Rukmani Bai vs C.R. Govindaswamy Chetty

G.R. Jagadisan, J.—In disposing of the suit, O.S. No. 696 of 1958, the learned City Civil Judge at Madras directed a complaint to be filed

against the defendant in the suit and D.W. 1, a witness examined on the side of the defendant for offences under Sections 193 and 196, Indian

Penal Code. He found that D.W. 1 was responsible for bringing about a forged document, and that both defendant and D.W. 1 perjured and gave

deliberately false evidence before the Court. In his view, in the interests of justice, it is expedient that both of them should be prosecuted. This

direction was given by the learned Judge presumably under the provisions of Section 479-A, Criminal Procedure Code. The point that is now

raised before me is whether the facts and circumstances of the case warrant the filing of the complaint and whether the provisions of Section 479-

A, Criminal Procedure Code have been strictly complied with.

The suit, O.S. No. 696 of 1958, was for recovery of a sum of Rs. 5,644 from the defendant. The defendant, a lady, took on lease a theatre

known as Kothandarama Talkies in West Mambalam for exhibition of films on a monthly rental of Rs. 250. The theatre belonged to the plaintiff.

She also hired from the plaintiff the furniture and other equipments in the theatre agreeing to pay a monthly hire of Rs. 200. The lease of the theatre

is dated 1st November, 1954 and the hiring agreement is dated 1st December, 1954. The plaintiff alleged that the defendant had paid hire only up

to 1st March, 1956 and defaulted to pay hire subsequently. The suit was laid for recovery of the arrears of hire, namely, Rs. 5,000 for a period of

25 months upto the end of 31st March, 1958. The defendant resisted the suit contending that she had paid a sum of Rs. 5,000 as advance and

besides the said amount the plaintiff had also received several payments from her, and that there was nothing due by way of arrears of hire under

the hiring agreement. In support of her defence, the defendant produced a receipt Exhibit B-1, dated 9th May, 1955 alleged to have been

executed by the plaintiff in her favour. The receipt recites as if the plaintiff had received a sum of Rs. 9,000 on 9th May, 1955. The plaintiff''s case

was that he passed the receipt, Exhibit B-1 only for a sum of Rs. 300 which amount was paid to him through the defendant''s clerk, one

Kothandam and that subsequently the defendant had altered the figure Rs. 300 into Rs. 2,300 and also interlined a sentence at the end of the

receipt before the plaintiff''s signature as if the sum of Rs. 9,000 had been received. The last sentence in the receipt reads as follows : ""I received

to-day Rs. 9,000 as loan to be adjusted towards the rent."" D.W. 1 is the father-in-law of the defendant, who was admittedly managing the

business affairs of the defendant including the running of the theatre. Both the defendant and D.W. 1 went into the witness-box and deposed that a

sum of Rs. 9,000 was paid on the date of the receipt. The learned City Civil Judge found that a mere look of the receipt, Exhibit B-1 would

disclose the fact of a material alteration. Of course he disbelieved the evidence of the defendant and D.W. 1. The finding of the learned Judge is

thus recorded:

It is therefore obvious that the alleged payment of Rs. 9,000, is an afterthought, having got such a recital incorporated in the receipt Exhibit B-l. It

is a rank forgery deliberately made to escape the liability for the suit claim.

The suit was decreed in favour of the plaintiff for a sum of Rs. 5,322 with proportionate costs. Adverting to the question of the desirability of

launching prosecution against the defendant and D.W. 1 for offences u/s 193 and Section 196, Indian Penal Code, the learned Judge observed

thus:

Before parting with this case, I cannot but remark that this is a case of deliberate attempt at forgery with a view to escape the liability for the suit

claim. The fact that the defendant happens to be a lady would not minimise the gravity of the offence. However, the evidence in this case shows

that she-is only playing to the tune of her father-in-law, D.W. 1, who is the man in charge of her affairs. It is. the hand of D.W. 1 that was

responsible to bring about this forged document and he has given deliberately false evidence before Court. I feel that it is in the interest of justice

that it is expedient that D.W. 1 and the defendant should be prosecuted for the offence under Sections 193 and 196, Indian Penal Code.

Necessary complaint will be filed against both in due course.

The defendant preferred the above appeal in this Court against the Judgment and Decree of the learned City Civil Judge in the suit. The

defendant and D.W. 1 have also preferred a Civil Miscellaneous Appeal, C.M.A. No. 275 of 1959 in this; Court, challenging the direction of the

Court below for filing a complaint before the Magistrate to try the offence under Sections 193 and 196, Indian Penal Code. The parties to the suit

have entered into a compromise and the appeal was posted before me for reporting settlement. On 10th April, 1962 I passed an order dismissing

the appeal as the parties had reported settlement. But the Civil Miscellaneous Appeal had to be dealt with independently of the compromise

between the parties as the question of the necessity or desirability of a prosecution is one which relates to the public administration of justice. I

directed notice to issue to the Public Prosecutor.. The matter has again been posted before me to-day and I have heard learned Counsels for the

appellants in the Civil Miscellaneous Appeal and the learned Public Prosecutor. Of course the plaintiff in the suit is no longer interested in pressing

for an order for prosecution against the defendant or her witness.

I entirely agree with the learned City Civil Judge that the case is a fit one for filing a complaint to prosecute the defendant and her witness, D.W.

1 for offences under Sections 193 and 196, Indian Penal Code. It is fairly obvious that the receipt Exhibit B-1 has been materially altered and

fabricated by the defendant and her partisans and that the evidence of the defendant and D.W. 1 is perjured testimony. If the order directing the

filing of the complaint is in accordance with Section 479-A,, Criminal Procedure Code or is not in any way irregular or illegal I would have-

concurred with the view of the Court below and allowed the prosecution before the Magistrate to take its normal course.

It is however contended by Mr. T.M. Kasturi, learned Counsel for the appellant that the provisions of the Criminal Procedure Code have not

been duly or strictly complied with by the Court below. Sections 476 to 479-A in Chapter XXXV of the Criminal Procedure Code relate to

offences affecting administration of justice. Section 195, Criminal Procedure Code, provides that no Court shall take cognisance of an offence

punishable under Sections 193 or 196 of the Indian Penal Code when such offence is alleged to have been committed in or in relation to any

proceeding in any Court, except on the complaint in writing of such Court or of some other-Court to which such Court is subordinate. When any

Civil, Revenue or Criminal; Court is of the opinion that it is expedient in the interests of justice that an enquiry should be made into any offence

referred to in Section 195 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 and shall forward the same to a Magistrate of the First Class having jurisdiction. This is Section 476. The relevant section, the

construction of which comes in for consideration in this case, is Section 479-A. Omitting portions which need not be adverted to in this case the

section reads as follows:

(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 such 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 evidcence 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.

* * * * *

(4) Where in any case a complaint has been made under Sub-section (1) and an appeal has been preferred against the decision arrived at in the

judicial proceeding out of which the matter has arisen, the hearing of the case before the Magistrate to whom the complaint was forwarded or to

whom the case may have been transferred shall be adjourned until such appeal is decided; and the appellate Court, after giving the person against

whom the complaint has been made an opportunity of being heard, may, if it so thinks fit, make an order directing the withdrawal of the

complaint....

(5) In any case, where an appeal has been preferred from any decision of a Civil, Revenue or Criminal Court but no complaint has been made

under Sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said Sub-section may be exercised by the

appellate Court, and where the appellate Court makes such complaint the provisions of Sub-section (1) shall apply accordingly, but no such order

shall be made, without giving the person affected thereby an opportunity of being heard.

(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.

Section 479-A, Criminal Procedure Code governed a case of a person appearing before the Court as a witness and intentionally giving false

evidence before it in the course of any judicial proceeding, and a case where such person has intentionally fabricated false evidence for the purpose

of being used in any such proceeding. In express terms this section bars the operation of sections 476 to 479 in the matter of prosecution of the

person giving or fabricating false evidence. The requirements of Section 479-A have been clearly laid down in that section. The Court shall at the

time of the delivery of the judgment or final order record a finding to the effect that false evidence has been intentionally given or false evidence has

been intentionally fabricated and that it is expedient in the interests of justice that the delinquent should be prosecuted for the appropriate offences

under the Indian Penal Code. Should the person against whom the complaint is directed to be laid, whether he is a party to the proceeding or is a

mere witness, be served with "" show cause notice"" as to why he should not be prosecuted for the particular offence with which he is charged and

be given an opportunity to show that there are no grounds for the matter being taken to the Criminal Court, and does Section 479-A make it

incumbent upon the Court to issue such notice or to afford such opportunity is the real question that arises in this case. The words used in Section

479-A are:

The Court...may, if it so thinks fit, after giving the witness an opportunity of being heard make a complaint thereof in writing.

A party who gives evidence also becomes a witness. Of course there may be a witness who is not a party to the suit. While the party is very often

represented by counsel a witness has no locus standi to engage counsel and participate in the trial of the action. I must confess that the language of

the provision is somewhat perplexing. It is not quite clear whether the words ""after giving the witness an opportunity of being heard"" have been

inserted to operate as a pre-requisite or a condition for the exercise of jurisdiction to file the complaint. It is possible to argue that the question of

issuing notice or not is purely a matter of discretion for the Court. The words ""may if it so thinks fit"" occurring before the words ""after giving a

witness an opportunity of being heard "" rather indicate that the issuance of the notice is not mandatory. A comparison of the language of Sub-

section (4) and Sub-section (5) may not be out of place. Sub-section (4) governs a case where a complaint has been made under Sub-section (1)

and an appeal has been preferred against the decision arrived at in the judicial proceeding. In such a case if the appellate Court directs the

withdrawal of the complaint it should give the person against whom a complaint has been made an opportunity of being heard. The language of

Sub-section (4) does not admit of any doubt or difficulty on the question of notice because the words are "" the appellate Court after giving the

person against whom a complaint has been made an opportunity of being heard. "" Indeed I am unable to understand why the Legislature has

insisted upon issue of notice to the person complained against when after all the appellate Court was only going to pass an order in his favour by

withdrawing the complaint. But anyhow the language is unmistakable and notice in such cases is essential. But Sub-section (5) is even more clear

than Sub-section (4). That governs a case where no complaint had been made under Sub-section (1) and the appellate Court deals with the matter

for the first time in regard to the laying of the complaint. The specific provision is:

Where the appellate Court makes such complaint the provisions of Sub-section (1) shall apply accordingly and no such order shall be made

without giving the person affected thereby an opportunity of being heard.

It is possible to argue from this provision that notice to the person complained against is not contemplated or provided for under Sub-section (1) as

otherwise there was no necessity for the Legislature to specifically state in Sub-section (5) that no order shall be made without giving the person

affected an opportunity of being heard. If Sub-section (1) in its own terms mandatorily provides for the issue of notice to the person affected by the

complaint, it would have been enough for the Legislature to say that the appellate Court may make the complaint in accordance with the provisions

of Sub-section (1). This is perhaps an indication that in the opinion of the Legislature there is no necessity to issue notice to the person affected, if

the complaint is directed to be filed by the very Court which conducted the proceedings and in the course of which it was found that a particular

person was guilty of giving false evidence or fabricating documents, but that, if the complaint is to be filed at the instance of some other Court even

if it be the appellate Court, notice is necessary.

Looking to the provisions of Section 476, it is found that the Court may, after such preliminary enquiry, if any, as it thinks necessary, record a

finding to the effect that there is proof of prima facie guilt and that it is expedient in the interest of justice that the delinquent should be prosecuted.

The question as to how far notice is necessary in an application u/s 476 has been the subject of conflicting judicial pronouncements.

In H.C. Ganti Vs. F.L. Harcourt, a single Judge of the Calcutta High Court, Buckland, J., has taken the view that it is not necessary that a notice

should be given to the person against whom the order is sought on an application u/s 476. I must say that the learned Judge has expressed himself

very strongly against giving notice. At page 437 the learned Judge observed:

There is the further question whether the person, against whom the application is made, should be given an opportunity of being heard upon the

preliminary enquiry; but this in may judgment, is generally to be deprecated. It might result, in some measure, in converting the enquiry into an

enquiry not dissimilar from that which it would be the duty of a Magistrate to make and it might involve the person against whom the order is

sought in himself giving evidence on oath by affidavit or otherwise which would be contrary to the spirit of the criminal law in this country.

In M. Liaqat Husain Vs. Vinay Prakash and Another, a Division Bench of the Allahabad High Court expressed itself thus:

We therefore think that the applicants never had proper notice and were certainly taken unaware. It has been held in a number of cases that

although the plain terms of Section 476, Criminal Procedure Code do not insist upon notice nevertheless it is highly desirable that such notice

should be given.

The same view has been held by the Bombay High Court in Bai Kasturi Bat v. Vanmalidas ILR (1925) 49 Bom. 710.

My attention has been drawn to the decision of the High Court of Andhra Pradesh in Muniamma, In re (1958) 2 An. W.R. 509 : (1958)

M.L.J.859. The learned Public Prosecutor has relied upon the observation of Basi Reddy, J. at page 860:

Section 479-A, Criminal Procedure Code, contemplates, three steps : (1) the recording of a finding in terms of Sub-section (1) at the time of the

delivery of the judgment or final order disposing of the judicial proceeding in the course of which a witness has given false evidence; (2) the issue of

notice to the witness and giving him an opportunity of being heard; and (3) the making of a complaint in writing signed by the presiding officer of

the Court setting forth the evidence which, in the opinion of the Court is false, and forwarding the case to a Magistrate of the First Class having

jurisdiction to try the case. The section enjoins that the first step should be taken at the time of the delivery of the judgment or final order. It does

not further require that the formal complaint itself should be filed on that date.

As I understand this judgment the learned Judge seems to lay down that notice is necessary to the witness so as to afford him an opportunity of

being heard before actually the complaint is filed. Of course the question for consideration in that case was not whether the proceedings were bad

because of absence of notice. This view of the learned Judge of the Andhra Pradesh High Court was considered by this Court in C.P. Kasi Thevar

Vs. Chinniah Konar, That is a decision of Somasundaram, J. The Headnote of that decision reads:

The conditions necessary for the application of Section 479-A are that the Court before it delivers its judgment or at any rate at the time of

delivering the judgment must form an opinion that particular witness, or witnesses, is or are giving false evidence. A Court can come to a

conclusion that a witness is false only when there are materials placed before it to justify that opinion. Mere appearance of a person as a witness

will not justify the Court to take action u/s 479-A. Where it is only after the judgment was delivered that the necessary documents which would

establish the falsity of the evidence of the witness were obtained and brought to the notice of the Court, Section 479-A will not apply and Sub-

section (5) of that section will not operate as a bar for proceeding u/s 476 to 479.

That again was a case where the question of the necessity for the issue of a notice for the laying of a valid complaint did not arise for consideration.

The decision of the Andhra Pradesh High Court was distinguished by Somasundaram, J., on the ground that it was a case in which material for the

Court to come to the conclusion on the question of the guilt of the witness was available even at the time of the pronouncement of the judgment in

the main case.

Mr. T.M. Kasturi, learned Counsel for the appellants, relied upon the decision of the Supreme Court in Dr. Pal Chaudhry v. State of Assam

(1960) S.L.J. 1079 : (1960) 2 An W.R. 69 : 1960 M.L.J. 691 : (1960) 2 M.L.J. 69. In that case the High Court of Assam set aside an order of

acquittal passed by the Sessions Judge in a criminal case and convicted two persons of the offence of rape. A retired Civil. Surgeon was examined

as D.W. 2 on behalf of the accused. He was asked to show cause why he should not be prosecuted u/s 193, Indian Penal Code, for giving false

evidence in the criminal case. The learned Judge of the Assam High. Court came to the conclusion that the case was a fit one for a complaint being

filed u/s 193, Indian Penal Code and directed the Registrar of the High Court to lodge the complaint in the Court of the Deputy Commissioner,

Lakshmipur. The aggrieved person filed the appeal before the Supreme Court, challenging the correctness of the order directing the filing of the

complaint. His contention was that the terms of Section 479-A were not complied with. The Supreme Court held that the case was governed by

Sub-section (5) of Section 479-A and that therefore both Sub-section (1) and Sub-section (5) of Section 479-A have to be complied with. At

page 71, Sarkar, J., observed thus:

The combined effect of these Sub-sections is to require the Court intending to make a complaint to record a finding that in its opinion a person

appearing as a witness has intentionally given false evidence and that for the eradication of the evils of perjury and in the interests of justice, it is

expedient that such witness should be prosecuted for the offence and to give the witness proposed to be proceeded against, an opportunity of

being heard as to whether a complaint should be made or not.

It seems to us that none of these conditions of the section was observed by the High Court when it directed the complaint to be made.

As I have already stated there is no difficulty in construing the provisions of Section 479-A (5) in view of the mandatory provision contained

therein that ''no order under Sub-section (1) shall be made without giving the person affected an opportunity of being heard.'' I do not think that the

decision of the Supreme Court has any application to the facts of the present case.

In my opinion on a strict construction of Section 479-A (1) notice to the person affected, namely, the witness charged with having given false

evidence or fabricated false document is not necessary. But all the same notice should be issued as there is no reason why the well-known and well

accepted principle of audi alteram partem should not apply. That ""No man shall be condemned behind his back "", is a rule of natural justice which

has been repeatedly laid down in the matter of observance of judicial procedure both in established Courts of the land and even in tribunals. The

English rules of ''natural justice'' resemble the concept of ''procedural due process'' in the United States. In spite of the trenchant observation of

Lord Shaw in Local Government Board v. Alridge L.R. (1915) A.C. 120 that the rule is a high sounding expression though harmless, that in so far

as it attempts to reflect the old jus naturale, it is a confused and unwarranted transfer into the ethical sphere of a term employed for other

distinction, and that it is vacuous in so far as it is resorted to for other purposes, it has stood the test of time and has survived the occasional judicial

gibes in regard to its contents and scope. The duty to act judicially would be wholly illusory if the authority discharging the duty can at his will and

pleasure dispense with notice to the person affected and proceed ex parte. However debatable may be the question whether the non-observance

of the rule would vitiate the proceedings of bodies whose functions are not strictly judicial, Courts and judicial tribunals must adhere to it as they

cannot shed themselves of their essential features. It seems to me that it would be a travesty of law and justice if a Court can render decisions

against persons without notice to them on the ground that there is no provision of law requiring such notice to be given. Prosecuting a person for an

offence under the Indian Penal Code is certainly a grave matter and however much it may be called for in the interests of public administration of

justice the person who is to face the prosecution should in all fairness be given an opportunity to vindicate himself if he can even prior to the

commencement of the prosecution in cases governed by Section 476 and Section 479-A, Criminal Procedure Code. The very object of the

provisions of Section 195, Criminal Procedure Code, making certain offences not cognisable without the Court itself filing the complaint'' and the

scheme of the provisions of sections 476 and 479-A, Criminal Procedure Code show that in offences affecting the administration of justice

prosecution should not be launched as a matter of routine or in a mechanical manner. It is true that in the present case there is prima facie evidence

to show that the defendant and her witness, D.W. 1 have sought to support the defence by giving false evidence and by fabricating false

documents; and if the complaint had been laid after due notice to the persons accused and after hearing them, I would have been very reluctant to

quash it. It is common ground that no notice was issued to the defendant and D.W. 1 to show cause why the complaint should not be laid. In my

opinion, the filing of the complaint in these circumstances before the Magistrate is illegal and improper.

I therefore direct the withdrawal of the complaint u/s 479-A. There will be an order accordingly. The Civil Miscellaneous Appeal is allowed.