Jai Krishna Agarwalla vs Chandrabhan Mishra

R.M. Datta, J.—The application herein has been made on behalf of the Plaintiff jai Krishna Agarwalla for an order, inter alia, for sanction for prosecution of Chandrabhan Mishra on the ground of making false statements in two affidavits filed in the previous application in this proceeding.

The facts leading to this application, inter alia, are that by a consent decree dated March 28,1961, one Muraridas Agarwalla was appointed the manager of the property in suit with power to collect rents, issues and profits, thereof and to pay up the decretal amount of Rs. 18,000 from out of such collections in the manner as provided in the consent decree. Under the consent decree; neither the Plaintiff nor the Defendant would have the right to induct any tenant or sub-tenant without the consent of the manager and likewise the said manager would have no right, to induct any tenant or sub-tenant without the consent of, the Plaintiff and the Defendant. Incidentally, it should be mentioned also that both the Plaintiff and the Defendant were are jointly interested in the said premises as lessees thereof. It is also provided that so long the said manager would remain in office or till the decretal amount would be fully paid off, neither the Plaintiff nor the Defendant would have any right to collect of realise the rents from the tenants in respect of the said premises or to grant any rent receipt in respect thereto.

In course of his functioning as such manager the said Muraridas Agarwalla made a complaint against one Golab Chand Hirawat in the criminal Court alleging that Hirawat had, trespassed into three of the godowns in the said premises on February 28, 1972-On April 7, 1972, Hirawat filed a petition before the Magistrate stating, inter alia, that he was lawfully inducted into the said premises as a tenant by the Defendant Mishra and in support thereof filed two receipts granted by Mishra on January 15, 1972. On the basis of the said statement the Magistrate directed restoration of possession to Hirawat of the said premises upon certain terms.

Mishra then made an application, inter alia, for removal of the said manager and for appointment of an independent person in his place and stead. Mishra alleged therein that the said manager had been collecting all the rents, issues and profits since March 1961 and that Mishra complied with the direction given in the said consent decree by not collecting any rent, issues and profits. Jai Krishna Agarwalla in his affidavit-in-opposition denied the said allegation of Mishra and asserted that Mishra had wrongfully given possession of the three newly built rooms of the said premises to a person without the knowledge and consent of the Plaintiff arid of the said manager and made unlawful gains thereby. To that Mishra filed an affidavit-in-reply thereto and stated as follows:

I deny that I have given or could give since decree such possession of any room to any person as alleged and/or that I made or could make any unlawful gain as alleged or at all.

In course of hearing of that application Sarkar J, directed Mishra to deposit a sum of Rs. 6,000 with the Plaintiff''s Solicitors and by his order discharged the said manager from further acting as such manager after payment of the said sum of Rs. 6,000. Thereafter, on July 11,1973, the manager made a petition in the said trespass action for an order for allowing him to take photographs of the said two stamped receipts which Were filed by Hirawat in the said Court. An order was made as prayed for and the manager obtained photographs of the said two Hindi documents. Thereupon on August 13, 1973, the present application was made.

On behalf of the Petitioner it is contended by the constituted Attorney, one Promode Kumar Agarwalla, that the photostat copies of the said two Hindi receipts would clearly show that the same were signed by the Defendant Chandrabhan Mishra on revenue stamps and that from the statements made in the said two documents it would be apparent that the said statements made in the petition and in the affidavit-in-reply were false and such false statements were made deliberately and intentionally thereby commit-ting an offence affecting the administration of justice.

It is further contended that the Respondent Chandrabhan Mishra had not come forward to pledge his oath before this Court. His son Bhubaneswar Mishra has affirmed an affidavit-in-opposition wherein he has denied that the Respondent had inducted any tenant or granted any receipt as alleged or at all or had ever granted any receipt as alleged or at all. He contends that documents annexed to the petition were not receipts at all but were merely records of the consent given by the Defendant to the said manager to induct the said Gulab Chandra Hirawat and G.C. Industries as tenants under him. The explanation given by him is to the following effect:

In January 1972, one Gulab Chand Hirawat approached the manager and requested him for being allowed to take on rent the said three shop-rooms.... In terms of the said decree the manager referred the matter to the parties and asked for their consent for inducting the said Gulab Chand Hirawat as a tenant of the joint estate inter alia on the above terms.... At the request of the manager the Defendant gave his consent to the same as also did the Plaintiff Petitioner.... The said Gulab Chand Hirawat, therefore, requested the manager and the parties for a memorandum in writing recording the agreement of tenancy which was to take effect on and from February 1, 1972. The manager undertook to have the repair work on the said shop-rooms completed. In the presence of the manager and the Plaintiff''s son Promode Kumar Agarwalla and with their consent the Defendant signed the writing which have been annexed to the petition. The same merely recorded the agreement to let. Thereafter, the said writings were made over to the Plaintiff''s said son for being signed as a token of his consent. I apprehend that the Petitioner is wrongfully and illegally distorting facts and pretending ignorance to suit his purposes.... It is emphatically denied that the Defendant inducted any tenants or granted any rent receipt as alleged or at all. It is emphatically denied that the writings show (as has been implied) that the Defendant inducted any tenants or granted any rent receipts as alleged or at all.

On behalf of the Respondent Chandrabhan Mishra a preliminary point was taken on the maintainability of this application, It is urged that in the facts and circumstances of this case the complaint herein could be made by the Court only u/s 479A of the Code of Criminal Procedure, 1898 and not u/s 476 of the said Code. Accordingly, the complaint could have been made by the Court at the time of the final order passed by Sarkar J. and not after the disposal of the said application for removal of the said manager wherein the said alleged false statements were alleged to have been made. It is further urged that since Section 479A should apply to this case, the bar of Sub-section (6) thereof would stand in the way of the complaint being made u/s 476 of the Code of 1898, because if Section 479A would apply then no procedure could be taken under Sections 476 to 479 both inclusive as provided under Sub-section (6) of Section 479A. In other words, the Court before which the witness gave false evidence could make the complaint at or before the passing of the decree or the final order.

Dr. Das, appearing on behalf of the Petitioner, firstly relied on the case of Shabir Hussein Bholu Vs. State of Maharashtra, . That was a case where Shabir was the witness for the prosecution at the trial of one Rafique Ahmed before the Additional Sessions Judge, Greater Bombay, for offences of murder and abatement of murder, along with two other persons. When the Appellant was examined as a witness before the committing Magistrate he deposed that in his presence Rafique Ahmed had stabbed the deceased while he was running away, but when he was examined at the trial before the Court of Sessions three months later, the Appellant had contradicted himself by saying that he was standing on the threshold of his house when he saw Rafique and his associates coming from the direction of the Muhammedan burial ground. According to him, he did not see anything else excepting that one of them had a dagger while the others had only sticks with them. In cross-examination he Stated that it was not true that he actually saw Rafique stabbing the deceased. The jury returned a verdict of not guilty against Rafique Ahmed in respect of the offence u/s 302, Indian Penal Code, but found him guilty u/s 304, first part. After the trial was over, the learned Additional Sessions judge came to the conclusion that the proceeding should be taken against the Appellant for intentionally giving false evidence. He, therefore, recorded a separate order directing the Registrar to take necessary steps for prosecution of the said witness Shabir Hussain for the offence of perjury. At the trial of the Appellant before the Chief Presidency Magistrate an objection was raised on his behalf that the provisions of Section 479A had not been complied with by the Additional Sessions Judge and accordingly, the Chief Presidency Magistrate could not take cognizance of the offence. The Chief Presidency Magistrate upheld the objections and discharged the Appellant. The High Court set aside the order of discharge and directed the Chief Presidency Magistrate to proceed with the complaint. The Supreme Court held that the Chief Presidency Magistrate was right in discharging the Appellant.

That was a case when in course of the trial the witness gave false evidence. It was a case where Section 479A applied and as such, special procedure laid down therein was to be followed. The Supreme Court observed (1):

But it was open to the learned additional Sessions Judge after having accepted the verdict to say whether the evidence tendered at the trial was true or false. He has not chosen to do so. But for considering the applicability of Section 479A(1) what has to be borne in mind is that in a jury trial it is possible for the Judge to come to a conclusion that the statement made at the trial is false. If he comes to that conclusion, then, as rightly observed in Badullah''s case, AIR. 1961 All. 397, he has no Option but to proceed u/s 479-A(1), Code of Criminal Procedure.

The next case which was cited by Dr. Das was the case of Kuppa Goundan and Another Vs. M.S.P. Rajesh, . In this case the Supreme Court construed Section 479A(1) and (6) and also Section 476 of the Code of Criminal Procedure and held that if materials were not available and they were placed before the Court after judgment and order was passed in the trial where false evidence had been given, then Section 479A had no application because the Court would not be in a position to form an opinion that a particular witness had been giving false evidence at the relevant time. Accordingly, Section 479A(6) could not be invoked as a bar to the further proceedings. Under such circumstances, the prosecution of the person, who has given false evidence when materials are produced after judgment, would be valid u/s 476 and would not be affected by the bar u/s 479A(6) of the Code of Criminal Procedure, 1898.

On the basis of this judgment Dr. Das argued that since the photostat copies were available after the order was passed by Sarkar J. and since only on the basis of the said materials the statements could be proved to be false, that was the reason why the prosecution could be directed u/s 476 and the language of Clause (6) of Section 479A could not operate as a bar. Regarding the decision of the Supreme Court in Shabir Hussain v. State of Maharashtra Supra (821) it was observed in the above case that the principle of that decision did not afford any assistance to the Appellant in the case of Kuppa Goundan V. M.S.P. Rajesh (Supra) and that the ratio of that decision was not applicable to the said case Kuppa Goundan v. M.S.P. Rajesh.

Dr. Das has next contended that Section 479A has no application to the facts and circumstances of this case because this is not a case where the witness had appeared before the Court and gave false evidence. In this case certain statements were made in the petition and in the affidavit-in-reply which were sought to be proved to be perjury by reason of the contradictions which were alleged to have been made by the person in a document the photostat copy whereof was produced at a later stage. In support of his above contention, Dr. Das refers to the case of Kalipada Maity and Others Vs. Sukumar Bose, , where a Bench of this Court held:

Section 479A, Code of Criminal Procedure is, however, limited to persons appearing before any Court as witnesses and the fact that the terms ''witnesses'' by itself may include persons who have made affidavits filed before any Court, cannot be taken to mean that such persons are also persons appearing before any Court as witnesses.

In the above case the decision of the Supreme Court in Ranjit Singh Vs. The State of Punjab, , was referred to and discussed and the Division Bench dealt with the point whether a person giving evidence in the form of an affidavit was a person appearing before the Court as a witness and came to the decision as set out hereinabove.

The above decision of the Division Bench was relied on by a Bench of the Madras High Court in the case of In re S.R. Ramalingam AIR 1965 Mad. 100 and it was held that the proper procedure to follow in cases of false evidence given in the form of affidavits would be the one prescribed by Section 476 of the Code of 1898.

The last case that was cited on this point was the Supreme Court case of Baban Singh and Another Vs. Jagdish Singh and Others, , where also it was observed:

Section 479A 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.... In respect of such offences; when committed by a witness, action u/s 479A alone can be taken.

Considering all these cases I have no hesitation to uphold the contentions of Dr. Das to hold that where persons make false statements in affidavits or where materials of evidence are not available till judgment, the proper procedure to be followed to make the complaint is u/s 476 and not u/s 479A of the Code of Criminal Procedure, 1898 and I, accordingly, hold that the present application is maintainable u/s 476 of the Code of Criminal Procedure.

Coming to the merit of the case, it appeals, that the petition herein has been verified by the Petitioner''s son. In a case of this nature the petition ought to have been verified by the Plaintiff himself.

In the case of Raj Kumar Dhar and Others Vs. Colonel A. Stuart Lewis, , it was observed that the verification of pleadings was an important matter which might have various serious consequences, as in the case of false verification the person verifying might be liable to criminal prosecution and that where the plaint contained serious allegations of fraud, falsification of account, culpable negligence etc. against the Defendants and the verification was sought to be made by an agent under a power-of-attorney by merely putting on record the power-of-attorney, it was considered wholly insufficient for the purpose.

Then again, it is contended that the most vita paragraph being para. 15 of the petition wherein it is alleged that the Petitioner had made enquiries and discovered that the said Chandrabhan Mishra inducted a tenant, had been verified as true to the knowledge of the deponent whereas the same should have been verified as based on information of the person concerned from whom such enquiries were made and facts discovered. It is contended that in the absence of such information the Court should not rely on the said statement to make an order of the nature as prayed.

Mr. Ghose next contends that the document itself, being an unofficial translation of the photostat copy, does not show that any money had been realised nor is it a case that the tenant Golab Chand Hirawat ever paid any money to the said Chandrabhan Mishra. The receipt itself does not show that it is a rent receipt because the receipt is dated January 15, 1972 and it is provided in said receipt that rent would start from February 1, 1972, after the construction of the shop-rooms would be completed. The receipt can at best be construed as a writing containing some proposed terms. That would, prima jade, show that Hirawat was not in possession of the said premises on that date. Moreover, the explanation sought to be given by Chandrabhan Mishra as to and under what circumstances the said receipt dated January 15, 1972, was granted, is a matter which is not, on the face of it, to be disbelieved unless oral evidence is taken on the same. As to whether such explanation is true or false can only be decided after the oral evidence is adduced.

On behalf of the Respondent it is next contended that this is a discretionary order and in the facts and circumstances of this case u should be held that it is not expedient in the interest of justice that an enquiry should be made about any alleged perjury. It is urged that the application is utterly mala fide as will appear from the facts as stated in sub-para, (m) of para. 8 of the affidavit-in-opposition of Bhubaneswar Mishra affirmed on September 25, 1973. It is stated therein that by an order of this Court the said manager was directed to be removed. Thereafter, the Plaintiff and the said manager caused a suit to be brought by one of the sons of the Plaintiff, named Kishore Kumar Agarwalla against the Plaintiff and the said manager and the Defendant, inter alia, for a declaration that the leasehold interest in the said property at No. 59 Kings Road, Howrah, was obtained with the funds belonging to the joint family consisting of the Plaintiff and his sons and that the Defendant Chandrabhan Mishra was merely a benamder and had no interest of his own in the said property. In the said suit, at the instance of the Plaintiff''s said son, the said Murari Das Agarwalla was again appointed as the Receiver of the said property by an ex parte order, but on contest by the Defendant the said order was vacated and the application for the appointment of a receiver was dismissed. An appeal has been preferred from the said order of dismissal which is now pending. Accordingly, the learned Counsel has submitted, the present proceeding is merely another attempt by the Plaintiff to force the Defendant to submission. In this connection reliance has been placed on the case of Patel Laljibhai Somabhai Vs. The State of Gujarat, , it is observed:

The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those section to start criminal prosecutions on frivolous, vexatious or insufficient grounds inserted by a revengeful desire to harass or spite their opponents. These offences have been selected for the Court''s control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised.... The offences about which the Court alone, tot the exclusion of the aggrieved private-.parties is, clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a-proceeding in that Court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party.

Considering all these points, I think, in the interest of justice the discretion should be exercised not in favour of making a complaint but against the Plaintiff herein by upholding the contentions made on behalf of the Respondent Chandrabhan Mishra. That being the position, I dismiss this application with costs.