Sant Bilas Singh vs The State of Bihar and Surendra Singh

M.P. Singh, J.—This is an appeal u/s 476B, Criminal Procedure Code filed by Sant Bilas Singh, a retired State Bank employee for directing withdrawal of the complaint which the second Additional Subordinate Judge, Arrah made on 3 May 1972 before the Sub-divisional Magistrate, Sadar, Arrah against him in respect of offences under Sections 193 and 199 of the Indian Penal Code for swearing a false affidavit (Ext. 5) on 8 July 1969 in relation to a service report (Ext. 4) of a peon (since dead) in Execution case No. 2 of 1969. Cognizance was taken on 8 May 1972. The short facts are these. The appellant and his sons filed title Suit No. 49 of 1962 for partition. The suit was decreed. The appellant levied execution, the same being Execution case No. 2 of 1969. In that case the notices under Order 21 Rule 22 of the CPC were served on 16 June 1969 on the defendants including Baleshwar Singh (D. 9), Mayanand Singh (D. 8) and Nand Kumar Singh (D. 6). That service of notice was proved by the appellant Sant Bilas Singh by swearing an affidavit before the sheristedar of the Civil Court, Arrah on 25 July 1969. Defendant No. 4 Surendra Singh filed a petition u/s 476 of the Code of Criminal Procedure before the executing court namely Second Additional Subordinate Judge, Arrah complaining that the appellant Sant Bilas Singh had brought the service peon in collusion and got a false service report made on three judgment-debtors namely, Baleshwar Singh, Mayanand Singh and Nand Kumar Singh (D. 9, 8 and 6 respectively) saying that on 16 June 1969 the date of service, deft. Baleshwar Singh was in service as a constable in R.P.F. at Howrah and was not at home and that Mayanand Singh, Nand Kumar Singh were at their farm village at Muaza Dhurgaon in the district of Saharsa and they also were not at their village home and so the appellant should be prosecuted under Sections 193 and 199 of the Indian Penal Code for swearing a false affidavit supporting the false report of the serving peon. An inquiry u/s 476 of the Code of Criminal Procedure was held and both sides led evidence for and against. The Second Additional Subordinate Judge by his order dated 27 November 1971 held that prima facie the affidavit was false and hence a complaint be made against the appellant for offences u/s 193 and 199 of the Indian Penal Code, it seems that nothing was said about the serving peon because he was dead. In pursuance of this order a complaint was made by him on 3 May 1972 as aforesaid.

Mr. Kailash Roy appearing for the appellant has argued that on the facts of this case it should be held that chances or prospects of conviction are very remote and that it will not be expedient in the interests of justice to maintain the prosecution of the appellant.

Before discussing the point raised in this case it is necessary to discuss the principles laid down as guide lines for the courts in making a complaint u/s 476 of the Code of Criminal Procedure. In (1) In Re: Ram Prasad Malla, a Division Bench of the Calcutta High Court observed at page 20 as follows:--

As prosecutions ending in failure are to be deprecated as being calculated to do harm rather than good, they ought not to be undertaken without considerable circumspection and care.

In the same volume in another case, (2) Jadu Nandan Singh Vs. Emperor, another Division Bench of that court consisting of Sir Asutosh Mookerjee and Chatterjee; JJ. laid down the rule in the following words:

The principle which should guide court in taking action u/s 195 or 476 is now well settled. No sanction should be granted unless there is a reasonable probability of conviction. It would be an abuse of the powers vested in a Court of Justice if sanction were given or upheld on the principle that, though the conviction of the party complained against is a mere possibility, it is desirable that the matter should be thrashed out, so that it may be decided whether or not an offence has been committed.

Their Lordships relied upon the following cases namely, (3) Ishri Prasad Vs. Sham Lal, (4) Kali Charan Lal Vs. Basudeo Narain Singh and (5) The Queen Vs. Baijoo Lall and Others, in support of their view. Both the two Calcutta cases were before the amendment in the year 1923 when there was no provision for appeal as later obtained u/s 476B, Criminal Procedure Code. In (6) Mandar Vs. Emperor, Foster, J. followed the principles laid down in the two Calcutta cases and said that it was no use passing an order u/s 476, Criminal Procedure Code, unless, there was a reasonable probability of conviction. In (7) Nawalal Jha and Another Vs. Emperor, Rowland, J., directed the complaint to be withdrawn as the prospects of a conviction in that case were very much remote because in those circumstances it was not expedient in the interest of justice to proceed with the prosecution further. The same appears to be the view of the Allahabad High Court as expressed in (8) Narain Singh V. Emperor ( 49 Cr. L.J. 361) where the observation of Sir Ashutosh Mookerjee made in the case reported in Jadu Nandan Singh Vs. Emperor, , at page 258 were quoted with approval. After reviewing these decisions it was held by this Court in (9) Deosaran Prasad V. State ( 1955 B.L.J.R. 635) by Banerji, J.

It is, there fore, clear from these decisions, that prosecutions ending in failures are to be deprecated as they tend to cause more harm than good and that no prosecution should be directed against any one unless there is reasonable prospect of conviction.

In (10) Shabir Hussein Bholu Vs. State of Maharashtra, it was said

For, even u/s 476, the court must before making a complaint, be satisfied that it was expedient in the interest of justice to make art enquiry into the offence committed by the witness.

In (11) Rangaswami Reddiar Vs. Gunnammal, it was observed

That is after forming an opinion as to the existence of prima facie case, the court will have to consider further, whether it is expedient to launch prosecution in the case in the interests of justice. This, in my view will be on general grounds without reference to the particular complaint or particular offender. The bare fact that it is noticed later that false evidence has been given in a proceeding, in my view, will not be sufficient for concluding expediency of prosecution. No doubt, perjury, falsehood and frauds when detected in the course of judicial proceedings must be punished and punished severely. The courts will not lightly look on litigants obtaining benefit by foul means or witnesses who perjure themselves to help their party. But before launching prosecution, one has to bear in mind that hundreds of actions are tried yearly in which the court finds the evidence irreconcilably conflicting and wherein one or the other side must have will fully and deliberately perjured. The Courts do often pronounce on the falsity of evidence when coming to findings. If prosecution is to be launched in every case, and particularly at the instance of the opposite party, then there will be no limit to litigation between the parties. The danger of parties vindictively proceeding against their opponents by initiating proceedings u/s 476, Cr.P.C. has to be kept in mind. This aspect of the matter must make the court pause and consider the expediency of prosecution in a particular case with reference to its facts and not launch prosecution at the instance of parties in every case where perjury is discovered.

In (12) Padarath Singh V. Ratan Singh (5 P.L.J. 23 at 30) Das, J. observed:

''''No person can be convicted u/s 193 except on proof that it is impossible that the statement of the party accused made on oath must be true.

In that case his Lordship also took note of the fact that there was great delay in applying for sanction and on that account the party accused had been prejudiced Inasmuch as the serving peon by that time was dead. In (13) Chajoo Ram Vs. Radhey Shyam and Another, the following observation occurs:

The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand. But to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material, defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge..... Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution. And then by reason of the pendency of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially.

In the same volume in another case (14) Patel Laljibhai Somabhai Vs. The State of Gujarat, their Lordship said:

As a general rule, the courts consider it expedient in the interest of justice to start prosecution as contemplated by Section 476 only if there is a reasonable foundation for the charge and there is a reasonable likelihood of conviction. The requirement of a finding as to the expediency is understandable in case of an offence alleged to have been committed either in or in relation to a proceeding in that court in case of offences specified in Clause (b) because of the close nexus between the offence and the proceeding-----The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecution on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents.

These offences have been selected for the court''s control because of their direct Impact on the judicial process. It is the judicial process, in other words, the administration of public justice; which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognised by Section 190, Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that Court mo that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party.

Another Supreme Court case of (15) Mohammad Ibrahim Vs. B. Rama Rao, their Lordships have observed:

Under Section 479A, Cr.P.C. not only is it necessary that the court must form the opinion that the witness had intentionally given false evidence, but it is further necessary that the court must come to the conclusion that for the eradication of the evils of perjury and in the interest of justice it is expedient that the witness should be prosecuted for the offence which appears to have been committed by him.

In my opinion there is no difference in principle underlying behind Section 479A and 476 in the matter of taking action for the offence of perjury. From the above mentioned decisions it is quite clear that not only is it necessary that the Court finds existence of prima facie case in favour of the prosecution but it is further necessary that the Court must corns to the conclusion that it is expedient in the interest of justice to prosecute the accused. Keeping these principles in mind I have to see Whether on the facts of the instant case there is any reasonable chance of conviction and whether it will be expedient in the interest of justice to allow the prosecution to proceed further to punish the appellant. On this aspect of the matter there is many a circumstance showing that it is not expedient in the interest of justice that the appellant should be prosecuted for having sworn the alleged false affidavit (Ext. 5). None the three defendants (D. 9 Baleshwar Singh, D. 8 Maya Nand Singh and D. 6 Nand Kumar Singh) upon whom notices were said to have been served appeared in court during the inquiry u/s 476. Surendra Singh, defendant No. 4 examined himself as P.W. 4. He is father of D. 9 Baleshwar Singh and brother of D. 8 Mayanand Singh and D. 6 Nand Kumar Singh. There were eight judgment debtors. The service report (Ext. 4) was that all of them refused to receive the notice and to grant the receipt. Except the three defendants aforesaid none has challenged the service of notice. Even defendant No. 4 Surendra Singh did not challenge the service upon himself. Can it then be said that the service report was necessarily false? It may further be noticed that none of the three defendants namely, Baleshwar Singh, Mayanand Singh or Nand Kumar Singh made any application u/s 476 complaining that no service had been effected upon them. It was the father of Baleshwar Singh who applied u/s 476. P.W. 4 Surendra Singh admitted in the first instance that his son Baleshwar Singh was in the village on 16 June 1969 but then he added la the next breath that he was present on 19 June 1969 and that he came to his village home to see the members of the family. It seems that the witness realising that he committed mistake by stating the date 16 June, 1969 the date of service of notice, he changed his statement and immediately said that Baleshwar Singh had come on 19.6.1969. It is curious to note that P.W. 4 said in his evidence that he did not remember whether he had appeared in the execution case or not. It is not understandable how a litigant can forget the fact whether he had appeared in the case or not. P.W. 4 further said that Mayanand Singh and Nand Kumar Singh were in village Dhurgaon on 16 June, 1969 but he admitted that there was not a chit of paper to prove it. He further made an unbelievable statement that he did not know even upto the date of his deposition as to how the notice was served upon him. He did not deny the service of notice upon himself. His evidence, therefore, cannot be held to be above suspicion. The prosecution examined three more witnesses during the inquiry u/s 476. P.W. 1 Rajendra Yadav a R.P.F. Sainik is a formal witness. He merely proved the entries in that attendance register and in the diary in order to prove the presence of Baleshwar Singh at Howrah. Ext. 1 is an entry in the attendance register. Exts. 2 and 2/a are entries in the diary. These entries were proved to show that Baleshwar Singh was at Howrah from 16 June 1969 to 18 June 1969. Counsel for the State placed much reliance on these entries and contended that a prima facie case is established by them. I do not agree. Admittedly P.W. 1 did not write these entries. The person who made the entries was not examined. Mr. Roy appearing for the appellant pointed out that it is not uncommon for a constable or other Government employee to come to his village home or to go to some other place without getting any leave and then fill up the attendance register after return. He submitted that if the person who made the entries would have appeared in the witness box the appellant would have cross-examined him effectively on this aspect of the matter. It was, therefore, urged that not much reliance should be placed upon such entries when the maker of the same was not brought in the witness box. The argument is not without force. Even if it be assumed for the moment that these entries create strong suspicion against the appellant, it cannot be held to be a prima facie proof of guilt. Any way expediency of the prosecution is still to be judged. P.W. 2 Dipti Singh said that Baleshwar Singh was not in his village home on 16 June 1969 and that Nand Kumar Singh and Mayanand Singh live in village Dhurgoan in the district of Saharsa. From the evidence on record (see D. Ws. 2 and 4 and Ext. B the deposition) it has been proved beyond doubt that the son of the appellant had deposed against the brother of this witness in a criminal case brought by one Moti Lai. There was, therefore, inimical feeling between this witness and the appellant Sant Bites Singh. P.W. 2 does not say shat Maya Nand and Nand Kumar were not present in the village on 16 June 1969. He merely said that they live in village Dhurgaon in the district of Saharsa. P.W. 3 Ram Nagina Singh gave evidence at the inquiry that Baleshwar, Maya Nand and Nand Kumar were not in the village from 16.6.1969 to 18.6.1969 but he admitted in his cross-examination that he din not maintain any diary and that he could not say when he came to Arrah and went to any place out side. He admitted that the aforesaid three persons come to their village from time to time on the occasion of marriage or on other occasion. The witness was deposing in the year 1971 and it is not believable that he would remember the three definite dates i.e. 16th June 1969 to 18th June 1969 concerning another family of the village. The serving peon is dead. There can be no doubt that the serving peon, if he was alive would be an important witness in the case. On account of his death an important piece of evidence would be lacking in the case.

The appellant examined six witnesses including himself. Out of them only two (D. Ws. 1 and 2) are material on the point of service of notice. Others are formal except D.W. 4 who is the son of the appellant and who proves enmity between his family and P.W. 3. D.W. 2 is the appellant himself. He may, therefore, be called interested witness. But D.W. 1 Raghunath Tiwary is a Brahmin aged about 80 years. He had made a note in his Bahi of the date 16.6.1969 because on that date he had borrowed Rs. 50/- from Surendra Singh. He asserted in his evidence in cross-examination that the Bahi was in his house and he could file it in court. His evidence was that Maya Nand, Nand Kumar and Baleshwar were present in the village and they refused to receive notice when the same was being served by the peon. This is all the evidence on record adduced by both sides. On the facts disclosed by these evidences it appears to me that the chances or the prospect of conviction are very remote in this case and it will not be expedient in the interest of justice to allow the prosecution to proceed any further. In my opinion, the prosecution is not fit to be sustained.

The court below has mixed the existence of prima facie case and expediency for prosecution in the interest of justice as if on the presence of the former the latter followed. It should have kept the two things separate. I have already shown that in the present case even prima facie case has not been proved and that there is no chance or prospect of success in the case. On this ground alone the complaint should be withdrawn. There is however, another ground also for withdrawal of the complaint. The affidavit was sworn on 8.7.1969. The complaint was made on 3-5-1972 i.e. after three years. By now it is more than nine years. I have already referred to the Supreme Court case of Chajoo Ram Vs. Radhey Shyam and Another, in which the question of long lapse of time of more than 10 years since the filing of the affidavit was considered to be a factor not wholly irrelevant for considering the question of expediency of initialing the prosecution for the perjury. Learned counsel for the appellant has raised some other points also in this case regarding the applicability of Sections 193 and 199 to the facts of the case. I do not think it necessary to discuss them. In the view which I have already taken about the case, I would allow the appeal and direct withdrawal of the complaint made by the Second Additional Subordinate Judge, Arrah.