Dev Raj Kohli vs Nirmal Kumari

This criminal revision is detected against the order of universal to have been passed by the learned Sessions Judge Rajouri dated 2821985

whereby in an appeal preferred by the petitioner Smt. Nirmal Kumari, ""hereinafter referred to as the defendant"", against the order of Munsiff

Magistrate Nowshera dated 2361984 holding that the proceedings initiated under section 476/195 Cr. P.C. read with Section 193 RFC by the

defendant against the respondent Dev Raj kohli, ""hereinafter referred to as the plaintiff"", were not maintainable and as such the petition moved

before him by the defendant was dismissed as misconceived and the proceedings initiated on that score were dropped.

The facts of the case which have given rise to this revision petition are that the plaintiff Dev Raj Kohli filed a suit for declaration and permanent

injection against the defendant Nirmal Kumari in the trial court with which an application for grant of interim injection was also moved. With that

petition in support of his application for issuance of a temporary injection, an affidavit; was attached. It was alleged by the defendant that the

affidavit filed by the plaintiff was false and he had no interest or title over the suit property. He had sworn and presented a false affidavit in a judicial

proceeding in order to cause wrongful gain to himself and wrongful loss to the defendant.

On the said application of the defendant, after the evidence was recorded in the case, the learned Magistrate undertook that as in the case the

legalities were involved, therefore there was no need to discuss the evidence in the matter and as such he disposed of the matter en the legal side of

the case holding that the proceedings initiated were not contemplated under section 476/195 Cr. P. C., but provisions of Section 497 (A) Cr. P C.

were invoked in the matter.

Heard learned counsel fvr the parties, also had a thoughtful consideration over the record on the file.

At the outset I may say that the suit preferred by the plaintiff against the defendant in the court of Munsiff Nowshera was dismissed in default

and that case was never restored to its original number for the plaintiff did not move the court to get that cider rectified by preferring an application

for its restoration in the trial court. Two and a half years thereafter this application was moved before the trial court for lodging of the criminal

prosecution against the plain tiff on account of the fact that a false affidavit was sworn by him with Article motive to gain himself"" and to causeless

to the other side and therefore it was stated that the criminal prosecution was attracted in the matter and the trial court was requested to file a

complaint against him before a competent Magistrate of jurisdiction for prosecution of the defendant.

On the perusal of the file it appears that the suit was dismissed in default and no gain or loss was caused to any of the parties and the property

remained in the form as it existed before the institution of the suit. As the trial court did not dispose of the matter on trial of the case on its merits

therefore he could not record his findings that the affidavit sworn in by the plaintiff was in any manner false and any forgery had been committed by

him in filing such an Affidavit with Iris application for issuance of a temporary injection in hi favour.

Much law has been laid down on the point, but in order to bring this matter in a short compass, am motivated 10 make mention of AIR 1967

SC 68, wherein the Full Bench of the Apex Court have in nutshell held that :

Section 479A lays down a special [procedure which applies to persons who appear as witnesses before civil revenue or criminal courts and do

one of two things: (i) intentionally give false evidence in any stage of the judicial proceeding, or (ii) intentionally fabricate false evidence for the

purpose of being used in any stage of the judicial proceedings. The first refers to an offence under S. 191/193 and the second to that under S.

192/193 of the Indian Penal Code. In respect of such offences when committed by a witness, action under section 479Article alone can be taken.

The appellants were witnesses in the inquiry in the High Court and they had fabricated false evidence. If any prosecution was to be started against

them the High Court ought to have followed the procedure under Section 479A of the code of Criminal Procedure. Not having done, so the action

under S. 476 of the code of Criminal Procedure was not open because of SubSec. (6) of Section 479A and the order under appeal cannot be

allowed to stand.

Having regard to the above authoritative pronouncement made by the Hon'ble Supreme Court, I am fully convinced that the present case is

governed by that ruling for the fact that it was for the Munsiff Magistrate Nowshera to decide whether any false evidence was given by the plaintiff

or any forgery was committed by him and in that regard during the course of proceedings he never got satisfied that such a tiling had happened,

and as such did not give a notice to the plaintiff to show cause as to why a complaint under law could not be filed against him before a competent

Magistrate Section 479A of the Code of Criminal procedure postulates that it is the court and the court atone before whom the judicial

proceedings are pending that such an action cm b; taken by the court of its own or on an application moved by any body before him. In the case

on hand the civil matter had been finally closed some two and a half years back when such an application was moved before the trial court by the

defendant and the trial court was thus justified in disposing of that application by holding that no action under Section 476/195 Cr. P.C. was

invoked in the matter and as a result of the same he dropped the proceedings. The teamed Sessions Judge on an appeal has set this finding at

naught against the provisions of law as discussed above. He has been misled to hold that an enquiry was required to be conducted by the

Magistrate knowing that the civil matter had finally been closed and in no way any perjury was committed by the plaintiff.

I, therefore, hold that the order passed by the learned Sessions Judge Rajouri being incorrect and against the provisions of law is set aside and

the order of Munsiff Magistrate Nowshera is upheld.

The revision petition is disposal of accordingly.