State of Orissa vs Jagannath Baral and Another

R.K. Das, J.—This appeal is preferred against an order of acquittal dated 6-2-1960 passed by Sri R.N. Dhal Samanta, Magistrate, First Class, Puri, in Case No. C(II) 129/60.

The prosecution case may be stated as follows: Jagannath Baral, accused No. 1, filed a criminal case No. C(I)465 of 1958 against Kashinath Mohapatra and others under Sections 323/426, Indian Penal Code before the Sub-divisional Magistrate, Puri. The case was transferred to the Court of Sri A. K. Dasgupta, Sub-Deputy Magistrate, III Class, Puri (P.W. 6) who recorded the evidence of some of the witnesses including that of the present accused persons both of whom figured as prosecution witnesses in that case. Ultimately judgment (Ex. 3) in that criminal case was delivered by Shri P.C. Patnaik, Magistrate III Class, Puri, (P.W. 2) on 30-9-1959, acquitting the accused persons in that case. Thereafter on 22-12-1959, Kasinath Mohapatra (P.W. l), who was an accused, in the previous criminal case, filed a petition (Ex. 4) to start a proceeding u/s 476, Code of Criminal Procedure for prosecuting the present Respondents Jagannath Baral and Golakh Baral u/s 193, Indian Penal Code as they gave false evidence in the previous Criminal case by denying the suggestion that Dukhisyam is the brother of Golak. After necessary inquiry, Sri P.C. Patnaik, Magistrate, (P.W. 2) filed a complaint (Ex. 5) before the Sub-Divisional Magistrate, Puri on 22-9-1960. The case ultimately came up for hearing before Sri K.N. Dhal Samanta, Magistrate, First Class, Puri, who, though held that the accused persons did really make false statements in the previous criminal case, passed an order of acquittal as according to him the Trying Magistrate had enough materials to record a finding and to lodge a complaint u/s 479A(1), Code of Criminal Procedure and since he had failed to do so, a subsequent proceeding u/s 476, Criminal Procedure was not competent and no complaint could be instituted on the basis of such an inquiry. The learned Magistrate relied upon a number of decisions of different High Courts of India in coming to such a finding. It is against this order of acquittal the Government has filed the present appeal.

This controversy arose on account of the Section 479A, Code of Criminal Procedure added by the amending Act No. 26 of 1955. It is necessary to quote the relevant provisions of the section to appreciate the arguments advanced in this case:

479A(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 ''had, intentionally given false evidence in any stage of the judicial proceedings or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceedings'', and that, ,for the eradication of the evils of perjury and fabrication of false evidence and in the interest 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 there for 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 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:

(6) No proceeding 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.

The penal provision mentioned in Section 479A(1) regarding giving of false evidence is more or less a reproduction of Section 192, Indian Penal Code. Section 479A(6), however, bars proceedings under Sections 476 to 479, Criminal Procedure both inclusive for prosecution of a person "for giving or fabricating false evidence", that is, in respect of an offence u/s 192, Indian Penal Code if in respect of such person proceeding may be taken up in this section.

The relevant portion of Section 476, Code of Criminal Procedure rules as follows:

(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 interest of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), clause (b) or clause (c), which appears to have been done, committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, 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, and may take sufficient security for the a appearance of the accused before such Magistrate or if the alleged offence is nonbailable may, if it thinks so to do send the accused in custody r to such'' Magistrate, and may bind over any person to appear and give evidence before such Magistrate:

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To appreciate the scope and implication of Section 476 it is necessary to read the section along with Section 195, Code of Criminal Procedure. u/s 195(1)(b) no Court shall take cognizance of an offence punishable u/s 193, Indian Penal Code (and also some other offences) except on the complaint in writing of a Court or of some other Court to which such court is subordinate. Clearly, therefore, giving or fabricating false evidence comes within the scope of both Sections 476(1) and 479A(1) of the Code of Criminal Procedure and to some extent these two sections overlap each other. No doubt an anomalous position arises in the practical application of both the sections to a particular case.

It is a settled position of law that where in an enactment there are two provisions which cannot be reconciled with each other they should be so interpreted and should be so harmoniously construed so as to give effect to both, if possible. So both the sections shall be so construed as not to lead to any absurdity or to cause any practical inconvenience in their operation. The scope of Section 479A, however, appears to be so mew hat different from that of Section 476. Section 479A deals only with cases of intentionally giving or fabricating false evidence at any stage of a judicial proceeding as contemplated u/s 193, Indian Penal Code and does not deal with any other kind of offence whereas the scope of Section 476 is wider and covers various kinds of other offences in respect of which possibly no action can be taken u/s 4 79A. Under both the sections a Court is quite competent to take action suo motu without any application from any party, though u/s 476 a Court may take action on the application of a party. u/s 479A however there is no provision for any action being taken on the application of a party. On the other hand it provides that when any Court is of opinion that any person appearing before it as a witness intentionally gives or fabricates false evidence it may for the eradication of the evils of perjury and fabrication of false evidence record a finding to that effect at the time of delivery of the judgment or final order and file a complaint against such person. In other words, if a glaring case of perjury comes to the notice of the Court, the Court may record a finding to that effect and file a complaint. If on the other hand from the materials before him he is unable to come to such a finding, is he debarred u/s 479A(6), Code of Criminal Procedure from taking any subsequent action u/s 476, Code of Criminal Procedure? It cannot, however, be contended that Sub-section (6) of Section 479A completely excludes operation of Sections 476 to 479 and makes these sections redundant. In fact each of the two sections can operate in their own fields. In order to avoid any conflict, Section 476A(6) excludes the operation of Sections 476 to 479 only in respect of such cases where action may be taken u/s 479A.

The question for consideration is what is the respective field of operation of the aforesaid provisions and in what cases action may be taken u/s 479A(1) so as to exclude the operation of Sections 476 to 479. On this point there appears to be a division of opinion amongst different High Courts of India. In a case reported in Jai Bir Singh Vs. Malkhan Singh and Another, it was laid down to the effect that after the introduction of Section 479A by the Amending Act 26 of 1955 all cases of witnesses giving or fabricating false evidence in a proceeding pending in a court are governed by that section and to that extent Section 476 stands repealed. This decision was relied upon by the Punjab High Court in a case reported in Parshotam Lal L. Vir Bhan Vs. Madan Lal Bashambar Das, and by the Madhya Pradesh High Court reported in Mannalal Sardarmal Jain Vs. Ramkishan Jodhraj Maharaj, . The same view was taken by the Andhra Pradesh High Court in a case reported in In Re: Muniamma and Others, . The Patna High Court in a case reported in AIR 1961 Pat. 715 held that, so far as an offence u/s 193, Indian Penal Code is concerned a Court is not competent to subsequently proceed u/s 476, Code of Criminal Procedure if it has not recorded a finding of perjury in its judgment and filed a complaint u/s 479A(1), Code of Criminal Procedure.

The other views on the point may now be examined. The Allahabad High Court in a later case reported in Durga Prasad Khosla Vs. The State of Uttar Pradesh, dissented from the view expressed in Jai Bir Singh Vs. Malkhan Singh and Another, and held that Section 479A had not impliedly repealed Section 476 of the Code of Criminal Procedure in respect of all cases of witnesses giving or fabricating false evidence in judicial proceedings, but the provisions of Section 476 were still available for witnesses whose case could not be brought u/s 479A for one reason or another. Their Lordships were of the view that Section 479A was enacted to give additional power to the Court authorising it to deal speedily with more flagrant or serious cases of intentionally giving false evidence in judicial proceeding and the less serious types of offences could however be dealt with u/s 476. Code of Criminal Procedure Of course their Lordships did not lay down any test to determine the difference between the types of such offence. The latter view of the Allahabad High Court has been approved by the Bombay High Court in a case reported in State of Bombay Vs. Premdas Sukritdas Gadhewas Koshti and Others, where his Lordship was of the view that Section 479 applies only to certain cases of false evidence, namely, serious, flagrant and patent cases of perjury where the Judge acts u/s 479A(1) and that Section 476 applies to all other cases of false evidence where the Judge has not recorded a finding u/s 479A(1). Thus Section 479A(6) does not exclude all cases of perjury from the operation of Section 476 to Section 479, Code of Criminal Procedure His Lordship dissented from the aforesaid views expressed in AIR 1958 All. 3641, 1959 P&h 1452 and 1959 M.P. 2643. A case reported in AIR 1960 Mad. 778 has however taken a slightly different view. His Lordship held that a Court could come to a conclusion that a witness is false only when there were materials placed before it to justify that opinion. Mere appearance of a person as a witness will not justify a Court to take action u/s 479A. Where it is only after the judgment was delivered that the necessary documents which would establish the falsity of the evidence were obtained and brought to the notice of the Court. Section 479A would not apply and Sub-section (6) would not operate as a bar for proceeding under Sections 476 to 479 of the Code of Criminal Procedure. I am in complete agreement with the aforesaid view of the Madras High Court.

Section 479A has been introduced as new provision undoubtedly to deal with glaring cases of perjury which are apparent on the face of the record. Sub-section (6) of that section explains to some extent the scope and purpose of the new provision. According to that sub-section no proceeding shall be taken under Sections 476 to 479 for the prosecution of a person giving or fabricating false evidence if in respect of such a person proceedings may be taken u/s 479A. In other words, if there are materials before it from which the Court could come to a finding, it should record such a finding and make a complaint against the person who had given or fabricated false evidence. In such cases no action could be taken under Sections 476 to 479. If on the other hand there were no materials before it at the time of the delivery of judgment or a final order, but it came to its notice subsequently then obviously it could not have given a finding at the time of the judgment and thus Sub-section (6) of Section 479A cannot operate as a bar to take action u/s 476. There may yet be another position where there were enough materials before it to come to a finding about the veracity of a witness and to reject the evidence of a witness as false but the Court for some reason or other does not give a finding or file a complaint as contemplated u/s 479A. In my opinion in such a case Sub-section (6) comes as a bar and no further action can be taken u/s 476. In that event it may be taken as if the Court did not consider it a fit case where a complaint should be filed u/s 479A and the Court should not on the very same materials subsequently act u/s 476 on the application of a party. If such a course is permissible, then Section 479A becomes practically redundant. Such an action may defeat the very purpose of the new Section 479A-one of the objects of which is to take expeditious section for the eradication of the evils of perjury. Otherwise a party may come at his leisure and pleasure to move a Court u/s 476 after lapse of any length of time.

In view of the aforesaid legal position it is now necessary to examine if there was any material before the trying Magistrate (P.W. 2) to come to a finding that the present Respondents gave false evidence before him so that he could have filed a complaint u/s 479A. It appears from the evidence that all the documents except the Voters List (Ex. 8) and the Census List (Ex. 9) were before the said Magistrate (P.W. 2) in case No. C(I) 465 of 1958. Ex. 8 has been produced to show that Golak and Dukhishyam are two brothers being the sons of one Banchanidhi Baral. It may be mentioned here that in Ex. 8 Banchanidhi Baral, the father of Dukhishyam is noted to be dead whereas there is no such note as against Banchanidhi Baral, the father of Golak. Golak was also confronted in his cross-examination with the mortgage and sale transactions said to have been made by him and his brother. He, however, denied that Dukhishyam was his brother. The learned Magistrate applied his mind to all the oral and documentary evidence in that case and was of opinion that he could not place any reliance on the evidence of Golak who disowned his own brother Dukhishyam. P.W. 2 has admitted in his cross examination that before receipt of Ext. 4 (the application u/s 476) he felt that it was a fit case u/s 193, Indian Penal Code and that all the exhibits of the previous case were before him when he considered the petition (Ex. 4) and his present complaint was based upon these exhibits. Clearly, therefore, he had all the materials before him at the time of delivery of the judgment to decide whether the witnesses gave false evidence or not and to give a finding to that effect and to lodge a complaint u/s 479A; but he did not choose to do so though he found Golak as an unreliable witness. In view of such a position, in my opinion, no action can now lie u/s 476, Code of Criminal Procedure as for all purposes no new materials were placed before P.W. 2 to justify any action u/s 476, Code of Criminal Procedure.

Coming to the case of Jagannath Baral, the evidence against him is practically the same as against Golak. The same evidence-both oral and documentary-was produced before P. W. 2 to show that Golak and Dukhishyam are both sons of one Banchanidhi Baral Jagannath in his cross examination in the previous case said "Golak Baral is the son of Banchanidhi. Dukhishyam, son of another Banchanidhi, deposed in my favour. There are no new materials placed before P.W. 2 to make out a complaint u/s 476, Code of Criminal Procedure against Jagannath also. That there is another Banchanidhi Baral cannot be dispute. P.W. 5 has said that there are three Banchanidhi Barals in that village, one having one son, the other two and the third three sons. The witness has not placed before the Court the names of the sons of Banchanidhi to verify the correctness of his evidence. It is thus clear that no new materials were before P.W. 2 to entitle him to take action u/s 476, Code of Criminal Procedure. In fact he had all these evidence before him when he delivered the judgment in the previous case to come to a finding whether Golak and Jagannath gave false evidence. Since he, having all the materials before him, did not consider it a fit case to record a finding and file a complaint u/s 479A, Code of Criminal Procedure I do not think, in view of Sub-section (6) of Section 479A, he can later on file a complaint u/s 476, Code of Criminal Procedure.

That being the position the complaint and the trial based upon the same are incompetent. It is unnecessary to examine the merits of the case to find out if the present Respondents committed any offence u/s 193, Indian Penal Code.

In the result, therefore, there is no merit in this Government Appeal which is accordingly dismissed. The bail bonds of the Respondents are cancelled.