MOSTT. SHARDA SINGH Vs. GANGA SINGH AND MAHENDRA SINGH

JUDGEMENT

(1.) This appeal has been filed by the appellant under Sec. 341 of the Code of Criminal Procedure, 1973 (hereafter called 'the New Code') against the order, dated the 16th December, 1974, passed by the Additional Sessions Judge, Patna, in Miscellaneous Case No. 5 of 1968. The facts relevant for the disposal of this appeal, in short, are that the appellant had filed an application under Sec. 479A of the Code of Criminal Procedure, 1898 (for short 'the Old Code') before the 1st Additional Sessions Judge, Patna, bearing Miscellaneous Case No. 5 of 1968, for filing a complaint against the respondents for their prosecution. From the said petition, it appears that the appellant had brought a succession certificate case No. 21 of 1964 in the court of the District Judge, Patna, in which respondent No. 1 Ganga Singh had filed an objection to the claim of the appellant. The said case was subsequently transferred to the court of the 1st. Additional District Judge, Patna, The said respondent No. 1 contested the said proceeding and in the said proceeding, it is alleged that respondent No. 1, in collusion with respondent No. 2, forged and fabricated entries in the Death Register purporting to be of the death of one Maheshwari Devi, which was produced by respondent No. 1 in the said proceeding. The succession certificate case was finally heard and decided in favour of the appellant by judgment, dated 14.12.1966 wherein it was held that the said document was forged and fabricated. As against the said judgment, respondents filed an appeal in this Court being Miscellaneous Appeal No. 17 of 1967 which was dismissed. From the records, it appears that the finding of the trial court to the effect that the documents were forged and fabricated was upheld by this Court in the aforesaid appeal. On the basis of the said finding, the appellant filed an application under Sec. 479A of the Old Code for prosecution of the respondents, as mentioned above, which was rejected by the impugned judgment. Hence, this appeal under Sec. 341 of the New Code.

(2.) Sec. 479A of the Old Code was added by the Criminal Procedure Code (Amendment) Act 26 of 1955. The learned 1st Additional Sessions Judge has rejected the application on the ground that though a finding had been recorded that the documents in question (Exts. D and D/1) were forged and fabricated documents yet no finding had been recorded to the effect that for the eradication of this evil of perjury and fabrication of false evidence and in the interest of justice, it was expedient that respondents should be prosecuted for the offence which appeared to have been committed by them. Sec. 479A of the Old Code laid down procedure in certain cases of false evidence and empowered any civil, revenue or criminal court to make a complaint in writing if it is of opinion that any person appearing before it has intentionally fabricated false evidence for the purpose of being used at any stage of the concerned judicial proceeding, after recording a finding to the effect that such person should be prosecuted in the interest of justice for the eradication of perjury and fabrication of false evidence notwithstanding anything contained in Ss. 476 to 479 inclusive of the Old Code. The instant appeal has been filed under Sec. 341 of the New Code. Sec. 341 lays down that any person on whose application any court, other than a High Court, has refused to make complaint under sub -section (1) or sub -section (2) of Sec. 340 of the New Code or against whom such a complaint has been made by any such court, may appeal to the court to which such former court is subordinate within the meaning of sub -section (4) of Sec. 195 of the New Code. While examining the relevant provisions of the New Code, I find that Sec. 340 of the New Code says that when an application is made to any court and the court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to it clause (b) of sub -section (1) of Sec. 195 of the New Code, which appears to have been committed in or in relation to a proceeding in that court, such court may, after preliminary enquiry, if thinks necessary, make a complaint thereof in writing and Sec. 341 of the New Code gives a right to any person to appeal in case his application under Sec. 340 of the New Code is rejected by the court concerned. It is relevant to state here that Sec. 340 of the New Code is equivalent to Sec. 476 of the Old Code and Sec. 341 of the New Code is equivalent to Sec. 476B of the Old Code. Sec. 344 of the New Code deals with summary procedure for trial for giving false evidence. It lays down that if at the time of delivery of any judgment or disposing of any judicial proceeding, a court of session or magistrate of the 1st class, expresses an opinion to the effect that any witness or person appearing in such proceeding has knowingly or wilfully given false evidence or has fabricated false evidence with mala fide intention and if the concerned court is satisfied that it is necessary and expedient in the interest of justice that such person should be tried summarily for giving or fabricating false evidence, may take cognizance of the offence and after giving a reasonable opportunity to the offender, try such offender and sentence him to imprisonment for a term which may extend to three months or to a fine which may extend to five hundred rupees or with both.

(3.) In the instant case, I find that the aforesaid documents were found to be forged and fabricated and, no doubt, have been used by these respondents in the aforesaid succession certificate proceeding in the year 1964 -65. The matter also came up before this Court. But at that time, neither the lower court nor this Court recorded a finding that it was necessary and expedient in the interest of justice that the respondents should be tried for fabrication of false evidence, as laid down in Sec. 479A of the Old Code.