BABAN SINGH AND ANR.

JAGDISH SINGH & ORS.

February 8, 1966

[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT JJ.j

Indian Penal Code, 1860, ss. 191, 192 and 199-F/llng affidavit containing false statements before High Court-Offence under which section commuted.

Code of Criminal Procedure, ss. 476 and 419-A(6)-0fiences by witnesses under ss. 191 and 192 Penal Code-S. 479..A app/le, and octkin

wnder s. 476 c1111110t be taken.

The appellants made affidavits in the High Court dcnyinii receipt of money '1}' way of compromise in a first appeal pending before that Court. The High Coun ordered the Registrar to hold an enquiry. The

Resistrar after recording the evidence of the parties reported that the appellants' denial of receipt of money was false. Thereafter an application was made to the High Court under s. 476 of the Code of Criminal Procedure which was kept pending and taken up after the appeal was decided.

D Tho Hiab Coun held that tho olfence committed by tho appellan:a - ou under 8. 199 Indian Penal Code and ordered the Registrar to file a complaint.

The appellanta came to this Coun under

1. 4768.

The questions for consideration were;

(I) whether the otrence committed by the appellants fell under s. 191 and 192 of the Penal Code or under 8. 199, and (2) whether proceedings under s. 479-A could be llleo against the appellants, for if they could be, then action ouiibt to have been taken under that section and s. 476 could not be invoked.

HELD : (i) When the appellants made declarations in their affidavits which were tendered in tho High Coun to ho taken into consideration intended the statements to appear in evidence, and so appearing, to came tho coun to ontenain an erroneous opinion rqarding the compromile.

Their offence came within the words of ss. 191/192 rather than a. 199 of Ille Indian Penal Code. (556 CJ

(ii) In respost of offences under ss. 191 and 192 of tho Indian Penal Code when committed by a witness action under s. 479-A alone can be taken and action under s. 476 is ruled out because of sub.,., (6) of

1. 479-A. [SS6 E..GJ

CRIMINAL APPELi.All! JUR1smcnoN : Criminal Appeal No. 74 of 1964.

Appeal from the judgment and order dated October 3, 1963 of the Patna High Court in Criminal Misc. Case No. 366of1956.

Naunit Lal, for the appellant.

The respondent did not appear.

The Judgment of the Court was delivered by Hldayatullah, J.-This is an appeal under s. 476-B of the Code of Criminal Procedure by one Baban Singh and his wife Dharichhan Kuer against a judgment and order of the High Court at Patna

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BABAN v. JAGDISH (Hldayatullah, !.) 553

ordering the Registrar to file a complaint against them under s. 199 of the Indian Penal Code for making false affidavits. The respondents are persons who had moved the High Court under s. 476 of the Code for the prosecution of the appellants in the following circumstances.

Jagdish Singh and Parmhans were appellants in F. A. 301 of 1952 in the High Court at Patna. Mst. Dharichhan Kuer was respondent No. 13 in that appeal. During the pendency of the appeal a compromise was said to have been arrived at between Dharichhan Kuer on the one hand and Jagdish Singh and Parmhans on the other. Dharichhan Kuer and Jagdish Singh swore an affidavit on June 22, 1953 in support of the petition for compromise which was filed in the High Court. Baban Singh's brother identified Dharichhan Kuer before the Oath Commissioner and Rs. 4,000 were paid to Dharichhan Kuer under the terms of the compromise in the Commissioner's presence. Dharichhan Kuer also passed a receipt and her thumb impression was identified by Baban Singh's brother. The petition of compromise was filed in court on July 13, 1953. The same day Baban Singh swore an affidavit (Ex. B) denying the compromise or that his wife had received Rs. 4,000.

This affidavit was filed in the High Court on July 31,

1953. On September 9, 1953 Dharichhan Kuer also filed an affidavit (Ex. A) in support of her husband.

As the compromise was in dispute the High Court ordered the Registrar to hold an enquiry. Nine witnesses were examined on behalf of Jagdish Singh and Parmhans including the Oath Commissioner. Dharichhan Kuer and her husband Baban Singh gave evidence on their own behalf. The Registrar reported on July 14, 1954 that the compromise was genuine and that Dharichhan Kuer had, in fact, sworn the affidavit before the Oath Commissioner and had received Rs. 4,000. B. N. Rai and Kanhaiya Singh, JJ. accepted the report by their order dated October 5, 1956. One of the terms of the rompromise was that if Dharichhan Kuer resiled from it the amount of Rs. 4,000 would be refunded with costs Rs. 500. Dharichhan Kuer deposited this amount in court on October 9, 1956. The first appeal was then heard and disposed of.

The application under s. 476 out of which this appeal has a, risen was filed during the pendency of the first appeal and was taken up for hearing after the appeal was disposed of. A question arose whether a c@mplaint for prosecution of Baban Singh and Dharichhan Kuer for an offence under s. 193, Indian Penal Code could be filed in the High Court because Baban Singh and Dharichhan Ku.er had deposed not before the court but before the Registrar. Further s. 479A (to which we shall refer presently) was introdueed from January l, 1956 and thus on October 5,

1956, when the High Court accepted the report of the Registrar, it was in force. The Divisional Bench did not consider taking action under s. 193 because of s. 479A and it appears that the counsel for Jagdish Singh and Parrnhans also conceded that no prosecution could take place under that section. The High Court, however, considered whether action should be taken in respect of the two affidavits (Exs. A and B). It is not necessary to refer to the statements in these affidavits because we are not considering whether they were true or false. It was contended before the High Court that a prosecution under s. 199 of the Indian Penal Code would be equally covered by s. 479A and as the procedure under that section was not followed an application for prosecution under s. 476 was barred. This contention was not accepted by the High Court and after going into the expediency of the prosecution the learned Judges ordered the Registrar of the High Court to file a complaint before the appropriate authority for the prosecution of the appellants. The appellants now appeal as of right under s. 4768.

At the hearing before us there was no representation on behalf of the respondents. Although notices were issued to Jagdish

Singh, Parrnhans and the State Government, none appeared.

On hearing the learned counsel for the appellants we are satisfied that tltis appeal must succeed. The short question in this case is whether s. 476 could at all be invoked because of the bar contained in s. 479A sub s. (6). The sixth sub-section, to which we have referred lays down that no proceedings shall be taken under ss. 476 to 479 (both 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 s. 479A. The point to decide, therefore, is whether proceedings under s. 479A could be taken against Baban Singh and his wife, for if they could be, then action ought to have been taken under that section and s. 476 cannot be invoked. Section 479A, in so far as it is relevant to our purpose, provides as follows :-

"479-A. Procedure in certain cases of false evidence.-

( I) Notwithstanding anything contained in section 476 to 479 inclusive, when any Civil, Revenue or Criminal G Court is of opinion that any person appearing !'efore it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence .for. he purpose. or being used in any stage of the 1ud1c1al prceedmg, and that for the eradication of the evils of perjury and H

fabricatin 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

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BABAN v. JAGDISH (Hidayatullah, J.) 555

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 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 the 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 : Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.

The learned Judges in the High Court did not take action in respect of the offence of giving false evidence on oath, as defined in s. 191 and punishable under s. 193 of the Indian Penal Code, because they were of the opinion thats. 479-A of the Code of Criminal Procedure would be applicable to that offence even though evidence was recorded by the Registrar. The High Court selected for action the offence in relation to the two affidavits holding that prima facie an offence under s. 199, Indian Penal Code was committed.

That offence is also punishable in the same manner as if false evidence was given. The difference between ss. 191 and 199 is this; Section 191 deals with statements and declarations falsely made by a person legally bound by an oath or by an express provision of law to state the truth. Section 199 deals with statements and declarations made voluntarily provided they are capable of being -used as evidence and which the court is bound to receive as evidence.

The matter has to be considered from three standpoints. Does the swearing of the false affidavits amount to an offence under s. 199, Indian Penal Code or under either s. 191 or 192, Indian Penal Code ? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath.

The only condition necessary is that the declaration must be capable of being used as evidence and which any court of justice or any public servant or other person, is bound or authorised by law to receive as evidence. Section 191 deals with evidence on oath and

s. 192 with fabricating false evidence. If we consider this matter from the standpoint of s. 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the truth because an affidavit is a declaration made under an oath.

The definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within s. 192. It lays down inter a/ia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may caus~ any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. When Baban Singh and Dharichhan Kuer made declarations in their affidavits which were tendered in the High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing, to cause the court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of ss. 191/192 rather than s. 199 of the Indian Penal Code. They were thus prima facie guilty of an offence of giving false evidence or of fabricating false evidence for the purpose of being used in a jadicial proceeding.

Section 479-A lays down a special procedure which applies to persons who appear as witnesses before civil, revenue or criminal courts and do one of two things : (i) intentionally give false evidence in any stage of the judicial proceeding or (ii) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceeding. The first refers to an offence under s. 191/193 and the second to that under s. 192/193 of the Indian Penal Code. In respect of such offences when committed by a witness, action under s. 479-A alone can be taken. The appellants were witnesses in the inquiry in the High Court and they had fabricated false evidence. If any prosecution was to be started against them the High Court ought to have followed the procedure under s. 479-A of the Code of Criminal Procedure. Not having done so, the action under s. 476 of the Code of Criminal Procedure was

not open because of sub-s. ( 6) of s. 479-A and the order under appeal cannot be allowed to stand.

In the result tho appeal succeeds and is allowed. The order for the prosecution of the appellants is set aside. The complaint, if filed, shall be withdrawn.

Appeal allowed.

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