UCHHABANANDA SAMANTARAY Vs. KRISHNA KUMAR BASU AND ORS.

JUDGEMENT

(1.) THE Petitioner filed an application on 9 -8 -1962 in the Court of the First Additional Subordinate Judge, Cuttack praying therein for making necessary inquiry under Section 476, Code of Criminal Procedure and filing a complaint. The facts alleged in the petition were that the opposite party Krishna Kumar Basu filed Money Suit no. 156 of 1954 against the Petitioner in the Court of the First Munsif, Cuttack, in the name of his wife Srimati Sovana Basu for recovery of money due on a handnote alleged to have been executed by the Petitioner on 2 -7 -1951 in her favour. That suit was ultimately tried by the learned Additional Subordinate Judge. Judgment was delivered on 23 -8 -1957. The Petitioner asserted that in the judgment there was a finding that the hand note had been forged by the opposite party to maintain a false claim against the Petitioner and that the opposite party intentionally forged and fabricated the said hand note for the purpose of being used in a judicial proceeding, and in fact he utilised it in M. S. no. 256 of 1954. The suit had been disposed of by Sri B.K. Misra, First Additional Subordinate Judge. The application under Section 476, Code of Criminal Procedure was dismissed by Sri L.N. Samant, First Additional Subordinate Judge, on 7 -1 -1963 on the finding that the offences, alleged to have been committed by the opposite party, come within the scope of Section 479 -A, Code of Criminal Procedure, and as his predecessor did not think it proper to proceed against the opposite party, the application under Section 476, Code of Criminal Procedure is not maintainable. Against this order the criminal revision has been filed.

(2.) ON 12 -7 -1963 the Petitioner filed an application with a prayer that Srimati Sovana Basu, wire of Sri Krishna Kumar Basu and Sri Nagendranath Roy, the Gumasta of the opposite party, be impleaded as opposite parties in the criminal revision as the suit had been filed by Srimati Sovana Basu and the handnote, marked ext. 4/30 in the suit, was typed by Nagendranath Roy. This application was allowed by this Court on 19 -7 -1963 and they have been added as opposite parties. Mr. Madhabananda Das concedes that the revision is not maintainable against these two persons as they were not added as opposite parties in the trial Court. Mr. Das contends that the application under Section 476, Code of Criminal Procedure is maintainable and the view taken by the learned Additional Subordinate Judge is erroneous.

(3.) I have already said that the offences alleged to have been committed by Sri Krishna Kumar Basu directly come within the mischief of offences referred to in Section 479 -A(1), Code of Criminal Procedure. The non -obstante clause "notwithstanding any thing contained in Section 476 to 479 inclusive" in Sub -section (1), and Sub -section (6) prescribing "no proceeding shall be taken under Sections 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 this section", make it clear that in respect of offences referred to in Section 479 -A(1), proceedings under Sections 476 to 479 are wholly excluded where an offence is of the kind specified in Section 479A(1). This view is also now well settled : : A.I.R. 1963 S.C. 816.