Suraj Kaur and Others vs The State

P.C. Pandit, J.

1-2. Smt. Suraj Kaur made a report to the police u/s 325, Indian Penal Code, against Jaswant Singh and five others. The police, however, challaned only Jaswant Singh. The allegation of Smt. Suraj Kaur was that Jaswant Singh had broken her tooth by giving a jelly blow. She was supported by Smt. Bhani, Smt. Lado, Smt. Devi ant Gordhan in this respect. In cross-examination, however, Smt. Suraj Kaur admitted that she had herself broken her tooth and on that basis Shri K.N. Mehra, Magistrate 1st Class, Delhi, acquitted Jaswant: Singh by his order dated 31.7.1958.

On 18.10.1958 Jaswant Singh filed an application u/s 470 of the Code of Criminal Procedure in the Court of the said Magistrate against Smt. Suraj Kaur and her four witnesses mentioned above, praying that a complaint under Sections 211/109 and 193/195, Indian Penal Code, be lodged in a Court of competent jurisdiction.

This application, was disposed of by Shri P.C. Bhatia, Magistrate 1st Class, successor of the aforesaid Magistrate, who by his order dated 23.9.1959 directed that a complaint under Sections 193/211, Indian Penal Code, be made against Smt. Suraj Kaur and u/s 193, Indian Penal Code, against the four witnesses mentioned above. Thereupon Smt. Suraj Kaur and the abovementioned four persons filed a revision before the learned Additional Sessions Judge, who has recommended that the order dated 23.9.1959 of Shri P.C. Bhatia, Magistrate 1st Class, be set aside. The reasons given by the learned Additional Sessions Judge are:

(1) That the learned Magistrate had no jurisdiction to entertain the application u/s 476, Criminal Procedure Code, because the provisions of this section stood repealed by implication by the provisions of Section 479-A, Criminal Procedure Code and reliance for this was placed Parshotam Lal L. Vir Bhan Vs. Madan Lal Bashambar Das, and Jai Bir Singh Vs. Malkhan Singh and Another,

(2) that the order in question was not in conformity with the provisions of Section 479-A of the Code of Criminal Procedure because Shri K.N. Mehra, Magistrate 1st Class, did not make such an order at the time of the delivery of judgment on 31.7.1958.

After hearing the counsel for the parties, I am of the view that the learned Additional Sessions Judge was not right in holding that the provisions of Section 476, Criminal Procedure Code, stood repealed by implication by the provisions of Section 479-A of the Code of Criminal Procedure. The authority relied upon by the learned Additional Sessions Judge, namely Parshotam Lal L. Vir Bhan Vs. Madan Lal Bashambar Das, which followed Jai Bir Singh Vs. Malkhan Singh and Another, lays down:

The provisions of Section 479-A override the provisions of Sections 476 to 479, in so far as they relate to the giving of false evidence or fabricating false evidence by a person who gives evidence during the course of the judicial proceedings.

From this it is clear that the provisions of Section 479-A override the provisions of Section 476, Criminal Procedure Code, only in so far as they relate to an offence u/s 193 and not Section 211, Indian Penal Code. In State of Bombay v. Premdas Sukritdas Gadhewal Koshti AIR 1960 Bom 483, it was observed:

it is clear from the wording of Section 476 and Section 479-A and its marginal note that Section 479-A does not contain an exhaustive and self-contained procedure relating to all classes of perjury, Section 479-A applies where the Court acts suo motu at the time of declaring its judgment, and records a finding that a person appearing before it as a witness had intentionally given false evidence or; has intentionally fabricated false evidence, Section 476 deals with cases, where the Court can act or an application made to it in this behalf or otherwise. u/s 476, the Court can act even when no application is made to it, It is, therefore, clear that Section 479-A of the Code applies only to certain cases of false evidence, namely, serious, flagrant and patent cases of perjury where the Judge acts u/s 479-A(1), and that Section 476 applies to all other cases of false evidence where the Judge has not recorded a finding u/s 479-A(1).

Further, cases u/s 211, Indian Penal Code, do not come within the scope of Section 479-A but come under Sections 476 to 479 of the Code. Similarly cases under Sections 205, 206, 207, 208 and 463, Indian Penal Code, come only under Sections 476 to 479 and not u/s 479-A of the Code.

The view, therefore, that the intention of Sub-section (6) of Section 479-A is to exclude cases of perjury from the operation of Sections 476 to 479, is not correct.

Similarly in Chhote Lal Sahu Vs. Uchit Mahton, it was held:

Section 479-A only applies to a case where a witness hag intentionally given false evidence in any stage of a judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of a judicial proceeding. The language used is exactly similar to the language used in Section 193, Penal Code, and it is obvious that Section 479-A, Criminal Procedure Code, therefore, applies to a case where an offence is alleged to have been committed u/s 193, Penal Code.

Since I have held that the provisions of Section 479-A do not by implication repeal the provisions of Section 476, Criminal Procedure Code, in so far as the offence u/s 211, Indian Penal Code, is concerned, the order of the trial Magistrate directing a complaint to be filed against Smt. Suraj Kaur alone u/s 211, Indian Penal Code, only is valid in law. However, for the reasons given by the learned Additional Sessions Judge, the order of the trial Magistrate directing a complaint to be filed u/s 193, Indian Penal Code, against Smt Suraj Kaur and her four witnesses is set aside.

The petition is accepted to the extent indicated above.