VISHAN SINGH Vs. BHAGWAN SWARUP

JUDGEMENT

(1.) THIS is a revision petition against the order of the learned Sessions Judge, Jodhpur dated 3rd January, 1961 rejecting the petitioner's revision against the order of the City Magistrate Jodhpur dated 31st October, 1960 in issuing a notice under sec. 476 of the Code of Criminal Procedure to the petitioner to show cause why he should not be prosecuted under sec. 199 of the Indian Penal Code.

(2.) THE facts which have given rise to this application are that the petitioner and the opposite party had filed complaints against each other under S. 323 of the Indian P. C. which were pending in the court of Shri Gulabsingh Magistrate, Jodhpur (under training ). Petitioner submitted an application under sec. 528 (2) of the Code before the City and Sub Divisional Magistrate, Jodhpur for withdrawal of the case from the court of Shri Gulabsingh and supported the application with an affidavit. This application came for decision on 28th, July, 1960 and the learned Sub Divisional Magistrate passed the following order: - "28. 7. 1960. Counsel of the parties are present. Now as the Magistrate against whom this transfer application was made has been transferred to another place, the application has become infructuous. It is therefore, rejected. File. Orders passed. " On the next date i. e. , 29th July, 1960 the opposite party submitted an application before the Sub Divisional Magistrate that the petitioner had filed a false affidavit in support of his application and he should, therefore, be prosecuted under sec. 199 of the Indian Penal Code. THE learned Sub Divisional Magistrate issued a notice of the said application to the petitioner. THE petitioner appeared in the court of the City Magistrate and raised a preliminary objection that the court had no jurisdiction to issue such notice in view of the provisions of sec. 479a (6) of the Code as the court did not record an order as provided under sec. 479a (1) of the Code at the time of passing the final order disposing of the application under sec. 528 (2) of the Code of Criminal Procedure. THE relevant provisions of sec. 479a may be quoted here. "section 479 A (1 ). Notwithstanding anything contained in sec. 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 at any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used at any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests 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 presi ding 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: Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint. Section 479a (6 ). No proceedings shall be taken under sec. 476 to 479 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. " THE learned City Magistrate rejected the preliminary objection. THE petitioner then filed a revision application before the Sessions Judge, Jodhpur but without any success.