Balaiyanandha Nadar vs Sri Valagurusami Koil

Ismail, J.—These are two Civil Revision Petitions preferred against the order of the learned Subordinate Judge. Tuticorin, dated 14th November, 1975, allowing C.M.A.122 and 123 of 1974, preferred before him against the order in I.A. 117 and 79 of 1974 respectively. O.S. No. 197 of 1972 was a suit pending on the file of the District Munsif Court, Srivaikuntam. When the suit was pending and before it was disposed of, the sixth defendant filed I A117 of 1974 purporting to be under S. 479 A Crl. P.C. 1898, praying for recording a finding in the judgment that the 7th defendant in the suit had used forged documents knowing them to be forged and that it was expedient in the interests of justice and for the eradication of the evils of perjury and fabrication of false evidence that he should be prosecuted by laying a complaint before a competent court of law for the offences under Ss. 463 and 471 I.P.C., The same sixth defendant filed I.A.79 of 1974 against the same 7th defendant for a similar relief mentioning the offence as one under S. 471,1.P.C. Both these applications were dismissed by the learned District Munsif by order dated 23rd April 1974. By the time the applications were dismissed, the Criminal Procedure Code, 1973, had come into force and thereafter, the applicant (6th defendant) filed C.M.A. 122 and 123 of 1974, on the file of the Sub Court, Tuticorin which court was the appellate court with reference to the Court of the District Munsif in question. The learned Subordinate Judge, by hit impugned order dated 14th November 1975, allowed the two C.M.As. and stated as follows in the conclusion of his judgment:

In the result, appeal A.S. 113 of 1974 (the appeal preferred against the decree in O.S. 197 of 1972) fails and the same is dismissed with costs of contesting defendants 1 to 6. The cross objection filed by the 7th defendant is also dismissed with costs. C.M.A.122 of 1974 and 124 of 1974, are allowed and the order of the lower court in 1.A.79 of 974 and I.A. 117 of 1974 are set aside and complaint will be forwarded to the competent Magistrate of the first Class having jurisdiction for the prosecution of the 7th defendant for the offence Wider S. 471 I.P.C.

It is this order that is sought to be revised in these Civil Revision Petitions.

For the purposes of understanding the point raised, it is necessary to refer to certain statutory provisions. S. 471, I.P.C. which was the Section under which the two applications filed before the learned District Munsif, wanted a prosecution to be launched reads as follows--

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.

Certain provisions of the Criminal Procedure Code, 1898, have also to be read now. S. 1898 (l) (c) Crl.P.C 195 states.

195 (1) No court shall take cognizance....(c) of any offence described in S. 463 or punished under S. 471. S. 475 or S. 476 of the same Code, 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 or of some other court to which such court is subordinate

The relevancy of this Section is that S. 471, I.P.C. falls within the scope of this provision.

Two other procedural sections which to be referred to are S. 476(1) and S. 479-A(1) of Crl.P.C.,1898--

476 (1). 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 inquiry should be made into any offence referred to in S 195, Sub-sec(l). 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 presidingofficer of the court and shall forward the same to a Magistrate of the first class having jurisdiction and may take sufficient security for the appearance of the accused before such Magistrate pr if the alleged offence is non-bailable may, if it thinks necessary so to do send the accused in custody to such Magistrate and may bind over any person to appear and give evidence before such Magistrate.

S. 479-A(1) Notwithstanding anything contained in Ss. 476 to 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 state 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 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 starting its reasons therefor and 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 and may bind over any person to appear and give evidence before such Magistrate.

On a reading of these sections, certain things are clear. Firstly, Sec. 479-A, Crl. P.C, 1898 applies only in respect of two matters, viz, a witness intentionally giving false evidence or intentionally fabricating false evidence, while S. 476 Crl.P.C, 1898 refers to the various offences mentioned in Sec. 195, sub-sec (1), clause (b) or clause (c) Crl. P, C. 1898 The second point of difference is that Sec. 479 Crl. P.C. 1898, contemplates the court recording a finding and making a complaint only at the time of the delivery of the judgment or final order disposing of the proceeding pending before it. On the other hand, Sec. 476 (1) Crl.P.C. 1898 does not impose any such limitation. Thirdly, Sec.479-A contemplates the court taking action suo motu while Sec.476(i) contemplates the court taking action suo motu or on an application made to it. Having regard to these points of difference and more so the number of offences covered by the respective sections, it is clear that the two sections cannot be confused with each other and one is independent of the other. As far as the present case is concerned, having regard to the very offence with reference to which the applicant before the learned District Munsif wanted the other side to be charged, viz, Sec.461 I.P.C. the section which will apply to the case is only Sec.476 Crl.P.C. 1898 and not Sec. 479-A Crl.P.C. However, in the present case, the two applications, viz., IA. No. 117 and 79 of 1974, made by the 6th defendant in the suit, were under Sec. 479-A Crl. P.C. 1898 only and the said applications wanted complaints to be made for prosecution under S. 471 I.P.C. in one case and S. 471 and the cognate provisions of the Indian Penal Code, in the other. On the face of it, the said applications were incompetent because S. 471 IP. is covered by S. 471(1) Crl.P.C. 1898 and not by Sec. 479-A of that, Code. There fore, when the learned District Munsif dismissed those applications, he was perfectly right in doing so. Hence, when the learned Subordinate Judge allowed the Civil Miscellaneous Appeals filed against the orders of the learned District Munsif, he was in error and was acting in excess of his jurisdiction in allowing the applications and directing a complaint to be made for prosecution under Sec. 471 I.P.C. to which Sec. 479-A Crl. P.C., 1898, can have no application whatever.

As soon as this position was realised Mr. K. Parasaran, the learned counsel for the respondents, contended that even though the learned Subordinate Judge may be wrong in allowing the Civil Miscellaneous Appeals and setting aside the order of the learned District Munsif, yet in so far at he has referred to Sec. 340 and Sec. 341, Crl.P.C. 1973., which had come into force even by the time the learned District Munsif dismissed the application, the learned Subordinate Judge must be deemed to have exercised his suo motu powers under Sec. 340 read with S. 341 of the new Criminal Procedure Code, corresponding to St. 475 and 476-B, Crl.P.C. The handle for advancing this argument was sought to be found in the following statement contained in paragraph 50 of the judgment of the learned Subordinate Judge. Towards the end of that paragraph, after referring to the provisions contained in Ss. 476 and 479-A of the old Crl. P. C. the learned Subordinate Judge pointed out--

Therefore the power conferred on the trial court by S. 476(i) may be exercised by this Court alto by virtue of S. 476-A (a mistake for S. 476-B). The Criminal Procedure Code, 1898 hat now been repealed by the Criminal Procedure Code of 1973. Ss. 340 and 341 of the new Code contained provisions similar to S. 376 and 376-A(c) of the old Code Therefore, there is no impediment in law for this court to take action under Ss. 340 and 341 of the new Code corresponding to S. 376 and 376-A (sic) of the old Code.

It is on the basis of this observation, the learned counsel for the respondent contended that the learned Subordinate Judge exercised his suo motu powers as the appellate Court in ordering preferring the complaint. I am unable to accept this contention for the simple reason that the learned Subordinate Judge has expressly allowed the Civil Miscellaneous Appeals and set aside the orders passed by the learned District Munsif in LA Nos. 79 and 117 of 1974. If the learned Subordinate Judge was exercising his suo motu powers, he should have dismissed the Civil Miscellaneous Appeals and must have specifically stated that he was acting pursuant to Ss. 340 and 341 of the new Criminal Procedure Code in exercise of his suo motu powers of making the complaint. Hence, so long as the learned Subordinate Judge has not done so, it is not possible to agree with the learned counsel for the respondent that such an inference should be drawn from the extracted observation of the learned Subordinate Judge in view of his express operative portion of the order that the Civil Miscellaneous Appeals were, allowed and the order of the learned District Munsif was set aside.

In these circumstances, I have no option but to allow the Civil Revision Petitions and set aside the order of the learned Subordinate Judge. Accordingly, the Civil Revision Petitions are ordered and the order of the learned Subordinate Judge is set aside and the order of the learned District Munsif dismissing I.A. Nos. 117 and 79 of 1974 will standrestored. There will be no order as to costs.