Babu Lal Vs. State of Uttar Pradesh
& Ors [1963] INSC 192 (18 September 1963)
18/09/1963 SHAH, J.C.
SHAH, J.C.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
WANCHOO, K.N.
DAYAL, RAGHUBAR
CITATION: 1964 AIR 725 1964 SCR (4) 957
ACT:
Code of Criminal Procedure, 1898(Act 5 of
1898), ss. 476, 479A-Using forged document-Whether offence contemplated by s.
479A(1)-Interpretation of s. 479A.
HEADNOTE:
In a civil suit the appellant was examined as
a witness and he tendered in evidence an agreement, which in the Munsiff's
opinion was forged. The Munsiff, however, in his judgment did not record the
opinion required for ordering the prosecution of the appellant under s. 479A of
the Code of Criminal Procedure. Respondents 2 to 5, who were the plaintiffs in
the suit, had applied, before the suit was disposed of, that action be taken
against the appellant under s. 479A of the Code of Criminal Procedure. In
disposing of the suit the Munsiff did not record the opinion which he was
required to record if he desired that action should be taken against the
appellant under s. 479A. But on the application of the Respondents, the Munsiff
directed that complaint be made against the appellant in exercise of the powers
vested under s. 476 Code of Criminal Procedure for the offence of fraudulently
or dishonestly using as genuine a document which the appellant knew or had
reason to believe to be forged. This order of the Munsiff was confirmed in
appeal by the District Judge, and the revision to the High Court, too, was
dismissed. In appeal by special leave,
HELD: (i) Section 479A of the Code of
Criminal Procedure excludes the jurisdiction of the Court to proceed under s. 476
to 479, only in respect of offences under s. 195(b) & (c) of the Code of
Criminal Procedure where a person appearing before the Court or a witness has
intentionally given false evidence in any stage of a judicial proceeding or has
intentionally fabricated false evidence for the purpose of being used in any
stage of the judicial proceeding.
958 (ii)The offence punishable under s. 471
of the Indian Penal Code does not fall within the category contemplated by s. 479A
Code of Criminal Procedure, and therefore, the authority of the Court to act
under s. 476 of the Code of Criminal Procedure is not impaired.
Raghubar Prasad Dudhwalla v. Chamanlal Mehra,
[1964] 3 S. C. R. 980 and Shabir Hussain Bholu v. State of Maharashtra, [1963]
Supp. 1 S. C. R. 501, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No.708 of 1962.
Appeal by special leave from the judgment and
order dated January 31, 1962, of the Allahabad High Court in Civil Revision No.
60 of 1960.
C.B. Agarwala, K. P. Gupta for K. R.
Krishnaswamy for the appellant.
C. P. Lal, for respondent no. 1.
S. P. Sinha and M. I. Khotvaja, for
respondents nos. to 5.
September 18, 1963. The judgment of the Court
was delivered by SHAH, J.-Jairam and three others-hereafter collectively called
"the plaintiffs"-sued Babu Lal-appellant in this appeal-in the Court
of the Munsiff, Koil, District Aligarh, for a decree for possession of a strip
of land, for removal of a wall and a slab of stone and for an injunction
restraining the making of certain constructions in the northern wall of the
plaintiffs' house. The plaintiffs claimed that Mohini wife of jairam the first
plaintiff had purchased the house occupied by them by sale deed dated August 1,
1932 from the vendor who was also named Mohini, who in her turn had purchased
the house by sale deed dated July 25, 1917 from the original owner Kishan Lal.
Babu Lal who is the son of Kishan Lal pleaded
that the vendor Mohini had acquired only a life interest in the house by the
deed under which the property was conveyed to her by Kishan Lal and the
plaintiffs' predecessor-ininterest had acquired no title under the sale deed
dated August 1, 1932.
In support of this plea Babu Lal gave
evidence at the trial of the suit and tendered in evidence an agreement dated
July 25, 1917 purported to be executed by Mohini to whom Kishan Lal had
conveyed the 959 house reciting that the sale deed in her favour was without
consideration and that she had only a life interest in the house.
The Trial judge held that the agreement
relied upon by Babu Lal was "not genuine" and that Mohini,
predecessor-ininterest of the plaintiffs had under the sale deed dated August
1, 1932 acquired title to the house in dispute and on that footing decreed the
suit. In appeal to the District Court the finding that the agreement was not
genuine was not challenged.
Before the suit was disposed of by the
Munsiff the plaintiffs had applied that action be taken against Babu Lal under
s. 479A of the Code of Criminal Procedure, because Babu Lal had given false
evidence before the Court, that he had forged the agreement relied upon by him,
and that he had fabricated false evidence and had used such fabricated evidence
at the trial, and had thereby committed offences punishable under ss. 193, 209,
463 and 471 of the Indian Penal Code. The Munsiff did not dispose of the
application by his judgment deciding the suit. After the disposal of the suit
the plaintiffs moved the Munsiff for an order on the application filed by them.
The Munsiff held that no action could be taken against Babu Lal for the offence
of intentionally giving false evidence or intentionally fabricating false evidence
for the purpose of being used in the suit for such action was barred by s. 479A
Code of Criminal Procedure, but in his opinion it was expedient in the interest
of justice that a complaint be filed against Babu Lal for offences "under
ss. 463 and 471 I.P. Code".
Pursuant to this order on May 30, 1959 a
complaint was filed against Babu Lal charging him with committing an offence
under s. 471 read with s. 463 Indian Penal Code by using the agreement dated
July 25, 1917 knowing or having reason to believe that it was a forged
document. The order passed by Trial Court was confirmed in appeal by the
District Judge, Aligarh and a revision application to the High Court of
Allahabad challenging the order was dismissed. With special leave, Babu Lal has
appealed to this Court.
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
476 sets out the procedure for prosecution of offenders for offences enumerated
in s.
195(1)(b) & (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 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 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 476A 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 476B provides
for a right of appeal against the order making or refusing to make complaint.
Sections 478 and 479 deal with the procedure which may be followed in certain
grave cases.
Section 479A which was added by the Code of
Criminal Procedure (Amendment) Act 26 of 1955 by the first subsection (insofar
as it is material) provides :
"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 there for 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 * * * *." 961 And sub-s. (6) enacts that :
"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." It is clear from the terms of sub-s. (6) that
the procedure prescribed thereby alone applies if the case falls within sub-s.
(1). But sub-s. (1) has a limited operation : it applies only to the
prosecution of a witness appearing before the Court, who 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. The sub,section may therefore be resorted to
only in a case which falls within the first paragraph of s. 193 of the Indian
Penal Code and allied sections 194 & 195-when it is committed by a witness
appearing before the Court.
Babu Lal was examined as a witness in the
Civil suit filed by the plaintiffs. He tendered in evidence the agreement dated
July 25, 1917. In the opinion of the Munsiff the document was a forged
document. The Munsiff however by his judgment disposing of the suit did not
record an opinion that it was expedient for the eradication of the evils of
perjury and fabrication of false evidence, and in the interests of justice to
prosecute Babu Lal for the offence of intentionally giving false evidence, or
for intentionally fabricating false evidence for the purpose of being used at
any stage of the judicial proceeding. He could not therefore after the disposal
of the suit make a complaint for the offence of giving false evidence or
fabricating false evidence. The Trial Court accepted this restriction upon its
jurisdiction and directed in exercise of the powers vested under S. 476
Criminal Procedure Code the making of a complaint of an offence of fraudulently
or dishonestly using as genuine a document which Babu Lai knew or had reason to
believe to be a forged document.
It is urged by counsel for Babu Lal that a
complaint for an offence under s. 471 Indian Penal Code may also be made under
s. 479A Code of Criminal Procedure and not otherwise.
The phraseology used in s. 479A is plain and
unambiguous :
it excludes the jurisdiction of the 962 Court
to proceed under ss. 476 to 479, in respect of offences specified in s. 195(1)
(b) & (c) of the Code of Criminal Procedure only where a person appearing
before the Court 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. An
offence punishable under s. 471 Indian Penal Code being one of fraudulently or
dishonestly using as genuine any document which the accused knows or has reason
to believe to be a forged document, does not fall within the category
contemplated by s. 479A(1) of the Code of Criminal Procedure and therefore the
authority of the Court to act under s. 476 of the Code is impaired by sub-s.
(6) of s. 479A. This Court in Raghubir Prosad Dudhtvalla v. Chamanlal Mehra and
another(1) observed :
"The special procedure of s. 479A is
prescribed only for the prosecution of a witness for the act of giving false
evidence in any stage of judicial proceeding or for fabrication of false
evidence for the purpose of being used in any stage of a judicial proceeding.
There is nothing in the section which precludes the application of any other
procedure prescribed by the Code in respect of other offences.
Examining the special procedure prescribed by
s. 479A in that light, it is important to notice that the act of intentionally
giving false evidence in any stage of a judicial proceeding and the act of
fabricating false evidence for the purpose of being used in any stage of a
judicial proceeding mentioned in s. 479A of the Code of Criminal Procedure are
the acts which are made punishable under s. 193 of the Indian Penal Code and
cognate sections in Chapter XI." It is true that some of the ingredients
of the act of fabricating false evidence which is penalised under s. 193 Indian
Penal Code and of making a false document and thereby committing forgery within
the meaning of ss. 463 and 464 Indian Penal Code are common. A person by making
a false entry in any book or record or by making any document containing a
false statement may, if the (1) [1964] 3 S.C.R. 980.
963 prescribed conditions of s. 463 are
fulfilled, commit an offence of forgery. But the important ingredient which
constitutes fabrication of false evidence within the meaning of s. 192 Indian
Penal Code besides causing a circumstance to exist or making a false
document-to use a compendious expression-is the intention that the circumstance
so caused to exist or the false document made may appear in evidence in a
judicial proceeding, or before a public servant or before an arbitrator, and lead
to the forming of an erroneous opinion touching any point material to the
result of the proceeding. The offences of forgery and of fabricating false
evidence for the purpose of using it in a judicial proceeding are therefore
distinct, and within the description of fabricating false evidence for the
purpose specified in s. 47.9A Criminal Procedure Code, the offence of forgery
is not included. In any event the offence penalised under s. 471 Indian Penal
Code can never be covered by sub-s. (1) of s. 479A. Therefore for taking
proceeding against a person who is found to have used a false document
dishonestly or fraudulently in any judicial proceeding, resort may only be had
to s. 476 Code of Criminal Procedure.
We may point out in the following observation
made by this Court in dealing with the true interpretation of s. 479A Code of
Criminal Procedure in Shabir Hussain Bholu v. State of Maharashtra (1) :
"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 a complaint", the words
"and s.71" appear to have crept in by oversight.
That is clear from the observation made by
the Court earlier in the judgment, that the discussion relating to the
exclusive operation of s. 479A of the Code of Criminal Procedure was restricted
to the offence of intentionally (1) [1963] Supp. 1 S.C.R. 501.
964 giving false evidence in any stage of
judicial proceeding.
The appeal therefore fails and is dismissed.
No order as to costs.
Appeal dismissed.
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