iminal Appeal No 69 of 1966
Appeal by special leave from the judgment and order dated December 9 1965 of the Madras High Court in Criminal Revision Case No 1261 of 1964 and Criminal Revision Petition No 1235 of 1964
R Thiagarajan for the appellants
Purshottam Trikamdas and T V R Tatachari for the respondent
374 The Judgment of the Court was delivered by Ramaswami J
The 2nd petitioner Kuppuswami lodged a a complaint with Yercaud Police on October 12 1963 alleging that the respondent M section P Rajesh and other persons had formed an unlawful assembly and committed offences of house trespass mischief and causing hurt at 10 pm on October 11 1963
The complaint was the subject matter of investigation by the police who did not present a charge sheet against respondent M section P Rajesh but filed a charge sheet against 4 other persons under sections 323 325 and 448 Indian Penal Code in CC No 30971963 in the Court of Sub Magistrat 3 Salem
The case was tried by the Sub Magistrate who ultimately acquitted all the accused by his judgment dated December 13 1963
In the course of evidence at that trial the 1st petitioner was examined as PW 1 and 2nd petitioner as PW 2 and it is alleged by the respondent that the petitioner gave false evidence to the effect that the respondent was also among the trespassers and assailants and that he was armed with a gun which another accused took from him
After the conclusion of the trial the respondent filed a petition in the court of the Magistrate under section 4761 Criminal Procedure Code alleging that on October 11 1962 he along with certain other Directors had attended a meeting of the Board of Directors of Chembra Peak Estate Ltd from 430 pm to 515 pm at Bangalore and that he was not at Yercaud on October 11 1963 and prayed for the prosecution of the petitioners for giving false evidence under section 193 Indian Penal Code
The respondent produced a copy of the Draft Minutes of the Board meeting and also cited certain witnesses in support of his case
After considering the matter the Sub Magistrate of Salem held that he was satisfied that the respondent could not have been present at the alleged occurrence on October 11 1963 at Yercaud and that PWs 1 and 2 deliberately committed perjury and implicated Mr Rajesh as among the assailants
The Sub Magistrate thought that in the interest of justice the petitioners should be prosecuted under section 193 Indian Penal Code and accordingly filed a complaint against the petitioners under section 193 Indian Penal Code in the Court of District Magistrate Judicial Salem
The petitioners contended that the complaint was not maintainable in law because the trying Magistrate had not followed the procedure under section 479 A Criminal Procedure Code and it was therefore not open to the Magistrate to take recourse to the provisions of section 476 Criminal Procedure Code
By his order dated February 10 1964 the District Magistrate discharged the petitioners holding that the complaint was not sustainable in view of the decision of this Court in Shafer Hussain Bholu vs State of Maharashtra1
Thereupon the respondent filed Criminal
RC No 1261 of 1964 in the Madras High Court against the order of the District Magistrate Judicial Salem
By his 375 judgment dated December 9 1965 Anantanarayanan J set aside the orders of the District Magistrate Judicial and directed that the case should be taken up by the District Magistrate and the trial proceeded with in accordance with law
This appeal is brought by special leave from the order of the Madras High Court dated December 9 1965 in Crl
RC No 1261 of 1964
The question of law arising in this case is what is the true meaning and scope of section 476 Criminal Procedure Code in the context of section 479 A1 and 6 Criminal Procedure Code with regard to a prosecution authorised by a Court in respect of an offence of prejury committed before it in the course of the trial Chapter XXXV of the Code of Criminal Procedure prescribes the procedure to be followed for prosecution of offenders in case of certain offences affecting the administration of justice
Section 46 sets out the procedure for prosecution of offenders for offences enumerated in section 1951b and c of the Code of Criminal Procedure
If a Civil Revenue or Criminal Court is of opinion that it is expedient in
the interests of justice that an enquiry should be made into any offence referred to in section 1951b or c which appears to have been 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 and forward the same to a Magistrate of the first class having jurisdiction
Section 476 A authorises a superior Court to make a complaint where a Subordinate Court has omitted to do so in respect of offences and in the circumstances mentioned in section 4761
Section 476 B provides for a right of appeal against the order making or refusing to make a complaint
Sections 478 and 479 deal with the procedure which may be followed in certain grave cases
Section 479 A which was added by the Code of Criminal Procedure Amendment Act 26 of 1955 by the first sub section in so far as it is material provides as follows
479 A 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 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 therefor and 37 6 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     Sub section 6 of this section enacts as follows 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
The scheme of section 479 A is to enact a special procedure for the more expeditious and effective manner of dealing with certain cases of perjury and fabrication of false evidence by witnesses in the course of judicial proceedings
There is however a necessary condition for the application of section 479 A Criminal Procedure Code
The condition is that the Court before it delivers its judgment or at any rate at the time of delivering the judgment must form an opinion that a particular witness or witnesses is or are giving false evidence if the court could not form any opinion about the falsity of the evidence of the witness appearing before it then certainly the court cannot at the time of delivering its judgment record any finding about the same
It is manifest that a court can come to a conclusion that a witness is false only when there are materials placed before it to justify that opinion
If no materials are placed before the court to enable the court to form an opinion that a witness is giving false evidence then certainly it could not form that opinion
In the present case the respondent produced material before the trial court on December 23 1963 after the conclusion of the trial that the petitioners had given false evidence in the case and the respondent produced the necessary documents along with an application for proceeding against the petitioners under section 476 Criminal Procedure Code
Till those documents were produced there was no opportunity or occasion for the magistrate to form an opinion about the falsity of the evidence adduced by the petitioners
It is therefore manifest that at the time when the judgment was delivered the magistrate had no material before him to form an opinion that the petitioners had given false evidence
It is only after the respondent had made his application on December 23 1963 and brought the necessary material to the notice of the court that the falsity of the evidence of the petitioners became apparent and the magistrate was in a position to form an opinion about the falsity of the evidence given by the petitioners
It is therefore clear that section 479 A will not be applicable on the facts of this case and if the provisions of section 479 A will not apply on the facts of this case it follows that the bar contemplated by cl
6 of that section will not be applicable
The reason is that cl
6 can be invoked only in cases in which 377 s479 A1 will be applicable
The crucial words of cl
6 are if in respect of such a person proceedings may be taken under this section
It is clear that the bar under section 479 A 6 refers not to the legal character of the offence per se but to the possibility of action under section 479 A upon the facts and circumstances of the particular case
If for instance material is made available to the court after the judgment had been pronounced rendering it clearly beyond doubt that a person had committed perjury during the trial and that material was simply unavailable to the Court before or at the time of judgment it is very difficult to see how the court could have acted under section 479 A Criminal Procedure Code at all
It cannot be supposed that the legislature contemplated that such a case of perjury however gross should go unpunished in such circumstances
It appears to us that the true interpre tation of the language of cl
6 of section 479 A is that it does not operate as a bar to the prosecution for perjury in a case of this description
Take for instance the trial of A  for the murder of B  in the Sessions Court where C  D  and E  gave evidence that they actually saw A  committing the murder of B 
Suppose at the conclusion of the trial and after delivery of judgment by the Sessions Court B  is found alive and there is incontestable evidence to show that A  was falsely charged for the murder of B 
Is it to be contemplated that in such a case there is no re medy available to the Court to prosecute C D and E for perjury under the provisions of section 476 Criminal Procedure Code though action cannot be taken in the circumstances of the case under section 479 A Criminal Procedure Code In our opinion such a startling consequence was not contemplated by Parliament and the bar of cl
6 of section 479 A was intended only to apply to cases of perjury and fabrication of false evidence in which the trying Magistrate could have acted under section 479 A1
In other words the bar of cl
6 will not apply to a case where perjury is detected not merely with reference to the evidence adduced at the trial but with reference to the evidence adduced in some other distinct proceeding not then brought before the court or because there is some other material subsequently produced after the conclusion of the trial and delivery of judgment which renders the prosecution for perjury essential in the interests of justice
Applying the principle in the present case we are of opinion that the prosecution of the petitioners under the provisions of section 476 Criminal Procedure Code by the Magistrate after the conclusion of the trial is legally valid and is not affected by the bar of cl
6 of section 479 A Criminal Procedure Code
On behalf of the appellants Mr Thiagarajan referred to the decision of this Court in Shabir Hussein Bholu vs State of Maharashtra1
But the Principle of that decision does not afford any assistance to the appellants in this case
It appears that the 1 1963 Supp 1 SCR 501
378 appellant in that care appeared as a witness in a jury trial for murder
Before the Court he gave a statement contradictory to the one he had given before the committing court
After the conclusion of the trial and delivery of judgment the Sessions Judge passed a separate order for prosecution of the appellant for intentionally giving false evidence under section 193 Indian Penal Code
It was held by this Court that the provisions of section 479 A had not been complied with and
no cognizance could be taken of the offence
Two conditions were laid down for the exercise of the powers under section 479 A i the court must form an opinion that the person has committed one of the two categories of offences referred to in section 479 A and ii the Court must come to the conclusion that for the eradication of the evils of perjury etc
and in the interests of justice it is expedient that the person be prosecuted
This opinion and conclusion must be arrived at the time of the delivery of the judgment or final order in the trial  the court cannot later on resort to section 476 and make a complaint against the witnesses
The provisions of section 479 A were held applicable to the case and the fact that the trial was with the aid of a jury did not preclude the Sessions Judge from recording the findings required by section 479 A
While considering whether action should be taken under section 479 A it was open to the Sessions Judge to say whether the evidence tendered at the trial was true or false
It is manifest that the material in that case was produced before the Sessions Court for coming to the conclusion that the appellant had committed perjury and so the procedure contemplated In section 479 A1 was applicable and since the Sessions Judge did not proceed under that section though he could have done so the bar contemplated by cl
6 of section 479 A operated and no action could have been taken under section 476 Criminal Procedure Code
The ratio of that decision is not applicable to the present case because the material facts are different
It is necessary to add that in Shabir Hussein Bholu vs State of Maharashtra1 this Court observed that if the Judge is unable to come to a conclusion that the statement made at the trial is false then provisions of section 479 A 1 would not be applicable
At page 512 of the Report it was observed by this Court as follows But for considering the applicability of section 479 A1 what hag to be borne in mind is that in a jury trial it is possible for the Judge to come a conclusion that the statement made at the trial is false
If he comes to that conclusion then as rightly observed in Badullah s case AIR 1961 All 397 he has no option but to proceed under section 479 A1 Cr
PC The question then is whether he could act under this provision if he is unable to form an opinion one way or the other as to whether the evidence tendered at the trial is false or the evidence before the committing Magistrate is false
What would be the position in such a case If the proceed 1963 Supp 1 SOR 501
379 ings before the committing Magistrate must be held to be entirely separate proceedings then we agree with the Allahabad High Court that section 479 A1 would not apply
 There is divergence of opinion among the various High Courts on the question of law presented for determination in this case
In Jai Bir Singh vs Malkhan Singh and another1 it was held by Sahai J that the bar of section 479 A6 applies to all cases of perjury viz 1 those where the perjury or the fabrication of false evidence has been detected by the court when the judgment is pronounced and 2 cases where the perjury or fabrication of false evidence does not come to light till after the judgment has been pronounced and it was not open to the Court to proceed under section 476 Criminal Procedure Code for prosecution in the latter class of cases
The same view has been taken by the Punjab High Court in Parshotam Lal L Vir Bhan vs Madan Lal Bishambar Das2 and the Rajasthan High Court in Amolak vs State1
A contrary view has been expressed by the Madras High Court in C P Kasi Thevar vs Chinniah Konar4 and In re Gnanainuthu5
For the reasons already expressed we are of opinion that the decision of the Madras Court in CP Kasi Thevar vs Chinniah Konar4 and In re Gnanamuthu5 represents the correct law on the point
For these reasons we hold that there is no merit in this appeal which is accordingly dismissed
Appeal dismissed
AIR 1958 All
2 AIR 1959 Punjab 145
3 AIR 1 AIR 1960 Mad 77
5 AIR 1964 Mad


Summary:
At a trial the appellants gave evidence against the respondent
After the Conclusion of the trial the respondent filed a petition in the court of the Magistrate under section 4761 Criminal Procedure Code praying for the prosecution of the appellants for giving false evidence under section 193 Indian Penal Code and adduced evidence in sup port of his contention
The Magistrate thought that in the interest of justice the appellants should be prosecuted and accordingly filed a complaint
The appellants contended that the complaint was not maintainable because the trying Magistrate had not followed the procedure under section 479 A Criminal Procedure Code and it was therefore not open to the Magistrate to take recourse to the provisions of section 476
HELD The prosecution of the appellants under the provisions of section 476 Criminal Procedure Code by the Magistrate after the conclusion of the trial was legally valid and wag not affected by the bar of cl
6 of section 479 A Criminal Procedure Code
377G The bar of cl
6 will not apply to a case where perjury is detected not merely with reference to the evidence adduced at the trial but with reference to the evidence adduced in some other distinct proceeding not then brought before the court or because there is some other material subsequently produced after the conclusion of the trial and delivery of judgment which renders the prosecution for perjury essential in the interests of justice
377 F Shabir Hussein Bholu vs State of Maharashtra 1963 Supp
I SCR 501 explained and distinguished
CP Kasi Thevar vs Chinniah Konar AIR 1960 Mad 77 and In re Gnanamuthu AIR 1964 Mad
446 approved
Jai Bir Singh vs Malkhan Singh
AIR 1958 All
364 Parsotam Lal Vir Bhan vs Madan Lal Bashambar Das AIR 1959 Punj
145 and Amolak vs State
AIR 1961 Rai 220 disapproved