rise to this application are that the petitioner and the opposite party had filed complaints against each other under S. 323 of the Indian P. C. which were pending in the court of Shri Gulabsingh Magistrate, Jodhpur (under training ). Petitioner submitted an application under sec. 528 (2) of the Code before the City and Sub Divisional Magistrate, Jodhpur for withdrawal of the case from the court of Shri Gulabsingh and supported the application with an affidavit. This application came for decision on 28th, July, 1960 and the learned Sub Divisional Magistrate passed the following order: - "28. 7. 1960. Counsel of the parties are present. Now as the Magistrate against whom this transfer application was made has been transferred to another place, the application has become infructuous. It is therefore, rejected. File. Orders passed. " On the next date i. e. , 29th July, 1960 the opposite party submitted an application before the Sub Divisional Magistrate that the petitioner had filed a false affidavit in support of his application and he should, therefore, be prosecuted under sec. 199 of the Indian Penal Code. THE learned Sub Divisional Magistrate issued a notice of the said application to the petitioner. THE petitioner appeared in the court of the City Magistrate and raised a preliminary objection that the court had no jurisdiction to issue such notice in view of the provisions of sec. 479a (6) of the Code as the court did not record an order as provided under sec. 479a (1) of the Code at the time of passing the final order disposing of the application under sec. 528 (2) of the Code of Criminal Procedure. THE relevant provisions of sec. 479a may be quoted here. "section 479 A (1 ). Notwithstanding anything contained in sec. 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence at any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used at any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presi ding officer of the Court setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before 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. Section 479a (6 ). No proceedings shall be taken under sec. 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this section. " THE learned City Magistrate rejected the preliminary objection. THE petitioner then filed a revision application before the Sessions Judge, Jodhpur but without any success. The petitioner has now come to this Court and the same objection has been urged here. Particular reference is made to sub-section (6) of sec. 479-A which bars the proceedings being taken under sec. 476 incases where sec. 479-A is applicable. In support of his contention learned counsel for the petitioner relies upon the decision in Amolak Vs. State (1) wherein it was held that: - "sec. 479-A of the Criminal Procedure Code specially lays down the procedure for the prosecution of witnesses suspected of having given false evidence or of having fabricated false evidence in relation to a judicial proceeding in a civil, revenue or criminal court, and this proce dure is self-contained and expressly excludes the applicability of secs. 476 to 479 to such cases. Sec. 479-A overrides secs. 476 to 479 in so far as the cases which fall within the ambit of sec. 47 9-A are concerned. Learned counsel has also referred to Parshotam Lal L. Vir Bhan Vs. Madan Lal Bashambar Das (2), Narajappa Vs. ehikkaramiah (3), Jai Bir Singh Vs. Malkhan Singh (4), In re S. Abdul Jabbar (5), In re Ponneri Dasi Reddi (6), In re, Muniamma (7 ). The non-applicant who has personally argued his case has urged that sec. 479-A is not applicable in this case. It is submitted firstly that the petitioner did not appear before the City Magistrate as a witness; secondly that the notice for prosecution is not for giving false evidence or intentionally fabricating false evidence but is for an offence punishable under sec. 199 of the Indian Penal Code and thirdly that the learned City Magistrate had no occasion at the time of the passing of the final order to go in to the question whether the petitioner's affidavit was false or not and it is still open to him to take action under sec. 479a against the petitioner in case the case comes within its purview. For his last submission he has referred to Duma Prasad Khosla Vs. The State of Uttar Pradesh (8), where a Bench of that Court dissented from the earlier view taken in Jai Bir Singh's case (4), State of Bombay Vs. Premdas Sukritdas Gadhewal Koshti and C. P. Kasi Thevar Vs. Chinniah Konar (10 ). Inter-aliafor the application of sec. 479-A it is necessary that the: - 1. Person against whom a complaint is filed should have appeared as witness before that court in any stage of the judicial proceeding. 2. Court should be of openion that he has falsely given false evidence or has fabricated false evidence. If these conditions are not satisfied the case will not fall within the mischief of sec. 479-A and consequently sub-sec. (6) will not stand as a bar to proceedings being taken under sec. 476 of the Code. Sec. 479-A was enacted with the object of rooting out the evil of perjury and provides for an expeditious and effective manner of dealing with serious cases of intentionally fabricating evidence in judicial proceeding. Its application is confined to persons appearing as a witness before the court. A person can be said to have appeared as a witness only when he submits himself to the normal procedure provided for the examination of the witnesses; i. e. examination-in-chief, cross-examination and re-examination. There are provisions both in the Criminal Procedure Code and Civil Procedure Code which permit the giving of evidence by affidavits such as sec. 510-A and Order XIX rule 1; but in such cases a person giving the affidavit cannot be said to have appeared as a witness in the court. An application under sec. 528 (2) of the Code of Criminal Procedure is not required to be supported by any affidavit. Therefore, a person who merely voluntarily files a declaration in the court in support of such an application, cannot be said to have appeared as a witness before the court. It may be that if the affidavit is found to be false, he may be prosecuted for committing perjury. But the provisions of sec. 479-A would not be attracted to his case. In order therefore, that sec. 479-A may be applicable both the requirements should be satisfied, i. e. , the person has appeared as a witness and further has been found to have given or fabricated false evidence in any stage of the judicial proceeding. In the present case as the petitioner did not appear as witness before the court and only filed a declaration in support of his application, provisions of sec. 479-A would not apply to his case and sub-sec. (6) cannot be pleaded in bar. In this view of the matter, it is not necessary to decide the other contentions raised on behalf of the opposite party. This revision application has, therefore, no force and is, therefore, dismissed. . ;