A.S. Shaik Mohamed Maracaiyar vs C. Mohideen Kutty

(1) This revision petition is filed by the landlord against the order directing a complaint to be filed under Ss. 195 and 476 Crl.P.C. against the

landlord-petitioner for offences under Ss. 191, 192, 193 and 465 I.P.C.

(2) The Petitioner is the landlord of premises No. 206, Angappa Naick St., and the respondent is his tenant. The respondent filed H.R.C. 4968 of

1958 before the Chief Rent Controller for fixation of fair rent in respect of the said premises. The petitioner contested this application and in the

course of the proceedings he filed Ex. R-4 purporting to be an office copy of the notice dated 28-2-1959 calling upon the respondent to furnish a

list of his sub-tenants and the rents collected from them and Ex. R-5 by purporting to be a reply sent to the landlord by the tenant and said to have

been signed by the dismissed clerk of the tenant stating that on an average about Rs. 400 was being collected from the sub-tenants. It was found

after an elaborate enquiry that these two documents Ex. R-4 and R-5 were not genuine documents but had been fabricated by the landlord to

support his case that a sum of Rs. 275 would be the fair rent. A fair rent of Rs. 200 per month was fixed after inspection of the premises. There

was an appeal by the landlord, where also the learned Judge after discussing the evidence held that Ex. R-4 and R-5 were spurious documents.

The matter came up in revision before Jagadisan and Srinivasan JJ. and the learned Judges while confirming the finding of the lower courts that Ex.

R-4 and R-5 are spurious documents also observed that ""Instances where a party to an action is found to have produced forged and fabricated

documents should not be allowed to pass mechanically but should be dealt with in an appropriate and deterrent manner"". After these proceedings

came to an end, the tenant filed I.A. 678 of 1962 out of which this revision arises praying for an order directing the institution of a complaint under

S. 195 and 476 Cri.P.C. against the landlord for the offences aforesaid. The Rent Controller found that an offence Under S. 196 read with S. 192

had been made out against the landlord and directed that a complaint be filed against him before the Chief Presidency Magistrate, Madras. On

appeal filed by the landlord, the Second Judge, Small Cause Court, confirmed the finding of the Rent Controller. This revision petition is filed by

the landlord against the dismissal of his appeal.

(3) Learned counsel appearing for the landlord petitioner contended before me that the application filed by the tenant for instituting a complaint

against the landlord is not maintainable in view of S. 479A, Cri.P.C. which provides that a complaint ought to have been filed at the time of

delivery of the judgment, and that S. 476 Cri P.C. is not also applicable. It is urged that there was undue delay of one year and ten months in

taking these proceedings against the landlord. Further, it is contended that the Rent Controller has no jurisdiction to pass an order under S. 476 as

he has become functus officio after the disposal by him of the application for fixation of fair rent.

(4) The main point for consideration is whether the application of the tenant is not maintainable in view of S.479-A Cri P.C. as a complaint was not

filed at the time of delivery of the judgment. The provisions of this section are special provisions relating to the offence of forgery and fabrication of

false evidence by witnesses and are self-contained. Section 479-A provides that the stage at which a proceeding for filing a complaint should be

taken is the stage when the judgment or the order in the case is being pronounced.

(5) The Supreme Court had occasion to consider the scope of S. 479A in Shabir Hussein Bholu Vs. State of Maharashtra, . The facts in that case

are these: The appellant before the Supreme Court, who was a witness for the prosecution, gave contradictory statements before the Committal

Court and the Sessions Court during a murder trial. The Sessions Judge at the end of the trial passed an order directing the Registrar of the

Sessions Court for Greater Bombay to take proceedings against the witness for prosecuting him for perjury. In pursuance of this order a notice

was issued to the appellant requiring him to show cause why he should not be prosecuted under S. 193 I.P.C. for making contradictory statements

regarding the same incident. After hearing the appellant''s counsel, the Sessions Judge ordered the complaint to be filed. At the trial before the

Chief Presidency Magistrate, the appellant raised an objection that the provisions of S. 479A Cri.P.C. had not been complied with by the

Additional Sessions Judge and that consequently the Chief Presidency Magistrate could not take cognizance of the offence. The Chief Presidency

Magistrate upholding the objection discharged the appellant. The revision preferred by the State was allowed by the High Court and the High court

set aside the discharge of the appellant and remanded the case for the trial by the Chief Presidency Magistrate. The High Court while remanding

the case observed that though the provisions of S. 479A Cri.P.C. had not been complied with, it was still open to the Chief Presidency Magistrate

to take action on the complaint under Ss. 476 to 479 Cri.P.C. Against the order of the High Court the appellant preferred an appeal to the

Supreme Court. Dealing with the scope of Ss. 479-A and 476 Cri P.C., the Supreme Court observed at page 820:

It is not as if..... that the court has an option to proceed under either S. 479-A or under S. 476 and that if it does not take action under S. 479-A

it can do so under S. 476. The jurisdiction of the court to make a complaint against a person arises only from the fact that that person has given

false evidence or fabricated false evidence at any stage of the proceeding disposed of by it. The conditions required to be fulfilled by the court and

the procedure to be followed by it for the purpose of exercising its jurisdiction and making a complaint are not to be equated with the conditions

which give the court jurisdiction to make a complaint. From this it would follow that whereas S. 476 is a general provision dealing with the

procedure to be followed in respect of a variety of offences affecting the administration of justice, in so far as certain offences falling under Ss. 193

to 195 and S. 471 I.P.C. are concerned, the court before which that person has appeared as a witness and which disposed of the case can alone

make a complaint."" The Supreme Court held that the Chief Presidency Magistrate was right in discharging the appellant and set aside the order of

the High Court remanding the case for trial by the Chief Presidency Magistrate.

(6) The Supreme Court also considered the scope of S. 479-A in Raghubir Prosad Dudhewalla Vs. Chamanlal Mehra and Another, and observed

thus:

The special procedure of S. 479-A is prescribed only for the prosecution of a witness for the act of giving false evidence in any stage of judicial

proceedings or for fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. There is nothing in the section

which precluded the application of any other procedure prescribed by the Code in respect of another offences. In applying the principle that a

special provision prevails over a general provision, the scope of the special provision must be strictly construed in order to find out how much of

the field covered by the general provision is also covered by the special provision. Examining the special procedure prescribed by S. 479-A in that

light, it is important to notice that the act of intentionally giving false evidence in any stage of a judicial proceeding and the act of fabricating false

evidence for the purpose of being used in any stage of a judicial proceeding mentioned in S. 479-A of the Cri.P.C. are the acts which are made

punishable under S. 193 I.P.C. and cognate sections in Chapter XI...... It will be unreasonable to read into S. 479-A the meaning that where a

person who appears to have committed on offence under S. 193 I.P.C.--by giving false evidence or fabricating false evidence--appears to have

committed some other offence also, say forgery, for the very purpose of fabricating false evidence, complaint for such other offence also can be

made under S. 479A, Cri.P.C.

The scope of Ss. 479-A and 476 Cri P.C. was again considered in Babu Lal Vs. State of Uttar Pradesh and Others, . The facts there are the

following: In a civil proceeding one Babulal, the appellant before the Supreme Court, gave false evidence and relied on a forged document in

support of his case. Before the disposal of the suit the plaintiffs had filed an application for action being taken against Babulal for giving false

evidence before the court. The munsif did not dispose of the application by his judgment deciding the suit. After the disposal of the suit, the

plaintiffs moved the munsif for an order on their application. The Munsif held that no action could be taken against Babulal for the offence of

intentionally giving false evidence as such action was barred by S. 479A but in his opinion it was expedient in the interests of justice that a

complaint be filed against Babulal for offences under Ss. 463 and 471, I.P.C. Pursuant to this order, a complaint was filed against Babulal charging

him with committing an offence under S. 471 read with S. 463 I.P.C. The order passed by the trial Court was confirmed in appeal by the District

Judge and a revision challenging the order was dismissed by the High Court. The matter was then taken up in appeal by Babulal to the Supreme

Court. The Supreme Court observed thus at Page 727:

It is true that some of the ingredients of the act of fabricating false evidence which is penalised under S. 193 I.P.C. and of making a false

document and thereby committing forgery within the meaning of Ss. 463 and 464 I.P.C. are common. A person by making a false entry in any

book or record or by making any document containing a false statement may, if the prescribed conditions of S. 463 are fulfilled, commit an offence

of forgery. But the important ingredient which constitutes fabrication of false evidence within the meaning of S. 192 I.P.C. besides causing a

circumstances to exist or making a false document--to use a compendious expression--is the intention that the circumstance so cause is to exist or

the false document made may appear in evidence in a judicial proceeding, or before a public servant or before an arbitrator, and lead to the

forming of an erroneous opinion touching any point material to the result of the proceeding. The offences of forgery and of fabricating false

evidence for the purpose of using it in a judicial proceeding are therefore distinct, and within the description of fabricating false evidence for the

purpose specified in S. 479-A Cri P.C., the offence of forgery is not included. In any event the offence penalised under S. 471 I.P.C. can never be

covered by sub-section (1) of S. 479A. Therefore for taking proceedings against a person who is found to have used a false document dishonestly

or fraudulently in any judicial proceeding, resort may only be had to S. 476 Cri.P.C.

Bearing in mind the principles laid down in the above decision of the Supreme Court, I am of opinion that the application made by the respondent

for directing the institution of a complaint under Ss. 195 and 476 Cri P.C. against the petitioner for offences under Ss. 191, 192, 193 and 465

I.P.C. is not maintainable in view of S. 479-A. In this view, it is not necessary to consider the other points raised by the petitioner such as undue

delay in preferring the application etc. But in view of the observations of the Supreme Court in Babu Lal Vs. State of Uttar Pradesh and Others,

the respondent will be entitled to file a fresh application under S. 476 Cri P.C. for directions to file a complaint against the petitioner for offences

under Ss. 463 and 464 I.P.C. without prejudice to the rights if any.

(7) The revision petition is allowed. No costs.

(8) Revision allowed.