# BABAN SINGH AND ANR v. JAGDISH SINGH & ORS

- **Citation:** [1966] 3 S.C.R. 552
- **Court:** Supreme Court of India
- **Decided:** 1966-02-08
- **Case number:** CRIMINAL APPELi.All! JUR1smcnoN : Criminal Appeal No. 74 of 1964
- **Bench:** K. Subba Rao, M. Hidayatullah, R. S. Bachawat Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baban-singh-and-anr-v-jagdish-singh-ors-3598
- **Pages:** 5

## Headnote

Indian Penal Code, 1860, ss. 191, 192 and 199-F/llng affidavit containing false statements before High Court-Offence under which section
commuted.
Code of Criminal Procedure, ss. 476 and 419-A(6)-0fiences by witnesses under ss. 191 and 192 Penal Code-S. 479..A app/le, and octkin
A
B
wnder s. 476 c1111110t be taken.
C
The appellants made affidavits in the High Court dcnyinii receipt of
money '1}' way of compromise in a first appeal pending before
that
Court. The High Coun ordered the Registrar to hold an enquiry. The
Resistrar after recording the evidence of the parties reported that the
appellants' denial of receipt of money was false. Thereafter an application
was made to the High Court under s. 476 of the Code of Criminal Procedure which was kept pending and taken up after the appeal was decided.
D
Tho Hiab Coun held that tho olfence committed by tho appellan:a -
ou
under 8. 199 Indian Penal Code and ordered the Registrar to file a complaint.
The
appellanta
came
to
this
Coun
under
1. 4768.
The questions
for consideration were;
(I)
whether
the otrence
committed by the appellants fell under s. 191 and 192 of the Penal Code
or under 8. 199, and (2) whether proceedings under s. 479-A could be
llleo against the appellants, for if they could be, then action ouiibt to
have been taken under that section and s. 476 could not be invoked.
E
HELD : (i) When the appellants made declarations in their affidavits
which were tendered in tho High Coun to ho taken into consideration ~
intended the statements to appear in evidence, and so appearing, to came
tho coun to ontenain an erroneous opinion rqarding the compromile.
Their offence came within the words of ss. 191/192 rather than a. 199 of
Ille Indian Penal Code. (556 CJ
(ii) In respost of offences under ss. 191 and 192 of tho Indian Penal
Code when committed by a witness action under s. 479-A alone can be
taken and action under s. 476 is ruled out because of sub.,., (6)
of
1. 479-A. [SS6 E..GJ
CRIMINAL APPELi.All! JUR1smcnoN : Criminal Appeal No. 74 of
1964.
Appeal from the judgment and order dated October 3, 1963
of the Patna High Court in Criminal Misc. Case No. 366of1956.
Naunit Lal, for the appellant.
The respondent did not appear.

## Text

BABAN SINGH AND ANR.
v.
JAGDISH SINGH & ORS.
February 8, 1966
[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT JJ.j
Indian Penal Code, 1860, ss. 191, 192 and 199-F/llng affidavit containing false statements before High Court-Offence under which section
commuted.
Code of Criminal Procedure, ss. 476 and 419-A(6)-0fiences by witnesses under ss. 191 and 192 Penal Code-S. 479..A app/le, and octkin
A
B
wnder s. 476 c1111110t be taken.
C
The appellants made affidavits in the High Court dcnyinii receipt of
money '1}' way of compromise in a first appeal pending before
that
Court. The High Coun ordered the Registrar to hold an enquiry. The
Resistrar after recording the evidence of the parties reported that the
appellants' denial of receipt of money was false. Thereafter an application
was made to the High Court under s. 476 of the Code of Criminal Procedure which was kept pending and taken up after the appeal was decided.
D
Tho Hiab Coun held that tho olfence committed by tho appellan:a -
ou
under 8. 199 Indian Penal Code and ordered the Registrar to file a complaint.
The
appellanta
came
to
this
Coun
under
1. 4768.
The questions
for consideration were;
(I)
whether
the otrence
committed by the appellants fell under s. 191 and 192 of the Penal Code
or under 8. 199, and (2) whether proceedings under s. 479-A could be
llleo against the appellants, for if they could be, then action ouiibt to
have been taken under that section and s. 476 could not be invoked.
E
HELD : (i) When the appellants made declarations in their affidavits
which were tendered in tho High Coun to ho taken into consideration ~
intended the statements to appear in evidence, and so appearing, to came
tho coun to ontenain an erroneous opinion rqarding the compromile.
Their offence came within the words of ss. 191/192 rather than a. 199 of
Ille Indian Penal Code. (556 CJ
(ii) In respost of offences under ss. 191 and 192 of tho Indian Penal
Code when committed by a witness action under s. 479-A alone can be
taken and action under s. 476 is ruled out because of sub.,., (6)
of
1. 479-A. [SS6 E..GJ
CRIMINAL APPELi.All! JUR1smcnoN : Criminal Appeal No. 74 of
1964.
Appeal from the judgment and order dated October 3, 1963
of the Patna High Court in Criminal Misc. Case No. 366of1956.
Naunit Lal, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Hldayatullah, J.-This is an appeal under s. 476-B of the Code
of Criminal Procedure by one Baban Singh and his wife Dharichhan
Kuer against a judgment and order of the High Court at Patna
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BABAN v. JAGDISH (Hldayatullah, !.)
553
ordering the Registrar to file a complaint against them under s. 199
of the Indian Penal Code for making false affidavits. The respondents are persons who had moved the High Court under s. 476
of the Code for the prosecution of the appellants in the following
circumstances.
Jagdish Singh and Parmhans were appellants in F. A. 301 of
1952 in the High Court at Patna. Mst. Dharichhan Kuer was
respondent No. 13 in that appeal. During the pendency of the
appeal a compromise was said to have been arrived at between
Dharichhan Kuer on the one hand and Jagdish Singh and Parmhans
on the other. Dharichhan Kuer and Jagdish Singh swore an affidavit on June 22, 1953 in support of the petition for compromise
which was filed in the High Court. Baban Singh's brother identified Dharichhan Kuer before the Oath Commissioner and Rs. 4,000
were paid to Dharichhan Kuer under the terms of the compromise in the Commissioner's presence. Dharichhan Kuer also
passed a receipt and her thumb impression was identified by Baban
Singh's brother. The petition of compromise was filed in court
on July 13, 1953. The same day Baban Singh swore an affidavit
(Ex. B) denying the compromise or that his wife had received
Rs. 4,000.
This affidavit was filed in the High Court on July 31,
1953. On September 9, 1953 Dharichhan Kuer also filed an affidavit (Ex. A) in support of her husband.
As the compromise was in dispute the High Court ordered the
Registrar to hold an enquiry. Nine witnesses were examined on
behalf of Jagdish Singh and Parmhans including the Oath Commissioner. Dharichhan Kuer and her husband Baban Singh gave
evidence on their own behalf. The Registrar reported on July 14,
1954 that the compromise was genuine and that Dharichhan Kuer
had, in fact, sworn the affidavit before the Oath Commissioner and
had received Rs. 4,000. B. N. Rai and Kanhaiya Singh, JJ. accepted the report by their order dated October 5, 1956. One of the
terms of the rompromise was that if Dharichhan Kuer resiled from
it the amount of Rs. 4,000 would be refunded with costs
Rs. 500. Dharichhan Kuer deposited this amount in court on
October 9, 1956. The first appeal was then heard and disposed
of.
The application under s. 476 out of which this appeal has a,risen
was filed during the pendency of the first appeal and was taken
up for hearing after the appeal was disposed of. A question
arose whether a c@mplaint for prosecution of Baban Singh
and Dharichhan Kuer for an offence under s. 193, Indian Penal
Code could be filed in the High Court because Baban Singh and
Dharichhan Ku.er had deposed not before the court but before
the Registrar. Further s. 479A (to which we shall refer presently)
was introdueed from January l, 1956 and thus on October 5,
5 54
SUPREME COURT REPORTS
[I 966] 3 s.c.R.
1956, when the High Court accepted the report of the Registrar,
it was in force. The Divisional Bench did not consider taking action
under s. 193 because of s. 479A and it appears that the counsel
for Jagdish Singh and Parrnhans also conceded that no prosecution could
take
place under that section. The High Court,
however, considered whether action should be taken in respect
of the two affidavits (Exs. A and B). It is not necessary to refer
to the statements in these affidavits because we are not considering
whether they were true or false. It was contended before the High
Court that a prosecution under s. 199 of the Indian Penal Code
would be equally covered by s. 479A and as the procedure under
that section was not followed an application for prosecution under
s. 476 was barred. This contention was not accepted by the High
Court and after going into the expediency of the prosecution
the learned Judges ordered the Registrar of the High Court to
file a complaint before the appropriate authority for the prosecution of the appellants. The appellants now appeal as of right
under s. 4768.
At the hearing before us there was no representation on
behalf of the respondents. Although notices were issued to Jagdish
Singh, Parrnhans and the State Government, none appeared.
On hearing the learned counsel for the appellants we are satisfied that tltis appeal must succeed. The short question in this
case is whether s. 476 could at all be invoked because of the bar
contained in s. 479A sub s. (6). The sixth sub-section, to which
we have referred lays down that no proceedings shall be taken under
ss. 476 to 479 (both 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. 479A. The point to decide,
therefore, is whether proceedings under s. 479A could be taken
against Baban Singh and his wife, for if they could be, then action
ought to have been taken under that section and s. 476 cannot be
invoked. Section 479A, in so far as it is relevant to our purpose,
provides as follows :-
"479-A. Procedure in certain cases of false evidence.-
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( I)
Notwithstanding anything contained in section 476
to 479 inclusive, when any Civil, Revenue or Criminal
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Court is of opinion that any person appearing !'efore
it as a witness has intentionally given false evidence
in any stage of the judicial proceeding or has intentionally fabricated
false evidence .for. ~he purpose. or
being used in any stage of the 1ud1c1al pr~ceedmg,
and that for the eradication of the evils of perjury and
H
fabricati~n 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
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BABAN v. JAGDISH (Hidayatullah, J.)
555
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 therefor and may, if it so thinks
fit, after giving the witness an opportunity of being
heard, make a 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 a Magistrate
of the first class having jurisdiction, and may, if the
accused is present before the Court, take sufficient
security for his appearance before such Magistrate
and may bind over any person to appear and give
evidence before such Magistrate :
Provided that where the Court making the complaint is a High Court, the complaint may be signed
by such officer of the Court as the Court may
appoint.
The learned Judges in the High Court did not take action in
respect of the offence of giving false ·evidence on oath, as defined
in s. 191 and punishable under s. 193 of the Indian Penal Code,
because they were of the opinion thats. 479-A of the Code of Criminal
Procedure would be applicable to that offence even though evidence
was recorded by the Registrar. The High Court selected for action
the offence in relation to the two affidavits holding that prima
facie an offence under s. 199, Indian Penal Code was committed.
That offence is also punishable in the same manner as if false evidence was given. The difference between ss. 191 and 199 is this;
Section 191 deals with statements and declarations falsely made
by a person legally bound by an oath or by an express provision
of law to state the truth. Section 199 deals with statements and
declarations made voluntarily provided they are capable of being
-used as evidence and which the court is bound to receive as evidence.
The matter has to be considered from three standpoints. Does
the swearing of the false affidavits amount to an offence under
s. 199, Indian Penal Code or under either s. 191 or 192, Indian
Penal Code ? If it comes under the two latter sections, the present
prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath.
The only condition necessary is that the declaration must be capable
of being used as evidence and which any court of justice or any
public servant or other person, is bound or authorised by law
to receive as evidence. Section 191 deals with evidence on oath and
556
SUPREME COURT REPORTS
(1966] 3 S.C.R.
s. 192 with fabricating false evidence. If we consider this matter
from the standpoint of s. 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state
the truth because an affidavit is a declaration made under an oath.
The definition of the offence of giving false evidence thus applies to
the affidavits. The offence may also fall within s. 192. It lays
down inter a/ia that a person is said to fabricate false evidence
if he makes a document containing a false statement intending
that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may caus~ any person who,
in such proceeding is to form an opinion upon the evidence, to
entertain an erroneous opinion touching any point material to the
result of such proceeding. When Baban Singh and Dharichhan
Kuer made declarations in their affidavits which were tendered in the
High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing, to cause the court to entertain an erroneous opinion regarding
the compromise. In this way their offence came within the words
of ss. 191/192 rather than s. 199 of the Indian Penal Code. They
were thus prima facie guilty of an offence of giving false evidence
or of fabricating false evidence for the purpose of being used in a
jadicial proceeding.
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 under
s. 191/193 and the second to that under s. 192/193 of the Indian
Penal Code. In respect of such offences when committed by
a witness, action under s. 479-A alone can be taken. The appellants
were witnesses in the inquiry 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 under
s. 479-A of the Code of Criminal Procedure. Not having done
so, the action under s. 476 of the Code of Criminal Procedure was
not open because of sub-s. ( 6) of s. 479-A and the order under
appeal cannot be allowed to stand.
In the result tho appeal succeeds and is allowed. The order
for the prosecution of the appellants is set aside. The complaint,
if filed, shall be withdrawn.
Appeal allowed.
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