Arjuna Chettiar vs Navaneethammal

Maharajan, J.—This is a petition to revise the order of the leaned District Judge of North Arcot, who confirmed the order of the learned

District Munsif of Tirupattur, dismissing the Petitioner''s petition u/s 195(1)(b) and (e), Code of Criminal Procedure for sanctioning the prosecution

of Respondents 1 to 3. Navaneethammal the 1st Respondent, who is the wife of the 2nd, instituted a suit against Arjuna Chettiar, the Petitioner, in

O.S. No 286 of 1962 on the file of the District Munsif''s Court, Tirupattur, for declaration of her title to certain properties and for recovery of

possession thereof.

She based her title upon a sale deed 21st March 1967. She also relied upon two lease deeds executed by the Defendant in favour of her

predecessor-in-title. The Defendant who admitted the earlier lease deed, denied the latter and contended that after the expiry of the first lease, he

surrendered possession of the land and subsequently acquired title thereto by adverse possession. The learned District Munsif upheld the title of

the 1st Respondent-Plaintiff, rejected the plea of adverse possession raised by the Petitioner-Defendant and granted a decree for declaration and

possession. In the course of his judgment, however, he rejected the disputed lease deed as forged, after disbelieving the evidence of the 2nd

Respondent, who is the husband of Navaneethammal and who was examined as P. W. 3 and the evidence of the 3rd Respondent herein, who was

examined as P. W. 2 and who claimed to have attested the lease deed Ex-A-4. Notwithstanding this finding the learned District Munsi upheld the

title of Navaneethammal and rejected the plea of Arjuna Chettiar, the Petitioner.

It is after the suit ended against him the Petitioner filed a petition u/s 195(1)(b) and (c) Code of Criminal Procedure for sanctioning prosecution

of the three Respondents. The learned District Judge in appeal, held that the petition was not maintainable and this finding is challenged revision.

Section 476 Code of Criminal Procedure provides:

When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the

interests of justice that an enquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), which

appears to have been committed in or In relation to a proceeding in that court, such Court may, after such preliminary enquiry, if any, as it thinks

necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the court.

Section 479-A Clause (1) Code of Criminal Procedure provides that,

Notwithstanding anything contained In Sections 476 to 479 inclusive, when any Civil 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 proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the

Interest 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

therefore and, 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.

Clause (6) of Section 479-A prescribes that

No proceedings shall be taken under Sections 476 to 479 inclusive of the prosecution of a person for giving or fabricating false evidence, if in

respect of such person proceedings may be taken under this section."" It has been authoritatively held by the Supreme Court in Shabir Hussain

Bholu v. State of Maharashtra 1964 (1) S. C. J. 609 that the provisions of Sections 476 to 479 of the Code of Criminal Procedure are totally

excluded where an offence it of the kind specified in Section 479A. "" It would therefore, follow that if the offence alleged to have been committed

by the Respondents falls, under the category of offences mentioned in Section 479-A, no proceeding can be taken against them unless the court

has, u/s 479-A, Code of Criminal Procedure recorded at the time of the delivery of the judgment or final order disposing of the suit, a finding to the

effect that the witnesses have intentionally given false evidence or have intentionally fabricated false evidence for the purpose of being used in 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 witnesses should be prosecuted for the offence which appears to have been committed by them. The judgment of the learned

District Munsif in the original suit shows that he did not record a finding to the above effect. of the three Respondents, the 1st Respondent was not

examined as a witness at all in the original suit. It is only Respondents 2 and 3 who appeared before the District Munsif as witnesses.

In the absence of a contemporaneous finding that Respondents 2 and 3 had intentionally given evidence for the purpose of being used in the

judicial proceeding, the subsequent petition filed by the Petitioner asking for sanction to prosecute Respondents 2 and 3 for the offence mentioned

in Section 479-A Code of Criminal Procedure is not maintainable in law.

But this does not mean that sanction ought not to be accorded for prosecuting the Respondents for offences not falling u/s 479-A but falling u/s

476 Code of Criminal Procedure Section 471 I.P.C. provides that ""whoever fraudulently or dishonestly uses as genuine any document which he

knows or has reason to believe to be a forged document shall be punished in the same manner as If he had forged such ""document.'' If

Respondents 1 to 3 had fraudulently or dishonestly used as genuine Ex A-4 knowing or having reason to believe it to be a forged document, they

would have committed an offence u/s 471. Section 195(1) Clause (e) Code of Criminal Procedure prescribes that no court shall take cognizance

of any offence punishable u/s 471 when such offence is alleged to have been committed by a party to any proceeding in any court in respect of a

document produced or given in evidence in such proceeding except on the complaint in writing of such court and Section 476 Code of Criminal

Procedure provides that such court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to the effect that It is

expedient in the interests of justice that an enquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or

Clause (a) which appears to have been committed in or in relation to a proceeding in that court and then take a complaint thereof in writing signed

by the presiding officer of the court. Such a complaint can be made by the court either on application made to it in this behalf or even suo motu. As

an offence u/s 471 I.P.C. committed in relation to a proceeding in a civil court is not of the kind described in Section 479-A Code of Criminal

Procedure it is not necessary for the court at the time of the delivery of the judgment or final order disposing of such proceeding to record a finding

as a condition precedent to Its making a complaint. It is open to the Petitioner In such a ease to file an application u/s 476, Code of Criminal

Procedure, even after delivery of the judgment or final order disposing of such proceeding to record a finding as a condition precedent to its

making a complaint. It is open to the Petitioner in such a case to file an application u/s 476 Code of Criminal Procedure even after delivery of the

judgment in the original suit and ask the court to file a complaint. The view of the lower courts that such a petition is net maintainable is clearly

erroneous.

But one other legal impediment in the way of the Petitioner is this. In Govinda Iyer v. Rex 42 Mad. 540 a Full Bench of this High Court confined

Section 476 Code of Criminal Procedure to the exact offences referred to in Section 195, Code of Criminal Procedure with the result that

offences in Section 195(1)(c) must be offences ""alleged to have been committed by a party"", (vide Sengoda Goundan and Another Vs. Vayyapuri

Goundan, says that no court shall take cognizance of any offence punishable u/s 471, I.P.C. when such offence is alleged to have been committed

by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding except on the complaint in

writing of such Court. It would follow that when such an offence is alleged to have been committed not by a party to any proceeding but by

Respondents 2 and 3, who were merely witnesses in the proceedings, the complaint of such court is net required as a condition precedent, to the

criminal court taking cognizance of the offence. But so far as the 1st Respondent is concerned, she has been a party to the proceeding and if an

offence u/s 471 is alleged to have been committed by her, she cannot be prosecuted in the criminal court except on the complaint in writing of the

court in which the offence is alleged to have been committed. I would therefore held that so far as the offence u/s 471 Code of Criminal Procedure

is concerned a complaint in writing by the District Munsif would be necessary only in respect of the 1st Respondent, who was a party to the

proceedings, but not in respect of Respondents 2 and 3 who were not parties thereto.

The next question arises whether u/s 476, Code of Criminal Procedure it is expedient in the interests of justice that the 1st Respondent, who

was a party to the proceedings, should be prosecuted for the offence of using a forged document in the civil proceeding knowing or having reason

to believe that it was forged. The 1st Respondent is a woman, it appears from the judgment in O. S. No. 296 of 1962 that she took No active

interest in the prosecution of that suit and that it was her husband, the 2nd Respondent who produced Ex-A 4 in Court and used it in support of

her title. Even the sale deed obtained in the 1st Respondent''s name appears to have been obtained by her husband, the 2nd Respondent and

presumably for his benefit. Further, even the finding recorded by the learned District Munsif appears to have been based on opinion evidence and

not upon any positive testimony clinching the issue. In these circumstances, it is difficult to hold that it is expedient in the interests of justice to direct

the prosecution of the 1st Respondent.

In the result, I confirm the orders of the Courts below refusing to direct prosecution of the Respondents, but I do so, on different grounds, and

dismiss the petition No costs.