LAL BEHARI Vs. STATE

JUDGEMENT

(1.) The police of Mahmudabad, district Sitapur, submitted a charge sheet against Khunnoo Khan and thirteen others. One of the accused Puttoo-was acquitted by the judicial Officer, Sidhauli and the remaining twelve accused persons were acquitted on appeal by the learned Civil and Sessions Judge by judgment dated 6-2-1960. During the trial Lal Behari, the present applicant before us, was examined as a prosecution witness and he stated that Sheo Ram was not his cousin and that Sheo Ram's father Rani Bilas and Lal Behari's father Ram Prasad were not real brothers. It was submitted in an application under Section 476, Cri. P. C. by Khunnoo Khan that Lal Behari had intentionally given false evidence in the course of judicial proceedings to impress his independent character as a witness. The first application under Section 476, Criminal Procedure Code was preferred on 16-2-1960-Arguments were heard and the case was reserved for judgment. Then the learned Magistrate wanted to hear further arguments. These further arguments were also heard and a date was given for final orders. Then the learned counsel for Khunnoo Khan gave an application that he wanted time to place before the Court certain other rulings. 3rd of June 1960, was fixed in this application. On that date Khunnoo Khan was not present and no one argued the case on his behalf. The learned Magistrate dismissed the petition in default of prosecution. Khunnoo Khan filed a fresh application on 17-8-1960 submitting that he had fallen ill and had recovered only just in time to present this next application.

(2.) In the meantime, there had been a change in the presiding officer and the successor started proceedings under Section 476, Criminal Procedure Code. Finally a complaint was sent to the Additional District Magistrate (Judicial) Sitapur on (10-10-1960. Against that order an appeal was preferred under Section 476-B of the Code of Criminal Procedure. The appeal was dismissed by the learned Sessions Judge Sitapur by judgment dated 6-12-1960 and now Lal Bchari has come up in revision before this Court. The revision application came up for hearing before my brother Misra J. and he considered it 'desirable to refer the case to a Bench. We have heard the learned counsel for the petitioner as well as the learned counsel opposite.

(3.) The first contention of the learned counsel for the applicant is that the complaint under Section 476 is barred by the provisions of Section 479-A of the Code of Criminal Procedure. The argument as 1 understand it, is that Section 479-A of the Code of Criminal Procedure refers to all cases of perjury in judicial proceedings and Section 476 of the Code must be held to have been impliedly repealed when the Parliament enacted Section 479-A of the Code of Criminal Procedure. We have been referred to two cases of this Court and two cases of the other High Courts. The arguments of the learned counsel cannot be bettor put than in the words of our learned brother Sahai, J. who gave the decision in the case of Jai Bir Singh v. Mal-khan Singh, AIR 1958. All 364. It is not necessary for me to quote at length. The learned Judge however held: "These words are not meant to classify cases of perjury into two classes, one those where the perjury or the fabrication of false evidence has been detected by the court when the judgment is pronounced and the other where the perjury or fabrication of false evidence does not come to light till after the judgment has been pronounced." This reasoning appealed to the Punjab High Court and in the Division Bench case of Parshottam Lal v. Madan Lal Bashambar Das, AIR 1959 Punj 145 the learned Judges held: