Vir Bhan Dharam Chand vs Sunder Singh Jaimal Singh

D. Falshaw, C.J.

1.Two revision petitions have been filed by Vir Bhan in the following circumstances. Kala Singh respondent in one of the cases filed a complaint in the Court of a Magistrate u/s 107 read with Section 151, Cr. P. C. against Vir Bhan and others including Vir Bhan''s son Amar Singh alleging that on the 5th of November, 1962 they had threatened to murder Kala Singh unless he gave up possession of certain land. In support of these allegations Kala Singh and the respondent in the other case Sunder Singh appeared as witnesses and made statements alleging inter alia that Amar Singh was present on the 5th of November 1962 and had joined in threatening Kala Singh. However, at the hearing fixed for the 9th of April 1963, Kala Singh failed to appear and the learned Magistrate merely passed an order u/s 247, Cr. P. C. discharging the respondents.

It seems probable that Kala Singh absented himself and allowed his complaint to be dismissed in default because Amar Singh had an alibi for the 5th of November 1962 which could be conclusively established. It has in fact been alleged by Vir Bhan that Amar Singh had enlisted in the Army on the 1st of November 1962 and from the 2nd of November onwards he was at a Regimental Training Centre at Kota Bundi in Rajasthan. In these circumstances Vir Bhan filed an application u/s 476, Cr. P. C. for the prosecution of Kala Singh under Sections 193 and 211, I. P. C. and for the prosecution of Sunder Singh u/s 193, I. P. C. The learned Magistrate who had succeeded the Presiding Officer who passed the order dismissing the complaint of Kala Singh accepted the application and ordered the filing of complaints against Kala Singh under both sections and against Sunder Singh u/s 193. Both filed appeals and the learned Sessions Judge while upholding the order so far as it concerned the prosecution of Kala. Singh u/s 211, I. P. C. accepted the appeals of both and dismissed the application u/s 476 so far as it related to their prosecutions u/s 193, I. P. C.

The ground for the decision of the learned Sessions Judge was that the learned Magistrate had not taken proceedings u/s 479A and could not fall back on Section 476. The basis of his decision was the decision of the Supreme Court in Shabir Hussein Bholu Vs. State of Maharashtra, .

The facts in that case were that one Rafique Ahmad was tried in the Court of an Additional Sessions Judge at Bombay on a charge of murder with two other accused charged with abetment. The trial was held with the aid of a Jury. Shabir Hussain Bholu had appeared as a prosecution witness and whereas in the Court of the committing Magistrate he made a statement supporting the prosecution story, as a witness at the trial he said that he had not seen the murder committed. After the Judge''s summing up the Jury found the accused guilty u/s 304, Part I, I. P. C., and after the trial was over the learned Additional Sessions Judge issued notice to Shabir Hussain Bholu u/s 476, Cr. P. C. and eventually ordered his prosecution u/s 193, I. P. C. for having made two contradictory statements on oath. The relevant provisions of Section 479-A, Cr. P. C. read:--

"(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............

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........................

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."

On the above facts the Supreme Court held that the learned trial Judge ought to have proceeded against the appellant before it under the provisions of Section 479-A and could not take action against him after the conclusion of the trial u/s 475. The point was raised that in a trial conducted by a Jury the Judge did not have to write a judgment in the ordinary sense, and he had merely to sum up the evidence for the benefit of the Jury which was to give the verdict, but the learned Judges held that it had to be borne in mind that though it was for the Jury to give its verdict regarding the guilt or the innocence of the accused it was open to the Judge to accept or reject the verdict and, therefore, it was necessary for him to record a short judgment either accepting or rejecting the verdict. It was pointed out that when he rejects the verdict the law requires him to refer the case to the High Court u/s 307, Cr. P. C. and in either case he gets an opportunity of recording the kind of finding which is required by Section 479-A.

It does not appear to me, however, that this decision is applicable in the present case in which no kind or judgment was written, or needed to be written, by the learned Magistrate when, in the absence of the complainant, he merely dismissed the complaint and discharged the respondents u/s 247, Cr. P. C. In fact no evidence was led before him on the basis of which he could have given a finding that the witnesses had committed perjury when they deposed regarding the presence of Amar Singh at the time of the occurrence, for the simple reason that Kala Singh absented himself after the statement of himself, Sunder Singh and another witness whom he produced had been recorded. In these circumstances all the learned Magistrate had to do was to pass an order u/s 247, Cr. P. C. dismissing the complaint and discharging the respondents. The case is thus clearly distinguishable from the decision of the Supreme Court relied on by the learned Sessions Judge, and this was clearly a case in which an application u/s 476 of the Code was rightly entertained by the learned Magistrate.

On the merits of whether this is a proper case for prosecuting Kala Singh and Sunder Singh u/s 193, I. P. C. there is obviously nothing to be said for the respondents, who involved Amar Singh in the alleged incident although he could not possibly have been present. The result is that I accept these revision petitions and restore the order of the trial Court ordering the prosecution of Kala Singh and Sunder Singh u/s 193, I. P. C. as well as the prosecution of Kala Singh u/s 211, I. P. C.