Narayanswami Vs. State of Maharashtra
 INSC 137 (30 April 1971)
CITATION: 1971 AIR 1789 1971 SCR 588 1971 SCC
Code of Criminal Procedure, 1898-Section 479A
sub-section (1)-Reasonable opportunity of being heard contemplated by section
The requirement under sub-section (1) of
section 479A of the Code of Criminal Procedure, of giving the witness an
opportunity of being heard after the recording of the necessary findings and before
making the complaint is not mandatory. That step is required to be taken only
if the court thinks fit-a matter left to the discretion of the trial court. The
prosecution of the appellant is therefore not vitiated because such an
opportunity was not given.
[594F-G] Dr. B. K. Pal Chaudhry v. The State
of Assam,  1 S.C.R. 945 and Dr. Kuppa Goundan and Anr. v. M.S.P. Rajesh,
 Supp S.C.R. 373, distinguished.
Rukmani Bai v. G. R. Govindaswamy Chetty,
 M.L.J. 421 and Re: Javvaji Uthanna, A.I.R. 1964 A.P. 368, referred to.
[In the instant case adequate opportunity was
given to the appellant, before the findings were recorded to show cause why he
should not be prosecuted. Therefore the Court did not find it necessary to
express any opinion as to the correctness of the observations of the Madras and
Andhra Pradesh High Courts in Rukmani Bai v. Govindaswamy Chetty and In re
Javvaji Uthanna that even though sub-section (1) does not mandatorily require
that any opportunity should be given to the person complained against there is
no reason why the principle of audi alteram partem should not apply.] [595D-E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 3 of 1969.
Appeal by special leave from the Judgment and
Order dated September 2, 4, 1968 of the Bombay High Court, Nagpur Bench in
Criminal Appeal No. 74 of 1968.
W. S. Barlingay and A. G. Ratnaparkhi, for
P. K. Chatterjee and S. P. Nayar, for the
The Judgment of the Court was delivered by
Hegde, J.--The only substantial question that arises for decision in this
appeal by special leave is as to whether the requirements of Section 479-A of
the Code of Criminal Procedure have been complied with before instituting the
complaint from which 589 this appeal arises and if they have not been complied
with whether the prosecution is vitiated ? In July 1965, there was a dacoity
within the limits of Railway Police Station, Nagpur. Several properties
belonging to the Railways were stolen in the course of that dacoity.
During the investigation of that offence, the
Railway Police sought the assistance of the local police. Inspector Khandagale
(D. W. 1) who was incharge of the Tehsil police station directed the appellant,
the Sub-Inspector working under him to assist the Railway Police in the
investigation of the case. Part of the investigation was carried on by the
appellant. Two of the persons arrested in connection with that dacoity were
Ambadas and Deorao. They are said to have made certain statements on July 21,
1965. It is further alleged that in pursuance of the information given by
Deorao, the police in the presence of the Panchas recovered certain properties.
The concerned panchnama was attested by two witnesses viz. Pochanna and Abdul
After the investigation a charge-sheet was
filed against several persons including Ambadas and Deorao accusing them of the
commission of an offence under Section 395, I. P. C.
After preliminary enquiry the case was
committed to the court of Sessions, Nagpur and was tried before the Additional
Sessions Judge, Nagpur as Sessions Trial No. 8 of 1966 on his file. The trial
of the case commenced on June 6, 1966. Pochanna, one of the Panch witnesses was
examined on June 9, 1966. He did not support the prosecution. Abdul Gani, the
other Panch witness also had been cited as a witness but he was not present in
court on June 9, 1966. On June 10, 1966, one person who claimed himself to be
Abdul Gani, who had attested the panchnama. was examined. He deposed that he
had attested the panchnama and that he was present at the time the recoveries
were made. On June 11, 1966, the appellant was examined. The appellant deposed
that the person examined on the previous day was Abdul Gani and that person had
attested the panchnama in question.
Thereafter the case took a new turn. It
appears that the accused came to know that the person examined on June 10, 1966
was not Abdul Gani but one Dilawar and that the real Abdul Gani had migrated
from Nagpur and settled down at Rajnandgaon. On enquiry their Counsel, Mr. Ingle
came to know that Dilawar who posed himself as Abdul Gani was involved in a
criminal case pending in the Munsiffs court in Nagpur. After ascertaining all
the facts. Mr. Ingle filed an application before the learned trial Judge
alleging that the witness who posed himself as Abdul Gani and spoke in support
of the recovery panchnama was an imposter and that he was not the real attestor
to the panchanmma Therein he further stated that the name of that person was
Dilawar and be was the son of one Munirsha. Thereafter the learned trial judge
recalled the said witness and further examined him on June 590 14, 1966, At
that time the witness confessed that he was not Abdul Gani and that he did not
attest the panchnama, but he had been compelled by the appellant to depose
After the examination of this witness, the
learned trial judge being prima facie of the opinion that the appellant had
given perjured testimony and that he has fabricated false evidence, issued a
notice to the appellant to show cause why he should not be prosecuted for
perjury and for fabricating false evidence for the purpose of the case. The
appellant showed cause on June 16, 1966. In the statement filed by him he again
asserted that the person examined on June 10, 1966 was Abdul Gani, the attestor
of the panchnama.
He denied the fact that the said witness is
Dilawar. He went further and averred that the witness had been purchased by the
accused and that he has deposed falsely that he is not Abdul Gani. Thereafter
the appellant was recalled and further examined. During the course of his
examination he reiterated the stand taken by him in his written statement.
In the course of his cross-examination, it
was elicited from him that he knew the person concerned for over three years,
thereby the possibility of the appellant giving incorrect evidence due to
misconception was ruled out. After the appellant was reexamined, the accused
produced a person in court who according to them was the real Abdul Gani. That
person deposed that he is Abdul Gani and that he was the person who had
attested the panchnama. The learned trial Judge took his sample signatures and
compared the same with the signature found on the panchnama. He found them to
tally with one another. After the conclusion of the trial, the learned trial
judge acquitted all the accused and directed the prosecution of Dilawar and the
appellant under Sections 195 and 196, I. P. C. At this stage it may be noted
that in the course of his judgment in the dacoity case, the learned trial judge
gave a finding that Dilawar and the appellant intentionally gave false evidence
in the case and further the appellant had intentionally fabricated false
evidence for the purpose of being used in that case. He also opined that for
the eradication of the evils of perjury and fabrication of false evidence and
in the interest of justice it is expedient that Dilawar and the appellant
should he prosecuted for the offences committed by them. On the basis of that
complaint, the appellant and Dilawar were tried, convicted and sentenced to
suffer rigorous imprisonment for three years. The appellant was convicted both
for perjury as well as for fabricating false evidence. Under each head, he was
awarded a sentence of three years rigorous imprisonment but the two sentences
were ordered to run concurrently. Dilawar did not appeal against his conviction
and sentence. The applellant appealed against to the High Court of Maharashtra.
His appeal was summarily dismissed.
Thereafter he appealed to this Court after
obtaining special leave. In that appeal this court came to the conclusion that
the High Court should not have 591 :summarily dismissed the appeal as arguable
questions of fact and law arose for consideration. It accordingly set aside the
order of the High Court and remitted the case to the High Court with a
direction tore-admit the appeal and dispose of the same according to law.
Accordingly the appeal was again heard by the Nagpur Bench of the Maharashtra
High Court. The appeal has again been dismissed by the High Court. We have now
to consider the correctness of the decision of the High Court.
So far as the merits of the case are
concerned, there is little to be said in favour of the appellant's case. There
is hardly any doubt that Dilawar had posed himself as Abdul Gani. It is also
clear from the evidence on record and from the circumstances of the case that
the appellant was responsible for inducing Dilawar to pose as Abdul Gani. All
that was said in favour of the appellant by Dr. Barlingay, his learned Counsel
was that the possibility of the appellant innocently thinking that Dilawar was
the real Abdul Gani cannot be ruled out. We are unable to accept this
contention. It is clear from the admissions made by the appellant during the
Sessions Trial which admissions have been brought on record as evidence in the
present case that he knew Abdul Gani very well. Therefore there was no occasion
for him to make any mistake. The appellant had strongly asserted in his
statement in reply to the show cause notice as well as in his deposition in
court that the person who was examined on June 10, 1966 was the real Abdul Gani
and that he was the person who had attested the panchnama. Under these
circumstances, the plea that the appellant gave evidence under an erroneous
impression cannot be entertained. It is clear that the appellant has no regard
We also do not find any merit in the
contention that the explanation given by the appellant in the dacoity case as
well as his evidence in that case are inadmissible, in the present proceedings.
Admissions made in the explanation given and in the deposition are relevant and
admissible in the present case. An admission is a substantive evidence, though
it is open to the person who made the admission to show that the fact admitted
is not correct. In the absence of any such proof the admission has to be
considered as an important piece of evidence.
As mentioned at the outset the only important
question for decision in this appeal is whether the requirements of Section 479A.
Code of Criminal Procedure have been complied with before filing the present
complaint. Section 479-A was incorporated into the Code of Criminal Procedure
by Act 26 of 1955. That section reads :
"479-A. Procedure in certain cases of
(1) Notwithstanding anything contained in
sections 592 476 to 479 inclusive when any Civil, Revenue or Criminal Court is
of opinion that any person appearing before it as a witness has intentionally
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 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.
Explanation.-For the purposes of this subsection,
a Presidency Magistrate shall be deemed to be a Magistrate of the first class.
(2) Such Magistrate shall thereupon proceed
according to law and as if upon complaint made under Section 200.
(3) No appeal shall lie from any finding
recorded and complaint made under subsection(1).
(4) Where, in any case, a complaint has been
made under sub-section (1) and an appeal has been preferred against the
decision arrived at in the judicial proceeding out of which the matter has
arisen the hearing of the case before the Magistrate to whom the complaint was
forwarded or to whom the case may have been transferred shall be adjourned
until such appeal is decided ; and the Appellate Court, after giving the person
against whom the complaint has been made an opportunity of being heard, may, if
it so thinks fit, make an order directing the withdrawal of the complaint; and
a copy of such order shall be sent to the Magistrate before whom the hearing of
the case is pending.
593 (5) In any case, where an appeal has been
preferred from any decision of a Civil, Revenue or Criminal Court but no
complaint has been made under sub-section (1), the power conferred on such
Civil, Revenue or Criminal Court under the said sub-section may be exercised by
the Appellate Court; and where the Appellate Court makes such complaint, the
provisions of sub-section (1) shall apply accordingly, but no such order shall
be made, without giving the person affected thereby an opportunity of being
(6) No proceedings shall be taken under
Section 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".
This section was introduced into the Code
with the idea of eradicating to the extent possible the evils of perjury and
fabrication of false evidence a widespread evil that is corroding our judicial
system. The then existing procedure in the matter of prosecuting those who give
false evidence or use fabricated evidence in judicial proceedings was found to
be tardy and ineffective. Therefore power was given both to the trial court as
well as to the appellate court to forthwith complain against witnesses guilty
of perjury or fabricating false evidence without having recourse to the
procedure laid down in Sections 476 to 479 of the Code of Criminal Procedure.
But at the same time the legislature felt that before proceeding against those
persons the court must form an opinion that the witness has either given
intentionally false evidence or has intentionally fabricated false evidence and
further must form an opinion that it is expedient in the interests of justice
that the witness should be prosecuted for the offence committed by him.
It is clear from the findings given by the
learned trial Judge in the dacoity case that he had come to a prima facie
conclusion that the appellant had given false evidence and further that he had
intentionally fabricated false evidence for the purpose of being used in that
case. He had also 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 was expedient that the appellant should be prosecuted for the offences
committed by him.
Thus far there is no difficulty. But
according to the appellant, the complaint is vitiated because after arriving at
the findings in question and before filing the complaint, the learned Sessions
Judge had not given him an opportunity to show cause why complaint should not
be filed against him.
As seen earlier he had given an opportunity
to the appellant at an earlier stage to show cause why he 38-1 s. c. India/71
594 should not be prosecuted for giving false evidence and for fabricating
false evidence. But we are told that the requirement of giving a notice to show
cause why a complaint should not be filed. after the required findings are
given and before making the complaint is mandatory and failure to do so has
vitiated the prosecution. Let us now proceed to consider whether this
contention is well founded. The material portion of Clause (1) of Section 479-A
".................... 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 may if it so
thinks fit, after giving the witness an opportunity of being heard make a
complaint thereof in writing............... it (emphasis supplied) This
provision clearly shows that what is mandatory is that the judge must give a
finding that the witness has intentionally given false evidence in the
proceeding before him or has intentionally fabricated false evidence for
purposes of being used in that 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 the witness should be prosecuted for the offence
in question. Giving of an opportunity to the witness to show cause against the
contemplated complaint is not mandatory.
That step is required to be taken only if the
court thinks fit-a matter left to the discretion of the trial court.
This position is made further clear when we
go to subsection (5) of Section 479-A. This sub-section empowers the appellate
court to make a complaint against a witness whom it thinks is guilty of perjury
or guilty of fabricating false evidence to be used in the proceedings before
it. It provides that where the appellate court proposes to make a complaint
"the provisions of sub-section (1) shall apply accordingly but no such
order shall be made without giving the person affected thereby an opportunity
of being heard".
(emphasis supplied) 595 In other words in the
case of the trial court a discretion is given as to whether an opportunity
should be given or not before filing a complaint to show cause against the
proposed complaint but so far as the appellate court is concerned the giving of
an opportunity to the witness to show cause against the contemplated complaint
is made mandatory. The reason for this distinction is understandable. So far as
the trial court is concerned, it is the court that has seen the witness and
observed his demeanour. Therefore the legislature evidently thought that the
question whether a witness should be given a further opportunity to show cause
why complaint should not be filed against him may be left to the discretion of
that court but the appellate court having no such opportunity, the legislature
evidently thought that an opportunity should be given to the witness to show
cause against the contemplated complaint. The conclusion arrived at by us
accords with the view taken by the High Court of Madras in Rukmani Bai v. G. R.
Govindaswamy Chetty(1) and by Andhra Pradesh High Court in Rc. Javvaji
In those two decisions even after coming to
the conclusion that Clause (1) of Section 479-A does not mandatorily require
that any opportunity should be given to the person complained against to show
cause against the contemplated complaint, the courts took the view that all the
same notice should be issued as there is no reason why the well-known and well
accepted principle of audi alteram partem should not apply. In this case it is
not necessary to express any opinion as to the correctness of these
observations. As seen earlier adequate opportunity had been given to the
appellant to show cause against the proposed complaint.
Dr. Barlingay, learned Counsel for the
appellant placed reliance on two decisions of this Court namely in Dr. B. K. Pal
Chaudhry v. The State of Assam(3) and Kuppa Goundan and anr. v. M. S. P.
Rajesh(4) in support of his contention that after giving the, ;findings
required under Section 479-A(1) and before filing the complaint, the court is
bound to give the person concerned an opportunity to show cause against the
proposed complaint against him. Neither of the two decisions bear on the
question of law in issue. In Dr. B. K. Pal Chaudhry's case(1), the complaint
was filed by the appellate court and not by the trial court. All that was held
by this Court in that case is that it was the duty of the court acting under
sub-sections 1 and 5 of Section 479-A of the Code of Criminal Procedure to record
a finding that in its opinion intentionally false evidence has been given and
for the eradication of the evils: of perjury and in the interests of justice,
it (1)  M.L.J. 421; (2) A.I.R. 1964 A.P. 368. (3)  1 S.C.R. 945.
(4)  Supp. S.C.R. 373, 596 is expedient that there should be a
prosecution for the offence and also to give the person against whom it is
intended to proceed a hearing before making the complaint in respect of the
In Kuppa Goundan's case(5) the scope of
sub-section (6) of Section 479-A, Code of Criminal Procedure came up for consideration.
That case has nothing to do with the scope of sub-section (1) of Section 479-A.
The observations made in those cases. must be read in the context in which they
were made. In those cases this Court did not consider the scope of Section
In the result this appeal fails and the same
K.B.N. Appeal dismissed.
(1) (1966) Supp. S.C.R. 373.