- (1.) IN a case under Section 379 of the Indian Penal Code, Babu alias Kudratullah was tried in the Court of Munsif Magistrate, Jodhpur District. This case was registered by the police on the report of Abdul Shakoor. Abdul Shakoor and the other petitioners appeared as prosecution witnesses in that case. The learned munsif Magistrate while acquitting the accused recorded a finding as required by section 479a (1) of the Code of Criminal Procedure and directed a complaint to be drawn separately against each of the petitioners under Section 193 of the Indian penal Code. Being aggrieved by the said order the petitioners preferred a revision application before the Additional Sessions Judge, Jodhpur, but the same was rejected. They have now come up to this Court in revision.
(2.) IT has been urged inter alia by the learned counsel of the petitioners that the order of the learned Munsif Magistrate to draw and forward a complaint against the petitioners under Section 193 of the Indian Penal Code without giving them an opportunity of being heard, is contrary to law. It is urged that Section 479a (1) of the Code requires that before a complaint is made, the witness should be given an opportunity of being heard.
(3.) IN Criminal Revn. No. 56 of 1961, Mehtab Chand v. State, decided on 9th january 1962, (Raj), similar question was raised before me and I then expressed the view that the provision of giving an opportunity to the witness of being hoard under Section 479a of the Code was mandatory and could not be dispensed with. It was also observed in that case that ''the words 'if it so thinks fit" refer to the making of a complaint and not to the giving of an opportunity to the witnesses of being heard. " The observations made in the above case are clearly applicable in the present case and that decision should also govern it. But learned counsel for the State has brought to my notice a Bench decision of Andhra Pradesh High Court in In re, Javvaji Uthanna, AIR 1964 Andh Pra 368, where a contrary view has been taken and in view of that decision learned counsel has asked me to reconsider my previous decision. The learned Judges in the above case observed; "the whole controversy therefore, turns upon the expression 'and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof. ' If tho words 'if it so thinks fit' govern the expression 'make a complaint' there can be little doubt 'giving the witness an opportunity of being heard' is a pre-essential requisite for making complaint. On the other hand, if those words qualify the expression 'after giving the witness an opportunity of being heard' issuance of notice would be a matter of mere discretion. " It was further observed that : "sub-section (1) construed in isolation i. e. , without regard to the other sub-section of the same section may render the first mentioned interpretation highly probable, nay, having regard to the punctuation may make it the only correct interpretation. But that is not the way how a section must be interpreted. Each part of it ought to be so construed as to be consistent with the other, removing if necessary all apparent inconsistency so far as it is possible and making the scheme or the purport of the whole section coherent and intelligible. " The learned Judges quoted Maxwell on the Interpretation of Statutes, 11th Edition at pages 27 and 28 that : ". . . . . . . . It is an elementary rule that construction is to be made on all the parts together, and not of one part only by itself. . . . . . Such a survey is often indispensable, even when the words are the plainest : for the true meaning of any passage is that which (being permissible) best harmonises with the subject and with every other passage of the statute. " It was observed that : "while construing sub-s. 1, we have to necessarily consider Sub-section 5 and Sub-section 5 provides : ". . . . . Where the Appellate Court makes such complaint the provisions of Sub-section (1) shall apply accordingly but no such Order shall be made, without giving the person affected thereby an opportunity o being heard. " On a consideration of Sub-section (5) their Lordships came to the conclusion that: "it was difficult to accept the contention that Sub-section (1) contains a mandatory provision as to issuance of notice before making a complaint and this is mainly because if that were so, reference to Sub-section (1)in Sub-section (5) would itself have been sufficient, and the Legislature in order to express its mind would not have been further impelled to add a significant clause beginning with the word 'but'. It cannot be accepted either that this clause is superfluous, for the word 'but' by itself must negative such contention. " Their Lordships however, agreed with the following observations of Jagadisan J. in rukmani Bai v. C. R. Govindaswamy Chetty 1963-2 Cri L J 355 (Mad) : - "prosecuting a person for an offence under the Indian Penal Code is certainly a grave matter and however much it may be called for in the interests of justice the person who is to face the prosecution should in all fairness be given an opportunity to vindicate himself if he can even prior to the commencement of the prosecution in cases governed by Sections 476 and 479-A, Criminal P. C. " Thus the view taken in the above case in short is that Sub-section 1 of Section 479-A, if read by itself, contains a mandatory provision for giving an opportunity of being heard to the witness before a complaint is filed against him. But if read with Sub-section 5 of Section 479-A, it means that giving of such opportunity is discretionary with the court. That discretion, however, is to be exercised on principles of justice and equity and the rule of audi alteram pattern should be followed. The order of the court below was set aside by their Lordships because the discretion was not properly exercised by the court and the witness was not given an opportunity of being heard before a complaint was made against him.;