Kuppa Goundan & ANR Vs. M.S.P.
Rajesh  INSC 121 (5 May 1966)
Criminal Procedure Code,1898 (Act 5 of
1898).s. 476-Trial concluded-Maintainability of the complaint for perjury.
At a trial, the appellants gave evidence against
the respondent. After the Conclusion of the trial the respondent filed a
petition in the court of the Magistrate under s. 476(1) Criminal Procedure
Code, praying for the prosecution of the appellants for giving false evidence
under s. 193 Indian Penal Code, and adduced evidence in support of his
contention. The Magistrate thought that in the interest of justice the,
appellants should be prosecuted and accordingly filed a complaint. The
appellants contended that the complaint was not maintainable because the trying
Magistrate had not followed the procedure under s. 479-A, Criminal Procedure
Code and it was therefore not open to the Magistrate to take recourse to the
provisions of s. 476.
HELD:-The prosecution of the appellants under
the provisions of s. 476 Criminal Procedure Code by the Magistrate after the
conclusion of the trial was legally valid and wag not affected by the bar of
cl. (6) of s. 479A. Criminal Procedure Code. [377G] The bar of cl. (6) will not
apply to a case where perjury is detected not merely with reference to the
evidence adduced at the trial but with reference to the evidence adduced in
some other distinct proceeding not then brought before the court or because
there is some other material subsequently produced after the conclusion of the
trial and delivery of judgment which renders the prosecution for perjury
essential in the interests of justice. [377 F] Shabir Hussein Bholu, v. State
of Maharashtra,  Supp.
I S.C.R. 501, explained and distinguished.
C.P. Kasi Thevar v. Chinniah Konar, A.I.R.
1960'Mad. 77 and In re Gnanamuthu A.I.R. 1964 Mad. 446, approved.
Jai Bir Singh v. Malkhan Singh. A.I.R. 1958
All. 364, Parsotam Lal Vir Bhan v. Madan Lal Bashambar Das, A.I.R.
1959 Punj. 145 and Amolak v. State. A.I.R.
1961 Rai. 220, disapproved.
CRIMINAL APPELLATE JURISDICTION:Criminal
Appeal No. 69 of 1966.
Appeal by special leave from the judgment and
order dated December 9, 1965 of the Madras High Court in Criminal Revision Case
No. 1261 of 1964 and Criminal Revision Petition No. 1235 of 1964.
R. Thiagarajan, for the appellants.
Purshottam Trikamdas and T. V. R. Tatachari,
for the respondent.
374 The Judgment of the Court was delivered
by Ramaswami, J. The 2nd petitioner Kuppuswami lodged a a complaint with
Yercaud Police on October 12, 1963 alleging that the respondent, M. S. P.
Rajesh and other persons had formed an unlawful assembly and committed offences
of house trespass, mischief and causing hurt at 10 p.m. on October 11, 1963.
The complaint was the subject-matter of investigation by the police who did not
present a chargesheet against respondent, M. S. P. Rajesh but filed a
charge-sheet against 4 other persons under ss. 323, 325 and 448, Indian Penal
Code in C.C. No. 3097/1963 in the Court of Sub-Magistrat3, Salem. The case was
tried by the SubMagistrate who ultimately acquitted all the accused by his
judgment dated December 13, 1963. In the course of evidence, at that trial the
1st petitioner was examined as P.W. 1 and 2nd petitioner as P.W. 2 and it is
alleged by the respondent that the petitioner gave false evidence to the effect
that the respondent was also among the trespassers and assailants and that he
was armed with a gun which another accused took from him. After the conclusion
of the trial the respondent filed a petition in the court of the Magistrate
under S. 476(1), Criminal Procedure Code alleging that on October 11, 1962 he
along with certain other Directors had attended a meeting of the Board of
Directors of Chembra Peak Estate Ltd. from 4.30 p.m. to 5.15 p.m. at Bangalore
and that he was not at Yercaud on October 11, 1963, and prayed for the
prosecution of the petitioners for giving false evidence under s. 193, Indian
Penal Code. The respondent produced a, copy of the Draft Minutes of the Board
meeting and also cited certain witnesses in support of his case. After
considering the matter, the Sub-Magistrate of Salem heldthat he was satisfied
that the respondent could not have been present at the alleged occurrence on
October 11, 1963 at Yercaud and that P.W.s 1 and 2 deliberately committed
perjury and implicated Mr. Rajesh as among the assailants. The Sub-Magistrate
thought that in the interest of justice the petitioners should be prosecuted
under S. 193, Indian Penal Code and accordingly filed a complaint against the
petitioners under S. 193, Indian Penal Code in the Court of District Magistrate
The petitioners contended, that the complaint
was not maintainable in law because the trying Magistrate had not followed the
procedure under s. 479-A, Criminal Procedure Code and it was therefore not open
to the Magistrate to take recourse to the provisions of S. 476, Criminal
Procedure Code. By his order dated February 10, 1964 the District Magistrate
discharged the petitioners holding that the complaint was not sustainable in
view of the decision of this Court in Shafer Hussain Bholu v. State of
Maharashtra(1). Thereupon the respondent filed Criminal.
R.C. No. 1261 of 1964 in the Madras High
Court against the order of the District Magistrate (Judicial), Salem. By his
375 judgment dated December 9, 1965 Anantanarayanan, J. set aside the orders of
the District Magistrate (Judicial) and directed that the case should be taken
up by the District Magistrate and the trial proceeded with in accordance with
This appeal is brought, by special leave,
from the order of the Madras High Court dated December 9, 1965 in Crl. R.C. No.
1261 of 1964.
The question of law arising in this case
is-what is the true meaning and scope of s. 476, Criminal Procedure Code in the
context of s. 479-A(1) and (6), Criminal Procedure Code with regard to a
prosecution authorised by a Court in respect of an offence of prejury committed
before it in the course of the trial? Chapter XXXV of the Code of Criminal
Procedure prescribes the procedure to be followed for prosecution of offenders
in case of certain offences affecting the administration of justice. Section
4/6 sets out the procedure for prosecution of offenders for offences enumerated
in s. 195(1)(b) and (c) of the Code of Criminal Procedure. If a 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)(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, as it thinks necessary, record a finding to that effect and make a
complaint thereof in writing and forward the same to a Magistrate of the first
class having jurisdiction. Section 476-A authorises a superior Court to make a
complaint where a Subordinate Court has omitted to do so in respect of offences
and in the circumstances mentioned in s. 476(1). Section 476-B provides for a
right of appeal against the order making or refusing to make a, complaint.
Sections, 478 and 479 deal with the procedure
which may be followed in certain grave cases. Section 479-A which was added by
the Code of Criminal Procedure (Amendment) Act 26 of 1955 by the first
sub-section (in so far as it is material) provides as follows.
"479-A. (1) Notwithstanding anything
contained in sections 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 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 37 6 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........................" Sub-section (6) of this
section enacts as follows:"(6) No proceedings shall be taken under
sections 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 scheme of s. 479-A is to enact a special
procedure for the more expeditious and effective manner of dealing with certain
cases of perjury and fabrication of false evidence by witnesses in the course
of judicial proceedings. There is, however, a necessary condition for the
application of s.
479-A, Criminal Procedure Code. The condition
is that the Court before it delivers its judgment or at any rate at the time of
delivering the judgment must form an opinion that a particular witness or
witnesses, is, or, are giving false evidence, if the court could not form any
opinion about the falsity of the evidence of the witness appearing before it,
then certainly the court cannot at the time of delivering its judgment, record
any finding about the same. It is manifest that a court can come to a
conclusion that a witness is false only when there are materials placed before
it to justify that opinion. If no materials are placed before the court to
enable the court to form an opinion that a witness is giving false evidence,
then certainly it could not form that opinion. In the present case, the
respondent produced material before the trial court on December 23, 1963 after
the conclusion of the trial that the petitioners had given false evidence in
the case and the respondent produced the necessary documents along with an
application for proceeding against the petitioners under s. 476, Criminal
Procedure Code. Till those documents were produced there was no opportunity or
occasion for the magistrate to form an opinion about the falsity of the
evidence adduced by the petitioners. It is, therefore, manifest that at the
time when the judgment was delivered the magistrate had no material before him
to form an opinion that the petitioners had given false evidence. It is only
after the respondent had made his application on December 23, 1963 and brought
the necessary material to the notice of the court that the falsity of the
evidence of the petitioners became apparent and the magistrate was in a
position to form an opinion about the falsity of the evidence given by the
It is, therefore, clear that s. 479-A will
not be applicable on the facts of this case, and if the provisions of s. 479-A
will not apply on the facts of this case it follows that the bar contemplated
by cl. (6) of that section will not be applicable. The reason is that cl. (6)
can be invoked only in cases in which 377 s.479-A(1) will be applicable. The
crucial words of cl. (6) are "if in respect of such a person proceedings
may be taken under this section". It is clear that the bar under s. 479-A
(6) refers not to the legal character of the offence per se but to the
possibility of action under s.
479-A upon the facts and circumstances of the
particular case. If, for instance, material is made available to the court
after the judgment had been pronounced, rendering it clearly beyond doubt that
a person had committed perjury during the trial and that material was simply
unavailable to the Court before or at the time of judgment, it is very
difficult to see how the court could have acted under s.
479-A, Criminal Procedure Code at all. It
cannot be supposed that the legislature contemplated that such a case of
perjury, however, gross should go unpunished in such circumstances. It appears
to us that the true interpretation of the language of cl. (6) of s. 479-A is
that it does not operate as a bar to the prosecution for perjury in a case of
this description. Take, for instance, the trial of 'A' for the murder of 'B' in
the Sessions Court where 'C', 'D' and 'E' gave evidence that they actually saw
'A' committing the murder of 'B'. Suppose at the conclusion of the trial and
after delivery of judgment by the Sessions Court 'B' is found alive and there
is incontestable evidence to show that 'A' was falsely charged for the murder
Is it to be contemplated that in such a case
there is no remedy available to the Court to prosecute C, D, and E for perjury
under the provisions of s. 476, Criminal Procedure Code, though action cannot
be taken, in the circumstances of the case, under s. 479-A, Criminal Procedure
Code? In our opinion, such a startling consequence was not contemplated by
Parliament and the bar of cl. (6) of s. 479-A was intended only to apply to
cases of perjury and fabrication of false evidence in which the trying
Magistrate could have acted under s. 479-A(1). In other words, the bar of cl.
(6) will not apply to a, case where perjury is detected not merely with
reference to the evidence adduced at the trial but with reference to the
evidence adduced in some other distinct proceeding, not then brought before the
court or because there is some other material subsequently produced after the
conclusion of the trial and delivery of judgment which renders the prosecution
for perjury essential in the interests of justice. Applying the principle in
the present case we are of opinion that the prosecution of the petitioners
under the provisions of s. 476, Criminal Procedure Code by the Magistrate after
the conclusion of the trial is legally valid and is not affected by the bar of
(6) of s. 479-A, Criminal Procedure Code.
On behalf of the appellants Mr. Thiagarajan
referred to the decision of this Court in Shabir Hussein Bholu v. State of
Maharashtra(1). But the Principle of that decision does not afford any
assistance to the appellants in this case. It appears that the (1)  Supp.
1 S.C.R. 501.
378 appellant in that care 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 under s. 193, Indian Penal Code. It was held by this Court that the
provisions of s. 479-A 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. 479-A, (i) the court must form an opinion that the person has
committed one of the two categories of offences referred to in S. 479-A, and
(ii) the Court must come to the conclusion that for the eradication of the
evils of perjury etc. and in the interests of 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 s. 479-A were held applicable to the case and 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. 479-A. 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 or false. It is manifest that the
material in that case was produced before the Sessions Court for coming to the
conclusion that the appellant had committed perjury and so the procedure
contemplated In s. 479-A(1) was applicable and since the Sessions Judge did not
proceed under that section, though he could have done so, the bar contemplated
by cl. (6) of s.
479-A operated and no action could have been
taken under S. 476, Criminal Procedure Code. The ratio of that decision is not
applicable to the present case because the material facts are different. It is
necessary to add that in Shabir Hussein Bholu v. State of Maharashtra(1) this
Court observed that if the Judge is unable to come to a conclusion that the
statement made at the trial is false then provisions of s. 479-A (1) would not
be applicable. At page 512 of the Report it was observed by this Court as
follows:"But, for considering the applicability of s. 479-A(1) what hag to
be borne in mind is that in a jury trial it is possible for the Judge to come 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 (A.I.R. 1961 All. 397),
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 proceed Supp. 1. S.O.R. 501.
379 ings before the committing Magistrate
must be held to be entirely separate proceedings then we agree with the
Allahabad High Court that s. 479-A.(1) would not apply." There is
divergence of opinion among the various High Courts on the question of law
presented for determination in this case. In Jai Bir Singh v. Malkhan Singh and
another(1), it was held by Sahai, J. that the bar of s. 479-A(6) applies to all
cases of perjury, viz., (1) those where the perjury or the fabrication of false
evidence has been detected by the court when the judgment is pronounced, and
(2) cases where the perjury or fabrication of false evidence does not come to
light till after the judgment has been pronounced and it was not open to the
Court to proceed under s. 476, Criminal Procedure Code for prosecution in the
latter class of cases.
The same view has been taken by the Punjab
High Court in Parshotam Lal L. Vir Bhan v. Madan Lal Bishambar Das(2) and the
Rajasthan High Court in Amolak v. State(1). A contrary view has been expressed
by the Madras High Court in C. P. Kasi Thevar v. Chinniah Konar(4) and In re.
For the reasons already expressed we are of
opinion that the decision of the Madras Court in C.P. Kasi Thevar v. Chinniah
Konar(4) and In re. Gnanamuthu(5) represents the correct law on the point.
For these reasons we hold that there is no
merit in this appeal which is accordingly dismissed.
A.I.R. 1958 All. 364. (2) A.I.R. 1959 Punjab 145.
(3) A.I.R. 1961 Rajasthan 220. (1) A.I.R.
1960 Mad. 77.
(5) A.I.R. 1964 Mad. 446.