GULAB CHAND Vs. HARI BUX

JUDGEMENT

(1.) THIS matter has come before me for decision of a preliminary objection.

(2.) HARIBUX son of Kundanmal of Kuchaman the opposite party, filed an appeal on 15-5-59 in this Court against the order of the District Judge, Merta setting aside his election. On the same date he filed an application for staying the operation of the order of" the District Judge and filed an affidavit in support of the stay application. In the affidavit he made a statement that he had not handed over the charge either as member or as Chairman of the Municipal 'board. The stay application was finally decided by Bapna, J. , on 6-8-1959. The appeal itself was decided on 7-10-1959. One Girdhari Lal originally submitted an application on 12-8-1959 requesting the Court to file a complaint against the respondent under Section 193 I. P. C. for giving a patently false statement in the affidavit. Subsequently Girdhari Lal put another application on 18-9-1959 stating that the previous application put in for prosecuting Haribux was filed on the basis of complete misapprehension and certain mis-interpretation of facts, and prayed that the application should not be treated to have been preferred by him and should be deemed as withdrawn. This application came before Dave, J. , on 29-9-1959. On that date another application on behalf of Gulab Chand was presented by Sri Guman Mal Advocate praying that the proceedings against Haribux should not be dropped and that he will continue the proceedings against the respondent. The application was not, however, supported by; an affidavit nor did it bear the signature of Gulab Chand. Dave, J. , however allowed the notice given to Haribux respondent to stand and directed that Gulab Chand should sign the application, filet a proper affidavit and lead evidence necessary for the purpose of inquiry. It appears that Gulab Chand signed the application and also filed go affidavit. When this application came up for hearing on 18-11-1959 before Bapna, J. , Dr. Singhvi on behalf of the respondent raised a preliminary objection that no proceedings can be taken now against his client after the decision of the appeal. The objection went further as it was urged that even no action could be taken after the decision of the stay application to which the affidavit, alleged to be false, was filed. The objection was based upon Section 479-A of the Criminal Procedure Code introduced by the Code of Criminal Procedure Act No. XXV of 1955. Section 479-A prescribes a special procedure for the filing of complaints by a Court in a case where a person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceedings or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceedings. Before filing a complaint the Court should be of the opinion 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 a witness should be prosecuted and Court must at the time of the delivery of the judgment or final order disposing of such proceeding record a finding to the effect stating its reason therefor The formation of an opinion and the recording of finding, in the above terms is a condition precedent to the filing of the complaint. Sub-section VI of Section 479-A provides that no proceedings shall be taken under Sections 476 to 479 Cr. P. C. inclusive for the prosecution of persons for fabricating false evidence, if in respect of such a person proceedings may be taken under this section. The respondent's objection is that this Court having expressed no opinion that for the eradication of evils and fabrication of false evidence and in the interest of justice the prosecution of Haribux is expedient no complaint Can be filed under Section 479-A and no complaint can be filed under Section 476 Cr. P. C. in view of the bar placed by Sub-section (6 ).

(3.) THE question is whether Section 479-A Cr. P. C. can be made applicable in connection with the filing of a complaint against Haribux. If Section 479-A Cr. P. C. is applicable the preliminary objection should succeed as the complaint cannot be filed on account of an omission to record the necessary finding and a complaint under Section 476 Cr. P. C. is also barred in view of the provisions of Sub-section (6 ). If on the other hand Section 479-A Cr. P. C. cannot be attracted to the facts of the present case a complaint under Section 476 Cr. P. C. cannot be barred. A decision about the applicability of Section 479-A Cr. P. C. must rest upon the proper interpretation of the expression "any person appearing before it (Court) as a witness". Dr. Singhvi's contention is that the expression should be widely and liberally construed and a person providing evidence by means of an affidavit should be treated as a person appearing as a witness. Elaborating his argument with reference to the term "appearing before Court" he submitted that the Oath Commissioner deserves to be treated as a Court within the definition of the word "court" as given in Section 3 of the Evidence Act. In other words, his contention is that a person appearing before an Oath Commissioner and appearing as a witness and giving evidence in a swearing an affidavit should be treated as a person appearing as a witness and giving evidence in a Court. I am wholly unable to accept this argument. In the first instance I am doubtful whether an Oath Commissioner can be treated as a Court within the definition of Section 3 of the Evidence Act, Even if it be so, the definition of "court" in the Evidence Act is only for the purposes of that Act and that definition cannot be imported for interpreting the provisions of the Criminal Procedure Code. The term "court" has not been defined either in the Criminal Procedure Code or in the Indian Penal Code but we find a term "court of justice" defined in Section 20 of the Indian Penal Code and the definition has been extended to Criminal Procedure Code by Section 4 (2 ). That term generally refers to a tribunal in which justice is judicially administered and which is empowered to arrive at an independent judicial decision on legal evidence. In view of the language and the context of Section 479-A the term "court" evidently refers to tribunal in the above sense.