A. Mahalinga Bhatta vs Venkataramana Bhatta and Others

Anna Chandy, J.—The question that arises for consideration in this appeal is whether a petition u/s 476 Criminal Procedure Code for holding an enquiry regarding perjury, alleged to have been committed during a trial, is competent when the trial Judge himself had taken no action in the matter u/s 479-A. The petitioner was one ot the accused persons in Sessions Case No. 31 of 1959 on the file of the Additinoal Sessions Judge of Tellicherry. The case was initiated by a private complaint and the cnargo against the accused was that they set fire "to the two sheds belonging to the complainant. The accused were acquitted. After the order of acquittal was confirmed in appeal the present petition was filed against the com. plainant and some of the prosecution witnesses. This petition was dismissed and the petitioner has come up in appeal.

The arguments placed before me were confined solely to the scope of Section 479A, that is whether Section 479A will act as a bar to action being taken u/s 476, Section 479A was added to the Criminal Procedure Code by an amendment in 1955. The relevant portions of the section are:

"479-A(I) Notwithstanding anything contained in Sections. 476 - 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 in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of Being used in any stage of the judicial proceedings, 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 tor 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 proceedings, record a finding to that effect stating its reasons therefore ana may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing, signed by the presiding 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 ana may bind over any person to appear and give evidence before such Magistrate.

xxxxx (6) No proceedings shall be taken under Sections 476 - 479 Inclusive for the prosecution of 3 person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this section.".

The view taken by the lower Court is that with me introduction of Section 479A Sections 476 - 479 have become inapplicable to cases of perjury and fabrication of false evidence. Section 479A ''gives a complete set of rules tor me initiation and conduct of such cases and where the court, which heard the case in which the perjury is alleged to have been committed, takes no action against the offender u/s 479A, simultaneously with the delivery of judgment, no prosecution for perjury can be started at a later stage. In support of this view the learned Judge referred to a number of decisions of the various High Courts,'' among them -- Dhan Singh Khadak Singh Raghubansi Vs. Ramsaran Dariyao, The State Vs. Bijli Pathak and Another, , Amolak Vs. State, and State v. Ugam Singh AIR 1961 Raj 268 . The learned counsel for the appellant, on the oTner hand, argues that Section 479-A was meant only to provide an alternative procedure to be followed in flagrant and serious cases of perjury and so the provisions of Section 476 are still available for proceeding against witnesses whose cases cannot be brought u/s 479A for one reason or other. The learned counsel sought support for this position in the decisions reported in Durga Prasad Khosla Vs. The State of Uttar Pradesh, , Lal Behari Vs. State, and State of Bombay Vs. Premdas Sukritdas Gadhewas Koshti and Others, .

There is thus a marked difference of opinion between the various High Courts regarding the scope of Section 479A. However the controversy seems to have been resolved by a recent and as yet unreported decision of the Supreme Court which was brought to our notice at the close of the arguments. In Shabir Hussain Bhola v. state of Maharashtra, SC Criminal Appeal No. 92 of 1961 decided on 28-9-1962: Shabir Hussein Bholu Vs. State of Maharashtra, Justice Mudholkar, ex-pressed the view that Section 479A covers all cases of intentional perjury and fabrication of false evidence and the distinction sought to be drawn between flagrant offences and offences which are not flagrant or between serious offences and offences which are not serious, is unwarranted. His Lordship held that:

". . . .the view taken In Parashottam Lal v. Madan Lal Bashambar Das AIR 1959 Punj 145 and Amolak Vs. State, to the effect that the provisions ot Sections 476 - 479 are totally excluded where an oftence\\is of the kind specified in Section 479A (1) is correct."

The learned counsel for the appellant conceded that in view of this decision the position taken By him that the trial Judge was competent to entertain a petition u/s 476 even though no action u/s 479A was taken at the time of the delivery of judgment cannot be sustained.

The appeal therefore fails and is dismissed.