BIBEKANANDA BHOWAL Vs. SONTOSH MOHAN DEV

JUDGEMENT

(1.) On 20-7-1973 plaintiff filed a petition under sections 476 and 479A Cr.P.C. 1898 (for short old Code) in the court of learned District Judge, Cachar, Silchar, before whom Title Suit No.5/72 instituted by him was pending. By the said petition the plaintiff prayed that after perusing the evidence recorded in the suit of the 1st defendant (DW.4) Shri S.M. Dev and DW.2, Shri Indrajit Dutta Choudhury, and after holding a preliminary inquiry, a complaint be made in the appropriate court against them u/ss.193/465/467/471 IPC. On 23-7-1973 1st defendant (DW.4) filed an objection against this application. Arguments were advanced by both sides on this aspect also on the date fixed for argument in the main suit and the application was rejected by the trial court while disposing of the suit by its judgment and order passed in the case on 31-7-1973 by which it decreed in full the plaintiffs suit. The present appeal u/s.476B of the old Code read with Art.227 of the Constitution was filed in this Court on 30-8-1973 against the findings and order recorded in the said judgment in respect of rejection of plaintiffs (herein appellant's) application u/s.476/479A of the old Code.

(2.) Before considering the merits of the appeal we have thought it appropriate to deal first with respondents' contention challenging the maintainability of the appeal in this Court. Because, in our opinion, this contention has sufficient force and the respondents' preliminary objection must prevail. Chapter XXXV of the old Code is captioned "proceedings in case of certain offences affecting the administration of justice" and spans across the group of sections 476 to 487. By Act No.26 of 1955 sections 479A was inserted in this chapter to deal with "procedure in certain cases of false evidence", as is indicated by the marginal note. We may read the relevant parts of this new provision : Sec.479A(1) - Notwithstanding anything contained in sections 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interest of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so, thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate. (Proviso and Explanation omitted as not relevant). Sub-sec.(3) - No appeal shall lie from any finding recorded and complaint made under sub-section (1). By sub-sec.(4) appellate court, in a case where an appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen, has been given the power to direct withdrawal of the complaint where in any case a complaint has been made under sub-sec.(1) while such court has also been empowered under sub-sec.(5) to make a complaint in the same matter if no complaint has been made by the trial court under sub-sec.(1). According to sub-sec.(6) proceedings under sections 476 to 479 are barred in cases in which the person concerned may be proceeded u/s.479 A. We may also in this connection note the provisions of S.476B which contemplates that in the case of an order passed u/s.476 or 476A either making a complaint or refusing to make a complaint an appeal may be preferred by the aggrieved person.

(3.) Before we explore the legal contour of the objection we may briefly refer to the relevant findings of the trial court on the basis of which he had rejected the appellant's application. It was alleged in the application that Exts. BB and HH which were proved by DWs.2 and 4 were manufactured for the purpose of the suit and that the two witnesses, had collusively forged these documents and had used the same as genuine documents intentionally and dishonestly to support defendants' case. The trial court held that though Exts. BB and HH were forged, manufactured and spurious documents yet from the facts and circumstances the possibility that certified copy Ext. HH was supplied by the Silchar Municipal Board on realisation of requisite costs from defendant No.1 could not be ruled out. Learned District Judge also observed that the Silchar Municipal Board on being summoned by the court to produce the original of Ext. HH, had caused the production of Ext. BB and further that the 1st defendant should not normally have any hand in the matter of preparation of the certified copy of Ext. HH or in the matter of manufacturing fabricated document, Ext. BB. He further held, "there is no positive conclusive evidence on record to establish that defendant No.1 (DW.4) and defendant No.2 in collusion forged and fabricated the aforesaid two manufactured and false documents for using them as genuine in the suit." On these findings he held that it was "not expedient" that they should be prosecuted for the alleged offence.