A. HYDAR SAHEB Vs. STATE

JUDGEMENT

(1.) I think these revision petitions should be allowed. The petitioners figured as witnesses in C.C. No. 2044 of 1952 before the Sub Magistrate of Kadiri, On account of change of Magistrates, there was a de novo trial in that case. In the first trial the petitioners were examined as P.Ws. 5 and 2 on 28/2/1953. At the de novo trial, they were examined as P.Ws. 7 and 6 on 14/5/1954 i.e. more than one year and 2 months later. In their subsequent depositions in regard to some facts material to the prosecution, they stated that they were unable to remember whether they had made earlier statements of a particular character. The present applications were presented by the Additional Assistant Public Prosecutor, Dharmavaram for the filing of complaints against the petitioners under Sec. 476 Cr.P.C. for offences under Sec. 193 I.P.C. The trial Magistrate dismissed the petition, but on appeal the learned District Magistrate, Gooty reversed his order and directed the filing of complaints.

(2.) It has to be observed that the petitions filed by the Additional Assistant Public Prosecutor mention the alleged contradictions in paragraphs 2, 3 and 4. The contradictions lie only in the petitioners having said that they do not remember what they had said in the earlier trial. The learned Appellate Magistrate observes that the petitioners had no business to go back upon their prior depositions when their attention was drawn to them, and the fact that they still persisted in saying that they did not remember or recollect even after having been shown those prior depositions shows that they perjured themselves with a view to help the accused in the case. I cannot agree with the learned District Magistrate that the mere failure to recollect a former statement made involves one in the offence of perjury. Further, it seems to me quite inexpedient that the petitioners should be tried for perjury so long after the alleged offence, It has to be observed also that the petitions in the lower court presented by the Additional Assistant Public Prosecutor were dtd. 25/9/1954, nearly three months after the judgment in the case was pronounced. It seems to me that there was inordinate delay in drawing the attention of the Court to the necessity of filing a complaint, and especially by the date of the appellate order, it was nearly 7 months after the last deposition. It has been held in the decision of a Full Bench of 5 Judges reported in Aiydkannu Pillai v. Emperor, I.L.R. 32 Mad. 49 F.B. that the power conferred by Sec. 476 can be exercised by the Court only in the course of the judicial proceeding or at its conclusion or so shortly thereafter as to make it really the continuation of the same proceeding in the course of which the offence is committed. The delay in this case is considerably longer than what took place in that decision. There was only a delay of 21 days in that case. But still the majority of the Full Bench held that the power could not be properly exercised after such delay. I am, therefore clearly of opinion that the order of the appellate Magistrate is wrong.

(3.) I therefore allow these criminal revision cases and set aside the order of the District Magistrate, Gooty directing the filing of complaints against the present petitioners under Sec. 476-B. Cr.P.C. If the complaints have already been filed, they shall be withdrawn.