SANT BILAS SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an appeal under section 476-B, Criminal Procedure Code filed by Sant Bilas Singh a retired State Bank employee for directing withdrawal of the complaint which the Second Additional Subordinate Judge, Arrah made on 3rd May, 1972 before the Subdivisional Magistrate, Sadar, Arrah against him in respect of offences under sections 193 and 199 of the Indian Penal Code for swearing a false affidavit (Ext. 5) on 8th July, 1969 in relation to a service report (Ext. 4) of a peon (Since dead) in Execution Case No. 2 of 1969. Cognizance was taken on 8th May, 1972.

(2.) The short facts are these : The appellant and his sons filed title Suit No. 49 of 1962 for partition. The suit was decreed. The appellant levied execution, the same being Execution Case No. 2 of 1969. In that case the notices under Order XXI, rule 2 of the Code of Civil Procedure were served on 16th June, on the defendants including Baleshwar Singh (D. 9), Mayanand Singh (D. 8) and Nand Kumar Singh (D. 6). That service of notice was proved by the appellant Sant Bilas Singh by swearing an affidavit before the sheristedar of the Civil Court, Arrah on 22 July 1969. Defendant no. 4 Surendra Singh filed a petition under section 476 of the Code of Criminal Procedure before the executing court, namely Second Additional Subordinate Judge, Arrah complaining that the appellant Sant Bilas Singh had brought the service peon in collusion and got a false service report made on three judgment-debtors namely, Baleshwar Singh, Mayanand Singh and Nand Kumar Singh (D. 9, '8 and 6 respectively) saying that on 16th June, 1969 the date of service, defendant Baleshwar Singh was in service as a constable in R.P.F. at Howrah and was not at home and that Mayanand Singh and Nand Kumar Singh were at their farm village at Mauza Dhurgaon in the district of Saharsa and they also were not at their village home and so the appellants should be prosecuted under sections 193 and 199 of the Indian Penal Code for swearing a false affidavit supporting the false report of the serving peon. An inquiry under section 476 of the Code of Criminal Procedure was held and both sides led evidence for and against. The Second Additional Subordinate Judge by his order dated 27th November 1971 held that prima facie the affidavit was false and hence a complaint be made against the appellant for offence under sections 193 and 199 of the Indian Penal Code. It seems that nothing was said about the serving peon because he was dead. In pursuance of this order a complaint was made by him on 3rd May, 1972 as aforesaid.

(3.) Mr. Kailash Roy appearing for the appellant has argued that on the facts of this case it should be held that chances or prospects of conviction are very remote and that it will not be expedient in the interests, of justice to maintain the prosecution of the appellant.