COURT REPORTS [1964] VOL. versus RAGHUBIR PROSAD DUDHEWALLA

980 SUF'REME COURT REPORTS [1964] VOL.

RAGHUBIR PROSAD DUDHEWALLA

CHAMANLAL MEHRA & ANR.

, (P. B. GAJENDJµGADXAR, K. N. WANCHOO and K. C. DAs GUPTA JJ.)

Criminal Trial-Witness giving false evidence-Prosecu-lion, if ca« be initiated-Code of Criminal Procedure, 1898 (Act Y of 1898), ss. 476, 477, 478, 479A.

The appellant was prosecution witness against the res-pondents. That case ended in the acquittal of the respon-dents. An application was moved under s., 476 of the Code of Criminal Procedure before the Magistrate against the appellant and some other prosecution witnesses with prayer that complaint be made against them. The Magistrate wasof opinion that s. 479A of the Code of Criminal Procedure was complete bar to action being taken against the appellant and other prosecution witnesses. So no complaint was filed against them.

On appeal the High Court set ·aside the order of the Magistrate and directed the Magistrate concerned to file complaint against the appellant in respect of offences under s. 467 ands. 4671120B of the Indian Penal Code as s. 479A of the Code of Criminal Procedure had no application to the facts of th" present case.

HeU that s. 479A had no application to prosecution for offences other than an offence under s. 193 and cognate sections in Ch. XI and that as regards other offences ss. 476, 477, 478 and 479 of the Code of Criminal Procedure continue to apply even after the enactment of s. 4 79A.

CmMINAL APPELLATE JURISDICTION: Criminal Appeal No. 44 of 1961.

Appeal by special leave from the judgment and order dated September 16, 1960 of the Calcutta High Court in Criminal Appeal No. 56 of 1958.

D. N. Mukherjee, for the appellant.

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B. K. Bhattacharya, and Sukumar Ghoae, for the respondent No. 1.

P. K. Chatterjee and P. K. Bose, for die respondent No. 2.

1963. 11:ay 10. The Judgment of the Court was delivered by

DAS GUPTA ].-This appeal by special leave is against decision of the Calcutta High Court.

The appellant was examined as witness for the prosecution in the court of the Additional Chief Presidency Magistrate, Calcutta, in case instituted by one Mayadas Khanna against the respondent. Chamanlal Mehra and two other persons under ss. 504 and 506 of the Indian Penal Code. That case ended in the acquittal of the accused persons on May 10, 1957. On June 28, 1957 an application was made in the Magisrate's court under s. 4 76 of the Code of Criminal Procedure alleging that this appellant and some of the other witnesses, including Mayadas Khanna, examined for the pro-secution in that case had "given false evidence and/or have fabricated false evidence for the purpose of being used in proceedings before the Court and have used false and or fabricated evidence as genuine and/or have forged document and/or have used as genuine forged document and each of the accused has abetted others in commission of these offences," and praying that after the necessary enquiry complaint be made to the Chief Presidency Magistrate against them for the offences committed by these acts. It appears that the learned Magistrate Mr. Jahaogir Kabir who had disposed of the criminal case against Chamanlal Mehra was no longer available and the application under s. 4 76 was transferred by the Chief Presidency Magistrate to the file of Mr. J.M . .lilir, Presidency Magistrate, for disposal. For this

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p~rpos; the Chief Presidency Magistrate nominated Mr. J. M. Bir as successor of the trying Magistrate. Mr. Bir wa!: of opinion that s. 479A of the Code of Criminal Procedure was complete bar against any action beini~ taken by him in respect of this appellant and ot lters who were merely witnesses on the side of the complaint in the criminal case. He therefore directed complaipt to be lodged only against Mayadas Khanna_, the complainant, in the criminal case under s. 504 and s. 506 of the Indian Penal Code and rejected the application as against the rest.

On appeal by Chamanlal Mehra against the Magistrate's refusal to make complaint against the other persons the High Court of Calcutta held that s. 479-A of the Code of Criminal Procedure had no applicatiOJ11 to the offence of committing forgery or being party to criminal conspiracy to commit forgery. The High Court considering it expedient in the inte:rests of justice that complaint should be made agaiinst this appellant in respect of an offence under s. 467 and s. 467 /120-B of the Indian Penal Code that he appeared to have committed, set aside the order of the Magistrate in respect of this appel-lant and made an order that such complaint be made,

The correctness of the High Court's view that

s. 4 79A has no application to offences under s. 467 ands. 467/120B and does not bar an action being. taken ag<linst witness under s. 476 of the Code of Criminal Procedure for such offences is challenged before us. The relevant portion of s. 4 79A which was inserted in the Code of Criminal Procedure by the Ame1adment Act or 1955 runs thus :-

"Nothwithstanding

anything contai111ed inclusive, when any

in sections 4 76 to 4 79 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as witness

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has intentionally given false evidence in any stage of the judicial proceedings or has intentionally fabricated false evidence for the purpose of being med in any stage of the judicial proceeding, and that, for the eradica· tion of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be pro· secuted 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, re· cord finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make 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 Magistrate of the first class having j uris· diction ............ ''

There is divergence of judicial opinion on the question whether if action could have bee!l taken by the criminal court under s. 4 79A but was not taken action can still be taken under s. 4 76 of the Code of Criminal Procedure. But that question does not arise for consideration before us. The question here is : Assuming that where action could have been taken under s. 4 79A of the Code of Criminal Pro• cedure but was not taken by the criminal court con· cerned, for offences of giving false evidence in any stage of judical proceeding or for intentional fabri· cation of false evidence for the purpose of being used in any stage of judicial proceeding, no action can be taken under s. 476 of the Code of Criminal Pr~cedure, is it further correct to say that no such act10n under s. 476 of the Code of Criminal Procedure can be t~ken even in r~spect of offences of forgery or consp!!acy to commit forgery ?

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We !!lo not see any reason why this should be so. The special procedure of s. 4 79A is prescribed only for the prosecution of witness for the act of giving false evidence in any stage of judicial pro· ceedings or for fabrication of false evidence for the purpose of being used in any stage of judicial pro-. ceeding. There is nothing in the section which pre: eludes the application of any other procedure pre· scribed by the Code in respect of other offences. In applying the principle that special provision pre· vails over general provision, the scope ef the special provision must be strictly construed in order to find out how much of the field covered by the general provision is also covered by the special provision. Examining the special procedure prescribed by s. 4 79 in that light, it is important to notice that the act of intentionally giving false evidence in any stage of judicial proceeding and the act of fabricat-ing false evidence for the purpose of being used in any stage of judicial proceeding mentioned in s. 4 79A 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 appears clear to us therefore that it is pro-secution in respect of s. 193 of the Indian Penal Code and cognate sections in Chapter XI that is dealt with under s. 4 79A. If the legislature had intended that the special procedure would apply to offences other than offence under s. 193 of the Indian Penal Code and cognate sections in Chapter Xl it would have used clear words to that effect. It will be unreasonable to read into s. 4 79A the meaning that where person who appears to have committed an offence under s. 193 of the Indian Penal Code-by giving false evidence or fabricating false evidence-appears to have committed some other offence also, say, forgery, for the very purpose of fabricating false evidence, complaint for such other offence also

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can be made under s. 479A of the Code of Criminal Procedure.

We are therefore of opinion thats. 479A has no application to prosecution for offences other than an offence under s. 193 and cognate sections in Chapter XI and that as regards other offences ss. 4 76, 4 77, 4 78 and 4 79 continue to apply even after the enactment of s. 4 79A.

Whether the High Court is right or wrong in its view that the appellant appeared prirna aoie to have committed offences under s. 467 and s. 467/l20B of the Indian Penal Code has not been argued before us and we express no opinion either way on that matter.

The appeal is dismissed.

Appeal dismissed .

CHALi !\GULLA RAMACHANDRAYY

BOPPANA SATYANARAYANA & OTHERS

(P. B. GAJENDRAGADKAR, K. N. WANCHOO

and K. C. DAS GUPTA JJ.)

Part performance-Transfer of intere•t in the property under contract-Absence of registered instrument-Indian statu-tory requirement-Engli•h Equitable Doctrine-Applic,1bility-Transfer of Property Act, 1882 (Act 4 of 1882), s. 5JA.

The plaintiffs brought suit for partition, two of them claimed to be the reversioners of Chandrappa and the third purchaser of the interest of the reversioners, defendants 4, 5 and 7. They were thus entitled to 5/6th share of the pro-perties while the 6th defendant was entitled as reversioner of Chandrappa to the remaining I /6th share. The property was in the possession of the three sons of Nagayya, the first three

1963 Raghubir P•asai DudhewaUa •• Clumanlal Mehra Dos G.pta/,

1963 MaJ10