Shabir Hussein Bholu Vs. State of
Maharashtra  INSC 273 (28 September 1962)
IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 816 1963 SCR Supl. (1) 501
CITATOR INFO :
E 1964 SC 725 (9) E 1966 SC1863 (1,6) F 1968
SC1422 (4) RF 1973 SC2190 (5)
Criminal Trial-Perjury by
witnesses-Prosecution of-Order for prosecution made after conclusion of
trial-Legality of Committal proceedings-If a stage of Sessions trial-Code of
Criminal Procedure, 1898 (Act V of 1898), ss. 476 and 479-A.
The appellant appeared as a witness in a jury
trial for murder. Before the Court he gave a statement contradictory to the one
he had given before the committing court. After the conclusion of the trial and
delivery of judgment the Sessions judge passed a separate order for prosecution
of the appellant for intentionally giving false evidence.
Held, that the provisions of s. 479A had not
been complied with and no cognizance could be taken of the offence, Two
conditions were laid down for the exercise of the powers under s. 479A, (i) the
court must form an opinion that the person has committed one of the two
categories of offences referred to in s. 479A, and (ii) the Court must come to
the conclusion that for the eradication of the evils of perjury etc. and in the
interests of 502 justice it is expedient that the person be prosecuted. This
opinion and conclusion must be arrived at the time of the delivery of the
judgment or final order in the trial; the court cannot later on resort to s.
476 and make a complaint against the witnesses. The provisions of ss. 476 to
479 were totally excluded where the offence is of the kind specified in s.
479A, and if in such a case action is not taken under s. 479A no action can be
taken under ss. 476 to 479.
Purshotam, Lal v. Madan Lal, A. 1. R. (1959)
Punj. 145 and Amolak v. State, A. 1. R. (1961) Raj. 220, approved.
Durga Prasad Khosla v. State of U. P., A. 1.
R. 1959 All.
744, Lal Behari v. State,, A. I. R. 1962 All.
251, Jaibir Singh v. Malkhan Singh, A. I. R. (1958) All. 364 and State of
Bombay v. Premdas Sukritdas Gadhewal Koshti, A. 1. R.
1960 Bom. 483, disapproved.
Badullah v. State, A. 1. R. 1961 All. 397,
The provisions of s. 479A were applicable to the
present case. The fact that the trial was with the aid of a jury did not
preclude the Sessions Judge from recording the findings required by s. 479A.
While considering whether action should be taken under s. 479-A it was open to
the Sessions judge to say whether the evidence tendered at the trial was true
The committal proceedings are a stage in the
judicial proceedings before the Sessions Judge, and even if the statement made
by the appellant before the committing Court was false the Sessions judge could
take action under s. 479A.
CRIMINAL APPELLATE JURISDICTION. Criminal
Appeal No. 92 of 1961.
Appeal by special leave from the judgment and
order dated January 18, 1961, of the Bombay High Court in Cr. Revision
Application No. 91 of 1961 (by State) converted from Cr. A. No. 1131 of 1960.
Miss Kapila and Y. Kumar, for the appellant.
D. R. Prem, R. H. Dhebar and R. N. Sachthey,
1962. September 28. The judgment of the Court
was delivered by 503 MUDHOLKAR, J.-In this appeal by special leave from the
judgment of the Bombay High Court the question which-arises for consideration
is whether the Chief Presidency Magistrate, Bombay, could not take cognizance
of a complaint against the appellant for an offence under s. 193, Indian Penal
Code, because the Additional Sessions judge, Bombay, who filed that complaint
had failed to follow the procedure laid down in s. 479A of the Code of Criminal
The appellant was a witness for the
prosecution at the trial of one Rafique Ahmed before the Additional Sessions
judge, Greater Bombay, for offences of murder and abetment of murder, along
with two other persons. When the appellant had been examined as a witness
before the committing magistrate he deposed that in his presence Rafique Ahmed
had stabbed the deceased Chand while he was running away. When, however, he was
examined at the trial before the Court of Sessions three months later the
appellant stated that while he was standing on the threshold of his house he
saw Rafique Ahmed and his two associates coming from the direction of the
Muhammaden burial ground. According to him one of them had a dagger while the
others had only sticks with them.
He, however, did not see anything more
because, as his children were frightened, he closed the door and remained
inside. He disclaimed knowledge of what happened subsequently and in
cross-examination stated that it was not true that he actually saw Rafique
Ahmed stabbing the deceased.
In his charge to the jury the learned
Additional Sessions judge who tried the case has brought out the fact that the
appellant had made two widely divergent statements in regard to a certain part
of the incident. The jury, after considering the entire evidence, returned a
verdict of not guilty against Rafique Ahmed in respect of the offence under s.
302, I.P.C. but found him guilty under s. 304, first part.
504 It also found the other two accused
persons guilty under s. 304, first part, read with s. 109, I. P.C. After the
trial was over the learned Additional Sessions judge came to the conclusion
that proceedings should be taken against the appellant for intentionally giving
false evidence. He, therefore, recorded a separate order which runs thus::
"I direct that the Registrar, Sessions
Court for Greater Bombay should take necessary steps for prosecution of witness
Shabir Hussein Bholu for the offence of perjury in view of his deposition
before the Committing Magistrate and his deposition in this Court, both of
which are on oath but are at variance with each other".
In pursuance of this order a notice was
issued against the appellant requiring him to show cause why he should not be
prosecuted under s. 193, I.P.C. for making contradictory statements regarding
the same incident. In pursuance of that notice the appellant appeared before
the Additional Sessions Judge and his counsel submitted that the contradictory
statements were ascribable to the fact that the appellant was illiterate and
that his mind was in a state of confusion. These contentions were rejected by the
additional Sessions judge who made the notice absolute and ordered the
complaint to be filed. Accordingly a complaint was filed under his signature
before the Chief Presidency Magistrate, Bombay. The statements which were
regarded by him as contradictory were also set out in that complaint.
At the trial of the appellant before the
Chief Presidency Magistrate an objection was raised on his behalf that the
provisions of s. 479-A, Code of Criminal Procedure had not been complied with
by the Additional Sessions judge and that consequently the Chief Presidency
Magistrate could not take cognizance of the offence. The objection was upheld
by the Chief Presidency Magistrate and the appellant was ordered to be
discharged. The State preferred 505 an application for revision before the High
Court which granted that application, set aside the discharge of the appellant
and remanded the case for trial by the Chief Presidency Magistrate.
It may be mentioned that in its order the
High Court has observed that though the provisions of s. 479-A, Cr. P. C.
had not been complied with, it was still open
to the Chief Presidency Magistrate to take action on the complaint under ss.
476 to 479 of the Code of Criminal Procedure.
Chapter XXXV of the Code of Criminal
Procedure deals with "Proceedings in case of certain offences affecting
the administration of "justice". Section 476 (1) provides that when
any civil, revenue or criminal court is of opinion that it is expedient in the
interests of justice that an enquiry should be made into any offence referred
to in s. 195 (1), cl. (b) or (c) which appears to have been committed in or in
relation to a proceeding in that Court, such Court may, after such preliminary
inquiry, if any, if it thinks necessary, record a finding to that effect and
make a complaint thereof in writing signed by the presiding Officer of the
Court and forward it to a Magistrate of the first class having jurisdiction to
deal with the case. The offences referred to in cls. (b) and (c) of sub-s. (1)
of s. 195 are those under ss. 193, 194 to 196, 199, 200, 205 to 211, 228, 463/
471, 475 or 476, 1. P. C. By s. 89 of Act 26 of 1955, s. 479-A was added in ch.
XXXV of the Code of Criminal Procedure. The heading of that section is
"'Procedure in certain cases of false evidence". This section
provides that notwithstanding anything contained in ss. 476 to 479, inclusive,
when any Civil Revenue or Criminal Court is of opinion that any per-son
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 506 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 therefore and may, if it so thinks fit, after giving the witness an
opportunity of being heard, make a complaint thereof in writing and forward it
to a Magistrate of the first class having jurisdiction to deal with the offence.
Sub-section (6) of s. 479-A provides that no
proceedings shall be taken under ss. 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 s. 479-A. Thus bearing in mind the non
obstante clause at the commencement of s. 479-A and the provisions of sub-s.
(6), it would follow that only the provisions of subs. (1) of s. 479A must be
resorted to by the Court for the purpose of making a complaint against a person
for 'intentionally giving false evidence or for intentionally fabricating false
evidence at any stage of the proceeding before it. No doubt, Parliament when it
enacted s. 479-A did not amend cls. (b) and (c) of s. 195 (1) of the Code of
Criminal Procedure and s. 193, 1. P. C. which makes giving false evidence in a
judicial proceeding punishable, ss. 194 'and 195 which make giving or
fabricating false evidence with intent to procuring the conviction of a person
for committing certain offences punishable and s. 463 and s.
467 which deal. with offences of forgery and
using forged documents as genuine, are still to be found in cls. (b) and (c) of
sub-s. (1) of s.195, Cr. P.C. In view of this, Mr. Prem who appears for the
State contended that Parliament by not amending s. 195(1), cls. (b) and (c) has
made it clear that the procedure to be followed in s. 479-.A is only an
alternative procedure to be followed in what he calls "flagrant
cases". In support of his argument he has relied 507 on the decision in
Durga, Prasad Khosla v. The State of U. P.(1). In that case it was held that
s.479-A was enacted to give additional power to the Court authorising it to
deal speedily with the more flagrant or serious cases of intentionally giving
false evidence or intentionally fabricating evidence in judicial proceedings.
It was also held there that the intention of Parliament in enacting s.
479-A was to deal with offences of' perjury
of a more serious type and that less serious type of offences which cannot be
brought under the new provision will, therefore, have to be dealt with under s.
476 of the Code of Criminal Procedure. The Court, therefore, took the view that
s. 479A, Cr.P.C. has not impliedly repealed s. 476 of the Code in respect of
all cases of witnesses giving or fabricating false evidence in judicial
proceedings and so the provisions of s. 476 of the Code are still available for
proceeding against witnesses whose cases cannot be brought under s. 479 A for
one reason or another. He also referred to the decision in Lal Behari v.
State(2) where the same view was taken. The learned judges who decided the case
dissented from the view taken in Jaibir Singh' v. Malkhan Singh(3) to the
effect that s. 479-A was a complete code in itself for dealing with all offences
which fall within its ambit.
Learned counsel further relied on the
decision in Badullah v. State(4) where it was held that the provisions of ss.
476 and 479-A are not co-extensive and s. 479-A was added in ch. XXXV with the
intention of arming the Courts with another weapon with which to deal with the
growing evil of perjury in a more effective manner. It may be mentioned,
however, that in this case the question which arose for consideration was
whether a Court was required to proceed against a witness under s. 479-A where
the evidence given by him before that Court was contradictory to the evidence
given by that witness in a previous but separate judicial proceeding.
As we shall show presently, this case is
distinguishable from the one (1) A.I.R. (1959) All. 744 (3) A.I.R. (1959) All.
(2) A.I.R. (1962) All. 251. (4) A.I.R. (1961)
508 before us. Learned counsel then referred
to the decision in state of Bombay v. Premdas Sukritdas Chadhewal Koshti(1) in
which it was held that s. 479-A does not contain an exhaustive and
self-contained procedure relating to all classes of perjury but only applies to
a case where the Court acts suo motu at the time of declaring its judgment and
records a finding that a person appearing before it as a witness had
intentionally given false evidence or has intentionally fabricated false
According to the court, while s. 479-A
applies only to certain kinds of cases of giving false evidence, namely,
serious, flagrant and patent cases of perjury where the judge records a finding
under s. 479-A(1) and that s. 476 applies to all other cases of false evidence
where the judge has not recorded a finding under s. 479-(1). The conclusion
arrived at by the Court was that sub-s. (6) of s. 479-A does not exclude cases
of perjury from the operation of' ss. 476 to 479. On behalf of the appellant
reliance was placed before us on the decisions in Parshotam, Lal v. Madan
Lal(2) where it was held that the provisions of s. 479-A override the
provisions of ss. 476 to 479 in so far as they relate to the giving of false
evidence or fabricating false evidence by a person who gives evidence during
the course of the judicial proceedings. It was pointed out in this case that
this section was enacted for enabling the courts to deal with the specified
offences more expeditiously and effectively and that the provisions were meant
to be fair to both sides, that is, to bring a Criminal to book promptly and not
to harass him after a long time. Reliance was also placed on the decision in
Amolak v. State(3) where more or less the same view was taken and it was
further pointed out that where a case is of a class which falls squarely within
the ambit of s. 479-A(1) of the Code, the provisions of s.
476 to s. 479 are inapplicable.
(1) A. I. R. (1960) Bom. 483.
(2) A. I. R. (1959) Punjab 145.
(3) A. I. R. (1961) Raj. 220.
509 We cannot, said Miss Kapila, ignore the
opening words of s. 479-A or the provisions of sub-s. (6) of, s. 479-A. The
inevitable effect of these provisions is to exclude the provisions of ss. 476
to 479 in respect of offences which are dealt with specifically in sub-s.(1).
Restricting ourselves to a case where the offence consists of intentionally
giving false evidence "in any stage of judicial proceeding" it is no
doubt true that as under s.
476 it is the Court which disposes of such
judicial proceeding which primarily has to act under s. 479-A. There does not
appear to be any real distinction between s. 476 and s. 479-A as to the Court
which can take action. Under s. 476 the action may proceed suo motu or on
application while under s. 479-A no application seems to be contemplated. But
there is nothing in this provision which makes a distinction between flagrant
offences and offences which are not flagrant or between serious offences and
offences which are not serious. For exercising the powers conferred by this
section, the Court has in the first instance, to form an opinion that the
person against whom complaint is to be lodged has committed one of the two
categories of offences referred to therein. The second condition is that the
Court has come to the conclusion that for the eradication of the evils of
perjury and fabrication of false evidence and in the interests of justice it is
expedient that a witness should be prosecuted for an offence which appears to
have been committed by him. Having laid down these conditions, s. 479-A
prescribes the procedure to be followed by the Court. If the Court does not
form an opinion that the witness has given intentionally false evidence or
intentionally fabricated false evidence no question of making a complaint can
Similarly, where the Court has formed an
opinion that though the witness has intentionally given false evidence or
intentionally fabricated false evidence the nature of the perjury or
fabrication committed by him is not such as to make it expedient in the
interests of justice to make a complaint it has a 510 discretion not to make a
complaint. But it does not follow from this that it can later oil resort to s.
476 and make a complaint against the witness. For, even under s. 476 the Court
must, before making a complaint, be satisfied that it was. expedient in the
interests of justice to make an enquiry into the offence committed by the
witness. It could not be urged ,that where the Court willfully refuses to
record at the time of delivering the judgment or final order disposing of the
proceedings before it that for the eradication of the evil of perjury and in
the interests of justice it was expedient that the witness should be prosecuted
for the offence which appears to have been committed by him it Could later
resort to the provisions of s. 476.
The position must be the same where it falls
to take action though it is open to it to do so. It is not as if, as the
learned counsel for the respondent suggests that the Court has an option to. Proceed
tinder either s. 479-A or under s. 476 and that if it does not take action
under s. 479-A it can do so under s. 476. The jurisdictions of the Court to
make a complaint against a person arises only from the fact that that person
has given false evidence or fabricated false evidence at any stage of the
proceeding disposed of by it. The conditions required to be fulfilled by the
Court and the procedure to be followed by it for the purpose of exercising its
jurisdiction and making a complaint are not to be equated with the conditions
which give the court jurisdiction to make a complaint. From this it would
follow that whereas s. 476 is a general provision dealing with the procedure to
be followed in respect of a variety of offences affecting the administration of
justice in so far as certain offences falling under ss. 193 to 195 and s. 471,
1. P. C.
are concerned the Court before which that
person has appeared as a witness and which disposed of the case can alone make
In our opinion, therefore, the view taken in
the decisions relied upon by Mr. Prem is not correct and 511 that the view
taken in Parshotam Lal's case(1) and Amolak's case(2) to the effect that the
provisions of ss. 476 to 479 are totally excluded where an offence is of the
kind specified in s. 479-A (1) is correct.
Mr. Prem then contended that there are two
reasons why the provisions of s. 479-A, Cr. P.C. would not apply to the case
before us. The first reason, according to him, is that the trial was held by
the Additional Sessions judge with the aid of jury and that consequently there
can be no opportunity to the Additional Sessions judge to record in his
judgment a finding of the kind required by s. 479-A (1) and give his reasons
for that finding. The second ground is that the complaint made by the
Additional Sessions judge mentions that contradictory statements were made in
the case, one before him and a different one before the Committing Magistrate.
Where such is the case the only provision, according to Mr. Prem, under which a
complaint could be lodged is that contained in s. 476, Cr. P.C.
As regards the first point it has to be borne
in mind that though it is for the jury to give its verdict regarding the guilt
or the innocence of the accused it is open to the Judge to accept or reject the
verdict and, therefore, it is necessary for him to record a short judgment
either accepting or rejecting the verdict. Where he rejects the verdict the law
requires him to refer the case to the High Court under s. 307, Cr. P.C. In
either case he gets an opportunity of recording the kind of finding which is
required by s. 479-A In so far as the second contention is concerned reliance
is placed by Mr. Prem on Badullah's case (3). There, as already stated, it was
held that when contradictory statements are made in two different proceedings
it cannot be predicated with certainty that the statement made in one of
them..is false (1) A. I. R. (1959) Punjab 145. (2) A. I. R. (1961) Punj.
(3) A. I. R. (1961) All. 397.
512 unless of course there is sufficient
material before the Court to come to a conclusion that the statement made
before it is false so as to attract the application of s. 479-A.
It is also held there that when the Court is
inclined to the opinion that the statement made in the previous several
judicial proceeding is false and the statement made before itself is likely to
be true, the Court has no power to proceed under s. 479-A. In his charge to the
jury the learned Additional Sessions judge placed before them the evidence
given by the appellant at the trial and also the evidence of the appellant
before the Committing Magistrate and asked them to decide whether to accept one
or the other of the testimonies given by the appellant or whether to reject
both. He also asked them to consider whether the reference made by the
appellant to Chand, before the Committing Magistrate, was really to the
deceased Abu Kana.
The jury, as already stated, returned the
verdict of guilty under s. 304, Part 1. of course, it cannot be said that the
jury in arriving at the verdict placed reliance upon the evidence of the
appellant tendered before the Court or rejected it. But it was open to the
learned Additional Sessions judge, after having accepted the verdict to say
whether the evidence tendered at the trial was true or false. He has not chosen
to do so. But, for considering the applicability of s. 479-A(1) what has to be
borne in mind is that in a jury trial it is possible for the judge to come to a
conclusion that the statement made at the trial is false. If he comes to that
conclusion then, as rightly observed in Badullah's case, (1), he has no option
but to proceed under s. 479-A(1), Cr. P. C. The question then is whether he
could act, under this provision if he is unable to form an opinion one way or
the other as to whether the evidence tendered at the trial is false or the
evidence before the committing Magistrate is false. What would be the position
in such a case ? If the proceedings before the committing Magistrate must be
held to be entirely (1) A. I. R. (1961) All 397, 513 separate proceedings then
we agree with the Allahabad High Court that s. 479-A(1) would not apply. Could
that be said about evidence given at the committal stage ? Now, s. 479A(1)
speaks of false evidence given "in any stage of the judicial
proceeding." The committal proceedings are a stage of the judicial
proceedings before the Sessions judge. It seems to us therefore that where
false evidence is given before the Committing Magistrate by a person who was
later examined at the trial, the evidence given by him before the Committing
Magistrate cannot properly be said to have been given in an independent
proceeding. The scheme of the Code is that before a person is tried for a grave
offence by a Court of Sessions an enquiry is to be made by a Magistrate for
finding out whether there is a prima facie case against the accused and if he
find that there is such a prima facie case to frame a charge against that
person and commit him for trial before the Court of Sessions. No doubt, the
evidence recorded before the Committing Magistrate is not deemed to be evidence
recorded at the trial but the fact remains that the evidence recorded by the
Committing Magistrate can be transferred in certain circumstances to the record
of the trial and taken into consideration in the same way in which evidence
tendered at the trial can be taken into consideration. In view of these
features which characterise the commitment proceedings we are of opinion that
those proceedings can be regarded as part of the same judicial proceeding which
culminated in the decision of the court of Sessions. Upon that view it would
follow that even when the Sessions judge is unable to say which of the two
contradictory statements is false or even where he is of opinion that the
statement before the Committing Magistrate is false it is for him and him alone
to act under s. 479A(1). We, therefore., reject both the aforesaid contentions
of Mr. Prem.
For these reasons we hold that the learned
Chief Presidency Magistrate was right in discharging the 514 appellant and that
the High Court was in error in setting aside the order of discharge and
directing the Chief Presidency Magistrate to proceed on the basis that the
complaint was made after following the procedure laid down in ss. 476 to s.479,
Code of Criminal Procedure.