IN RE: VIRUDAN Vs. STATE

JUDGEMENT

(1.) Petitioner has been convicted under Section 193 Indian Penal Code and sentenced to undergo rigorous imprisonment for nine months, by the Sub Divisional Magistrate, Tuticorin, and the conviction and sentence have been confirmed by the Sessions Judge, Tirunelveli.

(2.) The only point urged in this petition is that the petitioner was not given an opportunity of being heard before the complaint was preferred against him by the Sub Divisional Magistrate of Koilpatti under Section 479-A of the Criminal Procedure Code which ultimately resulted in his conviction. It is clear from, the decision in Muniamma In re, 330 that Section 479-A Criminal Procedure Code contemplates three steps: (a) the recording of a finding in terms of Sub-section (1) at the time of delivery of judgment or final order disposing of the, judicial proceeding in the course of which a witness has given false evidence; (b) the issue of the notice to the witness and giving him an opportunity of being heard; and (c) the making of a complaint in writing signed by the presiding officer of the Court setting fourth the evidence which, in the opinion of the Court, is false, and forwarding the case to a magistrate of the First Class having jurisdiction to try the case. The clause "may, if it so thinks fit" governs the clause "make a complaint thereof in writing". But if a Court wants to lay a complaint, it could do so only after giving the witness an opportunity of being heard. In fact Section 479-A Criminal Procedure Code as proposed by the Select Committee was passed in Parliament with an amendment providing that a witness, against whom the Court records a finding of perjury, shall be given an opportunity of being heard before a complaint is made against him. Further, under Clause (5) of Section 479-A even the appellate Court cannot lay a complaint without giving the person affected thereby an opportunity of being heard. It stands to reason that the trial Court also should give the same opportunity. A comparison of the several provisions of Section 479-A with Section 476 also makes the above interpretation clear. Admittedly, the petitioner was not given an opportunity of being heard before the complaint against him was preferred for giving false evidence. This is sufficient to invalidate the complaint,

(3.) The only remaining question to be considered is whether the conviction of the petitioner under Section 193 Indian Penal Code has to be set aside. If the petitioner had filed an appeal against the order preferring a complaint, it would be a good ground to set aside the order on the ground of presumed prejudice. But in this case the petitioner had an opportunity during the trial of the case for the offence of giving false evidence, and in that trial he has been convicted. The learned Public Prosecutor relied on Section 537 Criminal Procedure Code in support of his contention that as no prejudice has been caused to the petitioner, as indicated by the conviction of the petitioner under Section 193 Indian Penal Code, there is no ground to interfere in revision. In Chhadmilal Jain v. State of Uttar Pradesh , the Supreme Court has held that if the Court could presume prejudice to the accused by the, mere fact of the breach of a provision, the breach would obviously be not curable under Section 537 Criminal Procedure Code4It was a case of a committal without compliance with the provisions of Section 208 Criminal Procedure Code and the committal was set aside. It was pointed out that in that case that the stage of trial had not been reached and that no question, therefore, arose whether the trial had been conducted in a manner lifferent from that prescribed by the Code4The question dealt with in that case was whether on account of the breach of the provisions of Section 208, which had occurred in that case, prejudice would be presumed. It is doubtful whether the non-oropliance with the provisions of Section 207 Crilihal Procedure Code could have been availed of by the accused in that case, if the trial had gone in and ended in his conviction.