KUPPA GOUNDAN Vs. M S P RAJESH

JUDGEMENT

(1.) The 2nd petitioner Kuppuswami lodged a complaint with Yercaud Police on October 12, 1963, alleging that the respondent, Mr. M. S. P. Rajesh and other persons had formed an unlawful assembly and committed offences of house trespass, mischief and causing hurt at 10 p.m. 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. S. P. Rajesh but filed a charge-sheet against 4 other persons under Ss. 323, 325 and 448, Indian Penal Code in C. C. No. 3097/1963 in the Court of Sub-Magistrate 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 P. W. 1 and 2nd petitioner as P. W. 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 S. 476 (1), Criminal Procedure Code alleging that on October 11, 1963, he along with certain other Directors had attended a meeting of the Board of Directors of Chembra Peak Estate Ltd. from 4-30 p.m. to 5-15 p.m. 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 S. 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 page No. Ws. 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 S. 193, Indian Penal Code and accordingly filled a complaint against the petitioners under S. 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 S. 479-A, Criminal Procedure Code and it was therefore not open to the Magistrate to take recourse to the provisions of S. 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 Shabir Hussein Bholu vs. State of Maharashtra, (1963) 1 Suppl. SCR 501. Thereupon the respondent filed Criminal R. C. No. 1261 of 1964 in the Madras High Court against the order of the District Magistrate (Judicial), Salem. By his judgment, dated December 9, 1965, Anantanarayanan, J. set aside the order 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.

(2.) This appeal is brought, by special leave, from the order of the Madras High Court, dated December 9, 1965, in Cri. R. C. No. 1261 of 1964.

(3.) The question of law arising in this case is-what is the true meaning and scope of S. 476, Criminal Procedure Code in the context of S. 479-A (1) and (6), Criminal Procedure Code with regard to a prosecution authorised by a Court in respect of an offence of perjury committed before it in the course of the trial