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Judgment
B.P. Jha, J.—I shall dispose of Criminal Revision Nos. 1003 and 1481 of 1970 by a common Judgment as they arise out of the complaint dated the 21st of September, 1968, lodged by Shri Lakshmi Narain Varma, Munsif, 2nd Court, Muzaffarpur. The facts are these :�Baldeo Kuer (petitioner in Criminal Revision No. 1003 of 1970) instituted Title Suit No. 102 of 1963 before the Munsif, 2nd Court, Muzaffarpur. The title suit was dismissed in default. Shri Baldeo Kuer filed an application under Order 9, Rule 9 of the CPC for restoring the title suit. That application was registered as Miscellaneous Case No. 45 of 1966. In the aforesaid miscellaneous case, notice was issued and served upon Munsi Kuer (opposite party no. 2 in Criminal Revision No. 1003 of 1970) and petitioner no. 1 in Criminal Revision No. 1481 of 1970). Baldeo Kuer swore an affidavit on 25th November, 1966, proving service of notice on Munshi Kuer in Miscellaneous Case No. 45 of 1966 This affidavit of Baldeo Kuer is dated 25.11.66 is at file ''C'' at page 187 of the record of title suit. This affidavit is the subject matter of the present complain petition.
On 6th May, 1967, Munshi Kuer filed a petition before the Munsif alleging therein that Baldeo Kuer had fabricated a false affidavit in respect of the service of notice on Munshi Kuer on 11th October, 1966. This affidavit was treated as Miscellaneous Case No. 21 of 1967.
By the order, dated 17th August, 1968, Shri Lakshmi Narain Varma, Munsif, 2nd Court, Muzaffarpur, disposed of Miscellaneous Case No. 45 of 1966. By the order, dated 17th August, 1968, the learned Munsif refused to restore the title suit and dismissed the petition filed by Baldeo Kuer. In this order, the learned Munsif did not give any finding to the effect that Baldeo Kuer had fabricated false evidence in the affidavit dated 25.11.1966.
In view of the complaint of Munshi Kuer, the learned Munsif initiated an enquiry u/s 476 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ''the Code'') in Miscellaneous Case No. 21 of 1967. By the order, dated the 14th of September, 1968, the learned Munsif passed an order u/s 476 of the Code to lodge a a complaint against Baldeo Kuer for swearing false affidavit on 25th November, 1966. In fact, the learned Munsif lodged a complaint on 21st September, 1968, before the Sub-divisional Magistrate, Muzaffarpur, u/s 181, 182 and 193 of the Indian Penal Code. On 14th November 1968, the Subdivisional Magistrate took cognizance of the offence under Sections 181, 182 and 193 of the Indian Penal Code against Baldeo Kuer. Baldeo Kuer filed an application before the Sessions Judge on 20th November, 1968, which was later on, treated as a petition of appeal u/s 476(B) of the Code. The learned Sessions Judge, by his order dated 16th April, 1970, was pleased to directed the complainant to withdraw the complaint in respect of offences under Sections 181 and 193 of the Indian Penal Code. Learned Sessions Judge was pleased to refuse the withdrawal of the complaint in respect of the offence u/s 182 of the Indian Penal Code.
Against the order of Sessions Judge, both Baldeo Kuer and Munshi-Kuer preferred criminal revision petitions before this Court. The grievance of Baldeo Kuer (Petitioner in Criminal Revision No. 1003 of 1970) Is that the Sessions Judge has erred in refusing to withdraw the complaint in respect of the offence u/s 182 of the Indian Penal Code and that of Munshi Kuer (Petitioner in Criminal Revision No. 1481 of 1970) is that the Session Judge has erred in allowing withdrawal of the complaint in respect of the offences under Sections 181 and 193 of the Indian Penal Code.
Learned Counsel for the petitioner in Criminal Revision No. 1003 of 1970 has relied on a decision of the Supreme Court in the case of (1) Baban Singh and Another Vs. Jagdish Singh and Others, . In the case, their Lordships held as follows:�
Section 479-A lays down a special procedure which applies to persons who appear as witnesses before Civil, revenue or criminal Courts and do one of two things: (i) intentionally give false evidence in any stage of the judicial proceeding, or (ii) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceeding. The first refers to an offence u/s 191/193 and the second to that u/s 192/193 of the Indian Penal Code. In respect of such offences when committed by a witness, action u/s 479-A alone can be taken. The appellants were witnesses in the enquiry in the High Court and they had fabricated false evidence. If any prosecution was to be started against them the High Court ought to have followed the procedure u/s 479-A of the Code of Criminal Procedure. Not having done so, the action u/s 476 of the Code of Criminal Procedure was not open because of Subsection (6) of Section 479-A and the order under appeal cannot be allowed to stand.
In the opinion of their Lordships of the Supreme Court, Section 479-A lays down a special procedure in respect of persons who have intentionally given false evidence in any stage of the judicial proceeding or who have Intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. The present case will come in the latter part. Section 479-A lays down that, if any witness has intentionally given a false evidence or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, in that case, the Court must record a finding to the effect that it is expedient in the interest of justice that such witness should be prosecuted for the offence which appears to have been committed by him. In the present case, while the alleged false affidavit was sworn on the 25th of November, 1966 in Miscellaneous Case No. 45 of 1966, the learned Munsif, while passing the order dated 17th August, 1968, in Miscellaneous No. 45 of 1966, did not come to the conclusion that Baldeo Kuer swore a false affidavit on 25.11.1966 or he fabricated a false evidence for being used in any stage of the judicial proceeding. In the absence of any finding, the Munsif had no jurisdiction to initiate a proceeding u/s 476 of the Code. The Court can initiate a proceeding u/s 479-A of the Code in respect of the offences mentioned in Section 479-A of the Code, provided the Court finds that the witness has given intentionally false evidence or fabricated any false evidence in any stage of the judicial proceeding. If this finding would have been given in the order passed in Miscellaneous Case No. 45 of 1966 on 17.8.1968, the court could have initiated proceeding u/s 479-A of the Code In the absence of any such finding as provided u/s 479-A of the Code, the learned Munsif had no jurisdiction to initiate proceeding u/s 476 of the Code. It is for this reason that the Supreme Court set aside the order in question in Baban Singh''s case (supra). Their Lordships definitely held that, if any prosecution was to be launched against them, the Court below ought to have followed the procedure laid down in Section 479A of the Code. The Supreme Court further held "Not having dune so, the action u/s 476 of the Code of Criminal Procedure was not open because of Sub-section (6) of Section 479-A and the order under appeal cannot be allowed to stand." It is relevant at this stage to quote Sub-Section (6) of Section 479-A of the Code, which is as follows :� No proceedings shill he 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.
On a perusal of Sub-section (6) of Section 479A, it is clear that it prohibit the jurisdiction of the Court to initiate any proceedings under Sections 476 to 479 of the Code. In the present case, the procedure laid down u/s 479 A of the Code was required to be followed. In the present case, it was not open to the Munsif to initiate any proceeding u/s 476 of the Code. In other words, if any one gives any false evidence or fabricates any false evidence at any stage of the judicial proceeding, the Court will have to follow the procedure laid down in Section 479-A of the Code and if the procedure laid down in Section 479-A of the Code has not been followed, the Court will have no jurisdiction to initiate any proceeding u/s 476 of the Code. It is, therefore, clear that before initiating any proceeding u/s 476 of the Code, the Court will have to follow the procedure laid down in Section 479-A of the Code. In the present case, the procedure laid down in Section 479-A was not followed and, as such, the Munsif had no jurisdiction to initiate proceeding u/s 476 of the Code in Miscellaneous Case No. 21 of 1967 In the circumstances, I hold that the Munsif has erred in his order dated 14th September, 1968, in lodging complaint against Baldeo Kuer. I also hold that the Munsif has erred in lodging the complaint on 21st September 1968 against Baldeo Kuer. I also hold that the Subdivisional Magistrate has erred in taking cognizance against Baldeo Kuer on 14. 11. 1968 in respect of the offences under Sections 181, 182 and 193 of the Indian Penal Code.
In the result, I allow Criminal Revision No. 1003 of 1970 and direct the complainant to withdraw the complaint petition lodged on the 21st of September, 1968. I set aside that portion of the order of the Sessions Judge by which he refused to direct withdrawal of the complaint in respect of the offence u/s 182 of the Indian Penal Code. I dismiss Criminal Revision No. 1481 of 1970 which has been filed by Munshi Kuer.