Bhusan Lal Taploo vs Radha Krishen Taploo

Jaswant Singh, J.—Shri Jia Lal Taploo, the father of Shri Bhusan Lal Taploo (Appellant herein), sold a house and the land underneath and

appurtenant thereto situate in Chandapora, Kralkhud, Srinagar, in favour of Sarvshri Shridhar Joo and Vidh Lal for a consideration of Rs. 2000/-

vide sale deed dated Sawan 23, 2001 (samvat).

A title suit, being suit No. 72 of 1958, for declaration to the effect that the aforesaid alienation of the entire house which was the joint property

of the appellant and his father Shri Tia Lal Taploo, was void and ineffectual as also for possession of one-half of the house and for permanent

injunction restraining the aforesaid vendees from changing the condition of the house was brought by the appellant against the vendees and his

father in the court of the Sub-Judge (ADM), Srinagar which was dismissed on November 19, 1962, Aggrieved by this judgment and decree the

appellant preferred an appeal in forma pauperis in the court of the District Judge, Srinagar. In connection with the proceedings for permission to file

the appeal in forma pauperis the appellant made two contradictory statements on oath as his own witness one on August 23, 1965, and the other

on February 27, 1967, In his first statement the appellant deposed that he had no movable or immovable property, that he had no means of

livelihood and that he had not got the capacity to pay the court fee, In his later deposition the appellant stated that he was employed in the Control

Department for the last one year and a half i. e. since August 1965 in the grade of Rs. 65-5-EB-120 and was drawing Rs. 100/- as his salary and

allowance from the said department and that even in June and July 1965 when he was under training he drew some allowance. The application for

permission to appeal in forma pauperis was eventually rejected by the District and Sessions Judge, Srinagar, vide his order dated August 3, 1968,

whereupon the appellant paid up the requisite court fees. Thereafter the appeal was heard on merits and allowed by the District Judge by his

judgment dated April 18, 1969, Meanwhile an application u/s 195 Criminal P. C. was filed by the respondent in the court of the District Judge,

Srinagar, on August 13, 1968, praying that as the appellant intentionally made a false statement as his own witness on August 23, 1965, in

connection with the aforesaid application for permission to appeal in forma pauperis proceedings for perjury u/s 193 R. P. C. be initiated against

tie appellant, After allowing an opportunity to the appellant to show cause why the application made by the respondent be not allowed and

considering the material before him the learned District Judge came to the conclusion that the appellant had intentionally made a falser statement on

August 23, 1965, and that it was expedient in the interests of justice that he should be prosecuted under the aforesaid section of the Penal Code.

Accordingly he passed an order on September 16, 1972, for launching a complaint against the appellant u/s 193 of the Penal Code in the court of

the Chief Judicial Magistrate, Srinagar, which was complied with. It is against this order that the present appeal has been preferred by the

appellant.

2A. Shri J. L. Choudhry appearing on behalf of the respondent has raised a preliminary objection to the maintainability of the appeal and has urged

that the impugned order is not appealable. In support of his objection he has invited my attention to Sub-section (3) of Section 479-A of the Code

of Criminal Procedure. This objection, in my opinion, is well founded and must prevail in view of the said provision of law which clearly bars an

appeal.

Now although an appeal against the aforesaid order of the District Judge is not competent, there is nothing in the Code to restrict the power of

this Court to revise the impugned order. Accordingly I would treat the appeal as a revision and proceed to dispose of the matter. Let me now

advert to the two contentious raised on behalf of Shri Bhushan Lal Taploo by Shri K. N. Raina, that (1) it was Section 479-A of the Code of

Criminal Procedure which applied to the present case and (2) that the impugned order could not be passed by the learned District Judge, on

September 16, 1972.

For a proper consideration of these contentions, it is necessary to refer to Section 479-A which in so far as is relevant for the purpose of this

revision runs thus:

Procedure in certain cases of false evidence. (1) Notwithstanding anything contained in Sections 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 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 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 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!

(3) No appeal shall lie from any finding recorded and complaint made under Sub-section (1).

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

respect of such a person proceedings may be taken under this section.

As observed in Shabir Hussain Bholu v. State of Maharashtra AIR 1963 SC 818 : (1963) Cri LJ 803 and Baban Singh and Another Vs. Jagdish

Singh and Others, the inevitable effect of the non-obstante clause appearing at the commencement of the above quoted Section and the provisions

of Sub-section (6) thereof is to exclude the provisions of Sections 476 to 479 inclusive in respect of the two categories of offences which are

specifically dealt with in Sub-section (1) that is to say the provisions of Sub-section (1) of Section 479-A alone must be resorted to by the court

for the purposes of making a complaint against a witness for intentionally giving false evidence or intentionally fabricating false evidence at any stage

of the judicial proceedings before it.

Let us now see as to whether the petitioner who was a party to the proceedings relating to pauperism fell within the purview of the term

witness"" as used in Section 479-A of the Code.

In Narajappa Vs. Chikkaramiah, , it was held that the word ""witness"" in Section 479-A includes any person who has given a statement on oath

and when a party does so, he becomes a witness for on the record he is classed as a witness and numbered as a witness.

Similar observations were made by a Division Bench of the Allahabad High Court in Badullah Vs. State, .

In view of the above noted decisions of the Mysore and Allahabad High Courts, it cannot be doubted that when a party to Judicial proceedings

appears as his own witness at any stage of the proceedings and intentionally gives false evidence it is Section 479-A, which is attracted. So

viewed, the appellant who appeared as his own witness squarely came within the ambit of the word ""witness"" as used in Section 479-A (1).

The only point that now remains to be decided is if the impugned order could be passed by the learned District Judge on September 16, 1972.

A close study of Section 479-A (1) will make it clear that the court seized of the judicial proceedings can pass an order for the prosecution of a

witness for the offence of perjury at the time of the delivery of the judgment or final order disposing of the proceedings and not after that.

In Shabir Hussein Bholu Vs. State of Maharashtra, it was held that it could not be urged that where a court wilfully refuses to record at the

time of delivering the judgment or final order disposing of the proceedings before it that for the eradication of the evil of perjury and in the interests

of justice, it was expedient that the witness should be prosecuted for the offence which appears to have been committed by him, it could later

resort to the provisions of Section 476.

In the instant case although the appellant appeared as his own witness in connection with his application for permission to appeal in forma

pauperis, it cannot be overlooked that the impugned order was not passed on August 3, 1968 when the said application was disposed of or on

April 18, 1968, when the judgment in the aforesaid appeal against the judgment of the Sub-Judge was delivered but it was passed on September

16, 1972, In view of the clear language of Section 479-A and the decision of the Supreme Court in Shabir Hussein Bholu Vs. State of

Maharashtra, I have no hesitation in holding that the order in question for the prosecution of the petitioner u/s 193 R. P. C. having been passed

long after the proceedings in connection with pauperism came to an end and even the aforesaid appeal was decided is clearly without jurisdiction

and cannot be allowed to stand.

For the foregoing reasons, I allow the revision, set aside the impugned order and quash the proceedings u/s 193 R. P. C. pending against the

appellant in the Court of the Chief Judicial Magistrate, Srinagar.