SHABIR HUSSEIN BHOLU v. STATE OF MAHARASHTRA
Citation: [1963] SUPP. 1 S.C.R. 501; 1962 INSC 282
Court: Supreme Court of India
Bench: SYED JAFFER IMAM , N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR
Judgment date:
Case summary
1962 INSC 282. Supreme Court of India judgment dated 1962-09-28. SHABIR HUSSEIN BHOLU v. STATE OF MAHARASHTRA. Read the judgment and case details on LawSphereX.
Judgment text
l s. c. R. SUPREME COURT REPORTS 501 A plea was made before us that in view of the age of the appellant and the fact that he was just about to retire when the prosecution was started We should reduce the sentence to the period already State undergone. These circumstances were borne in mind by the learned Special Judge when he passed a subs-tantive sentence of imprisonment of one year only though the maximum for the offence is seven years. We do not think that there is room for further reduc-tiol) of the sentence. A ppool dismissed. SHABIR HUSSEIN BHOLU v. STATE OF MAHARASHTRA (JAFER IMAM, N. RAJAGOPALA AYYANGAR and J. R. MunuoLKAR, ]]. ) Criminal Trial-Perjury by witnesses -Prosecution of- Order for prosecution made after conclusion of trial-Legality of -Committal proceedings-If a stage of Sessions trial-Gode of Criminal Procedure, 1898 (Act V of 1898), ss. 476 and 479-A. The appellant appeared as a witness in a jury trial for murder.
Before the Court he g'ave a 'tatemeut contradictory to the one he had given before the conunitting 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. Held, that the provisions of s. 479A 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. 479A, (i) the court must form an opinion that the person has committed one of the two categories of offences referred to in s. 479A, 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 opi· nion and conclusion must be arrived at at the time of the deli- Bholu very of the judgment or final order in the trial; the court cannot later on resort to s.
476 and make a complaint against the wit- Maharashtra nesses. The provisions of ss. 4 76 to 4 79 were totally excluded where the offence is of the kind specified in s. 479A, and if in such a case action is not taken under s. 4 79A no action can be taken under ss. 476 to 479. Purshotam. Lal v. Marian Lal, A. I. R. (1959) Punj. 145 and Arnolak v. State, A. I. R. (1961) Raj. 220, approved. Durga Prasad Khosla v. State of U. P. , A. I. R. 1959 All. 744, L«l Behari v. Staw, A. I. R. 1962 All. 251, Jaibir Singh v. Malkhan Singh, A. I. R. (1958) All. 364 and State of Bombay v. Premdas Sukritdas Gadhewal Kosh ti, A. I. R. 1960 Born. 483, disapproved. Badullah v. Staw, A. I. R. 1961 All. 397, distinguished. The provisions of s. 479A were applicable to the present case. The fact that the trial was with the aid of a jury did not preclude the Sessions Judge from recording the findings required bys. 479A. 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. The committal proceedings are a stage in the judicial proceedings before the Sessions Judge, and even if the statement made by the appellant before the committing Court was false the Sessions Judge could take action under s. 479A. CRIMINAL APPELLATE . JuRISDIC'rION: Criminal Appeal No. 92 of 1961. Appeal by special leave from the judgment and order dated. January 18, 1961, of the Bombay High Court in Cr. Revision Application No. 91 of 1961 (by State) converted from Cr. A. Ne>. 1131 of 1960. Miss Kapi/,o, and Y. Kumar, for the appellant. D. R. Prem, R. H. Dhebar and R. N. Sachthey, for respondent. 1962. September 28. The Judgment of tht Court was delivered by MuDHOLKAR, J.
-ln this appeal by special leave from the judgment of the Bombay High Court the question which arises for consideratiqn is whether the Chief Presidency Magistrate, Bombay, could not take cognizance of a complaint against the appellant for an offence under s. 193, Indian Penal Code, because the Additional Sessions Judge, Bombay, who filed that complaint had failed to follow the procedure laid down in s. 4 79A of the Code of Criminal Procedure. The appellant was a witness for the prosecution at the trial of one Rafique Ahmed before the Additional Sessions Judge, Gre2,ter Bombay, for offences of murder and abetment of murder, along with two other persons. \-\! 'hen the appellant had been examined as a witness before the committing magistrate he deposed that in his presence Rafique Ahmed had stabbed the deceased Chand while he was running away.
When, however, he was examined at the trial before the Court of Sessions three months later the appellant stated that while he was standing on the threshold of his house he saw Rafique Ahmed and his two associates coming from the direction of the Muhammaden burial ground. According to him one of them had a dagger while the others had only sticks with them. He, however, did not see anything more because, as his children were frightened, he closed the door and remained inside. He disclaimed knowledge of what happened subsequently and in cross-examination stated that it was not true that he actually saw Rafique Ahmed stabbing the deceased. In his charge to the jury the learned Additional Sessions Judge who tried the . case hc. s brought out the fact that the appellant had made two widely divergent statements in regard to a certain part of the incident.
The jury, after considering the entire evidence, returned a verdict of not ·guilty against Rafique Ahmed in respect of the offence under s. 302, I. P. C. but found him guilty under s. 304, first part. It also found the other two accused persons guilty " Hussein Bholu under s. 304, first part, read withs. 109, I. P. C. After v. the trial was over the learned Additional Sessions of Maharashtra Judge came to the conclusion that proceedings should udholkar, J. be taken against the appellant for intentionally givjn~ false evidence. He, therefore, recorded a separate order which runs thus : "I direct that the Registrar, Sessions Court for Greater Bombay should take necessary steps for prosecution of witness Shabir Hussein Bholu for the offence of perjury in view of his deposition before the Committing Magistrate and his deposition in this Court, both of which are on oath but are at variance with each other".
In pursuance of this order a notice was issued against the appellant requiring him to show cause why he should not be prosecuted under s. 193, I. P. C. for making contradictory statements regarding the same incident. In pursuance of that notice the appellant appeared before the Additional Sessions Judge and his counsel submitted that the contradictory statements were ascribable to the fact that the appellant was illiterate and that his mind was in a statt: of confusion. These contentions were rejected by the additional Sessions Judge who made the notice absolute and ordered the complaint to be filed. Accordingly a complaint was filed under his signature before the Chief Presidency Magistrate, Bombay. The statements which were regarded by him as contradictory were also set out in that complaint. At the trial of the appellant before the Chief Presidency Magistrate an objection was raised on his behalf that the provisions of s.
4 79-A, Code of Criminal Procedure had not been complied with by the Additional Sessions Judge and that consequently the Chief Presidency Magistrate could not take cognizance of the offence. The objection was upheld by the Chief Presidency Magistrate and the appellant was ordered to be discharged. The State preferred an application for revision before the High Court which granted that application, set aside the discharge of the appellant and remanded the ca~e for trial by the Chief Presidency Magistrate. It may be mentioned that in its order the High Court has observed that though the provisions of s. 479-A, Cr. P. C. had not been complied with, it was still open to the Chief Presidency Magistrate to take action on the complaint under ss. 4 76 to 4 79 of the Code of Criminal Procedure. Chapter XXXV of the Code of Criminal Procedure deals with "Proceedings in case of certain offences affecting the administration of justice".
Section 476 (1) provides that when any 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 ( l), cl. (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, if it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding Officer of the Court and forward it to a Magistrate of the first ciass having jurisdiction to deal with the case. The offences referred to in els. (b) and (c) of sub-s. (1) of s. 195 are those under ss. 193, 194 to 196, 199, 200, 205 to 2ll, 228, 463/ 471, 475 or 476, I. P. C. Bys. 89 of Act 26 of 1955, s. 479-A was added in ch. XXXV of the Code of Criminal Procedure. The heading of that section is "Procedure in certain cases of false evidence".
This section provides that notwithstanding anything con-tained in ss.
476 to 479, inclusive, when anv 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 and forward it to a Magistrate of the first class having jurisdiction to deal with the offence. Sub-section (6) of s.
479-A provides that no proceedings shall be taken under ss .. 4 76 to 4 79, 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. 479-A. Thus bearing in mind the non obstante clause at the commencement of s. 479-A and the provisions of sub-s. (6), it would follow that only the provisions of sub-s. (1) of s. 479-A must be resorted to by the Court for the purpose of making a complaint against a person for intentionally giving false evidence or for intentionally fabricating false evidence at any stage of the proceeding before it. No doubt, Parliament when it enacted s. 479-A did not amend els. (b) and (c) of s. 195 ( l) of the Code of Criminal Procedure ud s. 193, I. P. C. which makes giving false evidence i. Ja a judicial proceeding punishable, ss.
194 and 195 which make giving or fabricating false evidence with intent to procuring the conviction of a person for committing certain offences punishable, and s. 4113 and s. 467 which deal with offences of forgery and using forged documents as genuine, are still tg be found in els. (b) and (c) of sub-s. (1) of s. 195, Cr. P. C. In view of this, Mr. Prem who appears for the State contended that Parliament by not amending s. 195(1), els. (b) and (c) has made it clear that the procedure to be followed in s. 4 79-A is only an alternative procedure to be followed in· what he calls "flagrant cases".. In support oi his argument he has relied on the decision in Durga Prasad' Khosks v. The St,a,te of U. P. ('). In that case it w¥ ~i;'ld t! ,iat s. 479-A was enacted to, give additional power t_o the Court auth'orising it to deal speedily. with the more' flagrant or 'Serious cases . of intentionally givii;:ig false evidence or intentionally fabricating evidence in judicial. proceedings.
It was . ~! so _he1d there ,that the irttention of Parliament in enacting s'. 479-A was to deal with ofi'epces of perj tjry of a more serious type and that less serious type of offences which cannot be brought under' the' ,new provision will, tlierefore, have to be dealt With under s. 4 76 oJ ~h«;: Code of Criminal Procedure. The Court, therefore, teak the view that's. 479-A, Cr. P. C. has not imp1iedly repealed s. 476 of the Code in respect of alf cases of witnesses giying or fabricating (alse· ev_idence i. n judj-cial proceedings and ·so tlie - provisions of s. 478 of the: Code are still available for preceeding ag-ainst witnesses whose cases cannot be brought under s. 4 7!! 1-A fi~r one reason or another. He also, referred te thi; decision in Lal Behari v. Swte{') wji. ere the same view was taken. The learned Judges who decided the case dissented from the view t ukritdas Cadhewal Koshti(1) in which it was held thats.
479-A does not contain an exhaustive and self-contained procedure relating to all classes of perjury but only applies to a case where the Court acts suo motu at the time of declaring its judgment and records a find· ing that a person appearing before it as a witness had intentionally given false evidence or has intentionally fabricated false evidence. According to the court, while s. 479-A applies only to certain kinds of c~cs of giving false evidence, namely, serious, flagrant and patent cases of perjury where the Judge records a finding under s. 479-A( 1) and that s. 4 76 applies to ·all other cases of false evidence where the Judge has not recorded a finding under s. 479-(1). The conclusion arrived at by the Court was . that sub-s. (6) of s. 479-A does not exclude cases of perjury from the operation of ss. 476 to 479. On behalf of the appellant reliance was placed btfore us on the decisions in Parshotam Lal v. Jfadrm Lal(") where it was held that the provisions of s.
479-A override the provisions of ss. 476 to 479 in so far as they relate to the giving of false evidence or fabricating false evidence by a person who gives evidence during the . , 1947, issued
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