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Report No. 41

35.11. Power to order costs.-

A Bombay Amendment1 of the Code makes a useful provision conferring power to award costs in proceeding under section 476 and connected sections. We propose to adopt it with a few modifications. The new section which should come next after section 476A may be as follows.-

"476AA. Power to order costs.- Any Court dealing with an application made to it for filing a complaint under section 476 or with an appeal under section 476A shall have power to make such order as to costs as may be just.

1. Section 476C, inserted by Bombay Act 46 of 1948, reads as follows.-

"476C. A Criminal Court dealing with an application made to it for filing a complaint under section 476 or 476A, and a Court dealing with an appeal under section 476B and the High Court dealing with an application in revision shall have power to make such order as to costs as may be just:

Provided that no such order shall be made against the Government or any public servant acting on behalf of the Government."

35.12. Sections 478 and 479 omitted.-

Sections 478 and 479, which deal with commitment by civil courts, may be omitted. These sections are rarely resorted to. The Civil Court can make a complaint to the Magistrate even where the offence is triable exclusively by the Court of Session.

35.13. Section 479A unsatisfactory.-

Section 479A was inserted in 1955 with the object of "eradicating the evils of perjury". The section has brought into being a procedure for making a complaint in case of perjur.- a procedure which excluded1 that provided by section 476. Ever since its introduction the section has been a source of trouble. First, there was a controversy as to whether it was exclusive of section 476 or merely provided an additional alternative. That the former is the correct view is now wel.-settled. But the main question which naturally arises is whether this section marks an improvement over section 476. If speedy punishment of perjury is the aim, then the section does not go far enough, because, though it bars an appeal against a complaint made by the court, it does not give power to the court itself to punish perjury.

Moreover, action under the section cannot be taken after judgment is pronounced. Where a complaint "can be" made under the section, action cannot be taken2 under section 476, so that if the court, by reason of forgetfulness or insufficient material, does not make a complaint on the termination of the proceedings, action cannot be subsequently taken under section 476, and the offender escapes unpunishe.-a result hardly intended by the legislature. This is a positive harm done by this section.

1. See section 479A(6).

2. Section 479A(6).

35.14. New provision for flagrant perjury proposed.-

A mere repeal of the section, however, without some provision for punishing perjury will not be a satisfactory solution. Some provision whereby perjury of a flagrant and unchallengeable type could be effectively punished summarily without seriously prejudicing a fair trial of the person concerned, is desirable. Adopting the recommendation made by the Commission in the 14th Report,1 for the insertion of a section for punishing perjury committed by a witness making contradictory statements on oath on two different occasions, we propose the insertion, in place of section 479A, of a different section the salient features of which are as follows.-

(i) any criminal court, other than that of a Magistrate of the second class should have power to punish summarily the offence of giving false evidence committed by a witness who makes contradictory statements on oath;

(ii) maximum punishment should be 6 months' imprisonment or fine up to 500 rupees or both;

(iii) the court's order should be appealable;

(iv) the new procedure should be without prejudice to action under section 476;

(v) it should be limited to contradictory statements on oath made on two different occasions and should not cover contradictions between statements made in examination and cros.-examination.

We are not unaware of the risks involved in giving power to punish perjury to the very Court before which it is committed. The original section 477 (deleted in 1923) gave a power to the Court of Session to punish perjury. The Select Committee in 1922 deliberately2 omitted this section on the ground that it is not desirable that a court which has instituted the proceedings should dispose of the case itself. The provision which we recommend is of a very limited character, being confined to obvious cases of perjury and authorising a small punishment.

Even this procedure will be discretionary, so that where the Court is of opinion that perjury, even though committed by contradictory statements on oath, is likely to raise complicated questions, or deserves more serious punishment than that permissible under the proposed section, or is otherwise of such a nature that the ordinary procedure3 is more appropriate, the court will not proceed under the proposed section.

It may also be noted that the proposed section is confined to contradiction between the statement on oath of the witness in court at the trial and his previous statement on oath recorded under section 164 or section 200 or section 202 in the same case. It was suggested in our discussion that various other kinds of statements, such as statements made in the affidavit in the same case under section 145 or in the course of additional evidence recorded under the orders of the Appellate Court, etc. might also be covered, but in our view these contradictions should be left to be dealt with by the ordinary procedure for punishment of perjury by way of complaint under Section.

We accordingly propose the following revised section 479.- punishment of perjury by way of complaint under section 476.

"479A. Summary procedure for punishment for giving false evidence by making contradictory statements.- (1) If in any trial before a Court of Session or of a Magistrate of the first class, a witness makes on oath a statement which contradicts his previous statement on oath recorded under section 164 or section 200 or section 202 and it appears to the Court that the witness has, by making such contradictory statements, committed an offence punishable under section 193 of the Indian Penal Code, it may, if satisfied that it is expedient in the interests of justice that the witness should be tried summarily for the offence, take cognizance of the offence, and, after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to imprisonment for a term not exceeding six months or fine not exceeding five hundred rupees or both.

(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

(3) Nothing in this section shall affect the power of the Court to make a complaint under section 476 for the offence where it does not choose to proceed under this section."

1. 14th Report, Vol. 2.

2. Report of the Select Committee (26h June, 1922) under clause 126.

3. Section 476.

35.15. Sections 480 to 482.-

Sections 480 to 482 which prescribe the procedure for punishing contempt when committed ex facie curiae do not require any changes or comments.

35.16. Section 483.-

Section 483 empowers the State Government to direct that any Registrar or Su.-registrar shall be deemed to be a Civil Court for the purposes of sections 480 to 482. It was suggested that similar power should be given to the State Governments to apply sections 480 and 482 to all Tribunals. We are unable to accept this suggestion. If such a provision is considered necessary, it should be included in the special law constituting such Tribunals.

35.17. Section 484.- No change is needed in section 484.

35.18. Section 485.-

In section 485, the words "and in the case of a Court established by Royal Charter, shall be deemed to be guilty of a contempt" occurring at the end may be deleted. The power of a State High Court to punish for contempt is governed by Article 215 of the Constitution and need not be provided for again in this section.

35.19. Section 485A amended.-

In section 485A(2) the words "in which an appeal lies" may be omitted in view of the changes which we propose1 in section 263.

1. See para. 22.8 above.

35.20. Section 486 revised.-

In section 486(1), which provides for appeals from convictions for contempt, we propose to exclude the High Courts but add a reference to the proposed new section 479A. In regard to su.-sections (3) and (4) we are of the view that appeals from all the authorities mentioned therein should lie to the Court of Session. Although City Sessions Courts in the Presidency towns are not ordinarily vested with appellate jurisdiction, we think that in this particular case the power should vest in them instead of in the High Courts.

Section 486, amended on the above lines, will read as follow.-

"486 Appeals from convictions in contempt cases.- (1) Any person sentenced by any court other than High Court under section 479A, section 480, section 485 or section 485A may , notwithstanding anything hereinbefore contained, appeal to the Court to which decrees or orders made in such Court are ordinarily appealable.

(2) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section, and the Appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed against.

(3) An appeal from such conviction by a Court of Small Causes shall lie to the Court of Session for the sessions division within which such Court is situate.

(4) An appeal from such conviction by any. Registrar or su.-Registrar deemed to be a civil court by virtue of a direction issued under section 483 shall lie to the Court of Session for the sessions division within which the office of such Registrar or Su.-Registrar is situate."

35.21. Section 487 amended.-

In su.-section (1) of section 487, a reference to the proposed new section 479A may be added. In view of the abolition of commitment proceedings, su.-section (2) is not necessary and may be omitted.

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