Baban Singh & ANR Vs. Jagdish
Singh & Ors  INSC 38 (8 February 1966)
08/02/1966 HIDAYATULLAH, M.
CITATION: 1967 AIR 68 1966 SCR (3) 552
F 1968 SC1422 (4)
Indian Penal Code, 1860, ss. 191, 192 and
199-Filing affidavit containing false statements before High Court Offence
under which section committed.
Code of Criminal Procedure, ss. 476 and
479-A(6)-Offenses by witnesses under ss. 191 and 192 Penal Code-S. 479-A
applies and action under s. 476 cannot be taken.
The appellants made affidavits in the High
Court denying receipt of money by way of compromise in a first appeal pending
before that Court. The High Court ordered the Registrar to hold an enquiry. The
Registrar after recording the evidence of the parties reported that the
appellants' denial of receipt of money was false. thereafter an application was
made to the High Court under s. 476 of the Code of Criminal Procedure which was
kept pending and taken up after the appeal was decided. The High Court held
that the offence committed by the appellants was one under s. 199 Indian Penal
Code and ordered the Registrar to file a complaint. The appellants came to this
Court under s. 476B.
The questions for consideration were; (1)
whether the offence committed by the appellants fell under s. 191 and 192 of
the Penal Code or under s. 199, and (2) whether proceedings under s. 479-A
could be taken against the appellants, for if they could be, then action ought
to have been taken under that section and s. 476 could not be invoked.
HELD : (i) When the appellants made
declarations in their affidavits which were tendered in the High Court to be
taken into consideration they intended the statements to appear in evidence,
and so appearing, to cause the court to entertain an erroneous opinion
regarding the compromise Their offence came within the words of ss. 191/192
rather than g. 199 of the Indian Penal Code. [556 C] (ii) In respect of
offenses under ss. 191 and 192 of the Indian Penal Code when committed by a
witness action under s. 479-A alone can be taken and action under s. 476 is
ruled out because of sub-s. (6) of 9. 479-A. [556 E-G]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 74 of 1964.
Appeal from the judgment and order dated
October 3, 1963 of the Patna High Court in Criminal Misc. Case No. 366 of 1956.
Naunit Lal, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal under s. 476-B of the Code of Criminal
Procedure by one Baban Singh and his wife Dharichhan Kuer against a judgment
and order of the High Court at Patna 553 ordering the Registrar to file a
complaint against them under s. 199 of the Indian Penal Code for making false
affidavits. The respondents are persons who had moved the High Court under s.
476 of the Code for the prosecution of the appellants in the following
Jagdish Singh and Parmhans were appellants in
F. A. 301 of 1952 in the High Court at Patna. Mst. Dharichhan Kuer was
respondent No. 13 in that appeal. During the pendency of the appeal a
compromise was said to have been arrived at between Dharichhan Kuer on the one
hand and Jagdish Singh and Parmhans on the other. Dharichhan Kuer and Jagdish
Singh swore an affidavit on June 22, 1953 in support of the petition for
compromise which was filed in the High Court.
Baban Singh's brother identified Dharichhan
Kuer before the Oath Commissioner and Rs. 4,000 were paid to Dharichhan Kuer
under the terms of the compromise in the Commissioner's presence. Dharichhan
Kuer also passed a receipt and her thumb impression was identified by Baban
The petition of compromise was filed in court
on July 13, 1953. The same day Baban Singh swore an affidavit (Ex. B) denying
the compromise or that his wife had received Rs.
4,000. This affidavit was filed in the High
Court on July 31, 1953. On September 9, 1953 Dharichhan Kuer also filed an
affidavit (Ex. A) in support of her husband.
As the compromise was in dispute the High
Court ordered the Registrar to hold an enquiry. Nine witnesses were examined on
behalf of Jagdish Singh and Parmhans including the Oath Commissioner.
Dharichhan Kuer and her husband Baban Singh gave evidence on their own behalf.
The Registrar reported on July 14, 1954 that the compromise was genuine and
that Dharichhan Kuer had, in fact, sworn the affidavit before the Oath
Commissioner and had received Rs. 4,000. B. N. Rai and Kanhaiya Singh, JJ.
accepted the report by their order dated October 5, 1956. One of the terms of
the compromise was that if Dharichhan Kuer resiled from it the amount of Rs.
4,000 would be refunded with costs Rs. 500.
Dharichhan Kuer deposited this amount in court on October 9, 1956. The first
appeal was then heard and disposed of.
The application under s. 476 out of which
this appeal has arisen was filed during the pendency of the first appeal and
was taken up for hearing after the appeal was disposed of.
A question arose whether a complaint for
prosecution of Baban Singh and Dharichhan Kuer for an offence under s. 193, Indian
Penal Code could be filed in the High Court because Baban Singh and Dharichhan
Kuer had deposed not before the court but before the Registrar. Further s. 479A
(to which we shall refer presently) was introduced from January 1, 1956 and
thus on October 5, 554 1956, when the High Court accepted the report of the
Registrar, it was in force. The Divisional Bench did not consider taking action
under s. 193 because of s. 479A and it appears that the counsel for Jagdish
Singh and Parmhans also conceded that no prosecution could take place under that
section. The High Court however, considered whether action should be taken in
respect of the two affidavits (Exs. A and B). It is not necessary to refer to
the statements in these affidavits because we are not considering whether they
were true or false. It was contended before the High Court that a prosecution
under S. 199 of the Indian Penal Code would be equally covered by s. 479A and
as the procedure under that section was not followed an application for
prosecution under S. 476 was barred. This contention was not accepted by the
High Court and after going into the expediency of the prosecution the learned
Judges ordered the Registrar of the High Court to e a complaint before the
appropriate authority for the prosecution of the appellants. The appellants now
appeal as of right under s. 476B.
At the hearing before us there was no
representation on behalf of the respondents. Although notices were issued to
Jagdish Singh, Parmhans and the State Government, none appeared. On hearing the
learned counsel for the appellants we are satisfied that this appeal must
succeed. The short question in this case is whether S. 476 could at all be
invoked because of the bar contained in S. 479A sub S. (6).
The sixth sub-section, to which we have
referred lays down that no proceedings shall be taken under ss. 476 to 479
(both 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.
479A. The point to decide, therefore, is whether proceedings under s. 479A
could be taken against Baban Singh and his wife, for if they could be, then
action ought to have been taken under that section and s. 476 cannot be invoked.
Section 479A, in so far as it is relevant to our purpose, provides as follows :"479-A.
Procedure in certain cases of false evidence.(1) Notwithstanding anything
contained in section 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 interests of
justice, it is expedient that such witness should be prosecuted for the offence
which appears to have been 555 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 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 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.
The learned Judges in the High Court did not
take action in respect of the offence of giving false evidence on oath, as
defined in s. 191 and punishable under s. 193 of the Indian Penal
Code, because they were of the opinion that s. 479-A of the Code of Criminal
Procedure would be applicable to that offence even though evidence was recorded
by the Registrar. The High Court selected for action the offence in relation to
the two affidavits holding that prima facie an offence under s. 199, Indian
Penal Code was committed.
That offence is also punishable in the same
manner as if false evidence was given. The difference between ss. 191 and 199
is this; Section 191 deals with statements and declarations falsely made by a
person legally bound by an oath or by an express provision of law to state the
Section 199 deals with statements and
declarations made voluntarily provided they are capable of being used as
evidence and which the court is bound to receive as evidence.
The matter has to be considered from three
Does the swearing of the false affidavits
amount to an offence under s. 199, Indian Penal Code or under either s. 191 or
192, Indian Penal Code ? If it comes under the two latter sections, the
present prosecution cannot be sustained, Section 199 deals with a declaration
and does not state that the declaration must be on oath. The only condition
necessary is that the declaration must be capable of being used as evidence and
which any court of justice or any public servant or other person, is bound or
authorised by law to receive as evidence. Section 191 deals with evidence on oath
and 556 s. 192 with fabricating false evidence. If we consider this matter from
the standpoint of s. 191, Indian Penal Code the offence is constituted by
swearing falsely when one is bound by oath to state the truth because an
affidavit is a declaration made under an oath. The definition of the offence of
giving false evidence thus applies to the affidavits. The offence may also fall
within. 192. It lays ,down inter alia that a person is said to fabricate false
evidence if he makes a document containing a false statement intending that
such false statement may appear in evidence in a judicial proceeding and so
appearing in evidence may cause any person who, in such proceeding is to form
an opinion upon the evidence, to ,entertain an erroneous opinion touching any
point material to the result of such proceeding. When Baban Singh and
Dharichhan Kuer made declarations in their affidavits which were tendered in
the ,High Court to be taken into consideration, they intended the statements to
appear in evidence in a judicial proceeding, and so appearing, to cause the
court to entertain an erroneous opinion regarding the compromise. In this way
their offence came within the words of ss. 191/192 rather than S. 199 of the Indian
Penal Code. They were thus prima facie guilty of an offence of giving false
evidence or of fabricating false evidence for the purpose of being used in a
Section 479-A lays down a special procedure
which applies to persons who appear as witnesses before civil, revenue or
criminal ,courts and do one of two things : (i) intentionally give false
evidence in any stage of the judicial proceeding or (ii) intentionally
fabricate false evidence for the purpose of being used in any stage of the
judicial proceeding. The first refers to an offence under s. 191/193 and the
second to that under s. 192/193 of the Indian Penal Code. In respect of such
offenses when committed by a witness, action under s. 479-A alone can be taken.
The appellants were witnesses in the inquiry in the High Court and they had
fabricated false evidence. If any prosecution was to be started against them
the High Court ought to have followed the procedure under S. 479-A of the Code
of Criminal Procedure. Not having done so, the action under s. 476 of the Code
of Criminal Procedure was not open because of sub-s. (6) of s. 479-A and the
order under appeal cannot be allowed to stand.
In the result the appeal succeeds and is
allowed. The order for the prosecution of the appellants is set aside. The
complaint, if filed, shall be withdrawn.