# Dhanvantrai Balwantrai Desai v. State of Maharashtra

- **Citation:** [1963] Supp. 1 S.C.R. 501
- **Court:** Supreme Court of India
- **Decided:** 1961-01-18
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhanvantrai-balwantrai-desai-v-state-of-maharashtra-2724
- **Pages:** 14

## Headnote

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
undergone.
These circumstances were borne in mind
by the learned Special Judge when he passed a substantive 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 reductiol) 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 ofOrder 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
1962
Dhanvantrai
Balwantrai Desai
v.
State of Maharashtra
Mudlw/kar, J.
1962
1962
Shabir Huss,.in Bholu
v.
Stat_e of Maharashtra
502 SUPREME COURT REPORTS [1963] SUPP.
justice it is expedient that the person be prosecuted. This opi·
nion and conclusion must be arrived at at the time of the delivery of the judgment or final order in the trial; the court cannot
later on resort to s. 476 and make a complaint against the witnesses.
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. 4 79A 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
1 S.C.R.
SUPREME COURT REPORTS
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 cog

## 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
undergone.
These circumstances were borne in mind
by the learned Special Judge when he passed a substantive 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 reductiol) 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 ofOrder 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
1962
Dhanvantrai
Balwantrai Desai
v.
State of Maharashtra
Mudlw/kar, J.
1962
1962
Shabir Huss,.in Bholu
v.
Stat_e of Maharashtra
502 SUPREME COURT REPORTS [1963] SUPP.
justice it is expedient that the person be prosecuted. This opi·
nion and conclusion must be arrived at at the time of the delivery of the judgment or final order in the trial; the court cannot
later on resort to s. 476 and make a complaint against the witnesses.
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. 4 79A 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
1 S.C.R.
SUPREME COURT REPORTS
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.
1962
Shabir Hus1ein fv.
State of Maharos.
Mudholkar-, ~
1962
" Hussein Bholu
v.
of Maharashtra
udholkar, J.
504 SUPREME COURT REPORTS [1963] SUPP.
It also found the other two accused persons guilty
under s. 304, first part, read withs. 109, I.P.C. After
the trial was over the learned Additional Sessions
Judge came to the conclusion that proceedings should
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
1 S.C.R.
SUPREME COURT REPORTS
505
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 contained 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
1962
Slrabir Hu.r•tin ~
v.
St11.tt of }}fahara
Mu,holko.r,.
1'62
,bir Hussein Bholu
v.
It of Maharashtra
MuCht1lkcr, J.
506 SUPREME COURT REPORTS [1963] SUPP.
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 therefor 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
i S.C.R:.
SUPREME COURT REPORTS
507
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 judjcial 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<1ken- in Jaibir
SiMJh v.
Malkhan Singh(')
\o tqe effect that
s. 479-A was a cbmplete code :in itself for dealing
with all offences which fall withih its ambit.
Learned counsel further relied on the decision in Ba!Vullah v'.
State(') whe,re it was he~d that the provisions of SS. 4 76
and 479-A are 'not co-extensive and ·S. 479-A was
added in ch. 1'XX4V With the 'intention of arming
the dourts with imot_lier weap0\i with which to deal
with the growing" evil of perjury 'ill a more effective
manner. It may be':mentioned, however, that in
-t'his case the question which arose for consideration
·was whether a. Court was required .to p1oceed ··against
a witness U!lder s, 479-A where ·the e:vidence given
by him bc;fore ·that Court was contrf1di.ctory· to the
evidence given by that
witn~~ in a, previous but
separate judicial
proceeding'.~ :As
We shall show
presen~ly, this case· is distinguishable from the one
(I) A.I.R. {1959) All. 744
(S) A.I.R. (1958) AU. SO..
{2) A.I.R. (1962) AIL 251.
(4) A.I.R. (IS61) All. 3U7.
--
..
.J!!fi2
Sfia6ir H1us,i11 Bholu
v.
Stti.t1 of M-.harulctr•
MuihMUr," J.
Jff2
Slr.ahir Huss,in Bh6lu
v.
s1.1 ... f .itah•rashtro
Mud~"• J.
508 SUPREME COURT REPORTS [1963] SUPP.
before us.
Learned counsel
then referred to the
decision in State of BornlH!Y v. Preindas i:>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 4 79.
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
<;ourse of the judicial proceedings.
It was pointed
out in this case that this section was enacted for
enabling the courts to deal with the specified offences
more expeditiously and effectively and that the provisions were meant to be fair to both sides, that is, to
bring a Criminal to book promptly and not to harass
him after a long time.
Reliance was also placed on
the decision in Amouik v. State(') where more or less
the same view was taken and it was furth(!r pointed
out that where a case is of a class which falls squarely
within the ambit of s. 4 79-A( l) of the Code, the
provisions ofs. 4 76 to s. 4 ~9 are inapplicable.
(I) A. I. K (1960 Bom. 483.
(2) A. I. R. (1959\ Pimjah 145.
(3) A. I. R. (1961) Raj. 220.
I
l
S.C.R:' SUPREME COURT REPORTS
'
509
We cannot, said. :\Yfiss Kapila, ignore the open,ing
words uf: s, 479-A or the provisions of sub-s. (6) of
s. 479-A.
Tlie' inevitQ.b!e effect of these proyisi~ns is
to exclude the provisions of ss. 4 76 to 4 79 iμ respect
of offences which are de~lt with specifically in sub-s.(I ).
Restricting ourselves to a case whe'te--tlre- -0ffence
consists of.intentip1.1jllly giving false evidence "in any
stage of judicial proceeding" it is no doubt true that
as ~nder s. 4 76 it is th!! Court 'Yhich disposes of such
judicial proceeding which primarily has to act under
s. 479-A. There does not appear to be any real distinction betweens. 476 ands. 479-A as to the Court which
can take action. lJnder s. 476 the action may pro_ceed
8UO motu or on application while under s. 479-A no
application seems tp be contemplated. But there is
nothing in this
pro~ision which makes a distinction
between flagrant offences and offences which are not
flagrant or between serious offences and offences
wh~ch are not serious.
For exercising the powers
conferred by this section, the Court has in the first
instance, to form an opinion that the person against
whom complaint is to be lodged has committed one
of the two categories of offences referred to therein.
The second condition is that the Court has come to
the conclusion that for the eradication of the evils of
perjury and fabrication 'of false evidence and in the
interests of justice it is expedient that a witness should
be prosecuted for an offence which appears to have
been committed by him.
Having laid down these
conditions, s. 479-A prescribes the procedure to be
followed by the Court. If the Court docs not form
an opinion that the witness has given· intentionally
false evidence or intentionally fabricated false evidence no question of making a complaint can properly
arise.
Similarly, where the Court has formed an
opinion that though the witness has intcntion:illy
given false evidenc;e or intentionally fabricated raise
evidence the nature of the perjury or fob: ication
committed by him is not such as to make it expedient
in the interests of justice' to inake a cmhplaint it lias a
Shabir HwseiFL. Bh1
v.
Stat1 oj Ma.har.shJ
/lfudholkar ,.J
1962
'habit: HwseiR llh1lu
v.
'cte •f Mcha1cflctr•
Muih1lkllr, J.
510 SUPREME COURT REPORTS (1963] SUPP.
discretion not to make a complaint. But it does not
follow from this that it can later on resort to s. 4 76
and make a COJllplaint against the witness. :For, even
under s. 476 the Court must, before making a complaint, be satisfied that it was expedient in the
interests of justice to make an enquiry into the offence
committed by the witness. It could not be urged
that where the Court wilfully refuses to record at too
time of delivering the judgment or final order disposing of the proceedings before it that for the eradication of the evil of perjury and in the interests of
justice it was expedient that the witness should be
prosecuted for the offence which appears to have been
committed by him it could later resort
to the
provisions of s. 4 76. The position must be the same
where it fails to take action though it is open to it to
do so. It is not as if, as the learned counsel for the
respondent suggests that the Court has an option to proceed under either s. 479-A or under s. 476 and that if
it does not take action under s. 479-A it can do so
under s. 4 76.
The jurisdictions of the Court to make
a complaint against a person arises only from the
fact that that person has given false evidence or
fabricated false evidence at any stage of the proceeding disposed of by it. The conditions required to be
fulfilled by the Court and the procedure to be foltuwed
by it for the purpose of exercising its jurisdiction and
making a complaint are not to be equated with the
conditions which give the court jurisdiction to make
a complaint.
From this it would follow that whereas
s. 4 76 is a general provision dealing with the proc_edure to be followed in respect of a variety oi offences
affecting the administration of justice in so far as
certain offences falling under ss. 193 to 195 and
s. 4 71, I. P. C. are concerned the Court before which
that person has appeared as a witness and which
dispo~ed of the case can alone make a complaint.
In our opinion, therefore, the view taken in the
decisions rehed upon by Mr. Prem is not correct and
1 S.C.R.
SUPREME.COURT REPORTS
511
that the vie~ taken in Parshotam Lal's case(') and
Amolak's case(') to the effect that the provisions of
ss. 476 to 479 are totally excluded ,where an offence
is of the kind specified ins. 479-A (1) is correct.
Mr. Prem then contended that there are two
reasons why the
provisions of s. 479-A, Cr. P.C.
would not apply to the case before· us.
The first
reason, according to him, is that the trial was held
by t_he Additional Sessions Judge with the aid of jury
and that consequently there can be no opportunity to
the Additipnal Sessions Judge to record in his judgment a finding of the kind required by s. 479-A ( 1)
and give his reasons for that finding. The second
ground is that the complaint made by the Additional
Sessions Judge mentions that contradietory statements
were made in the case, orie before him and a different
one before the Committing Magistrate. Where such
is the case the only prov.ision, according to Mr. Prem,
under which a complaint could be lodged is that
container! in s. 4 76,_ Cr. P .C.
As regards the first point it has to be borne in
mind that tliough it is for the jury to give its verdict
regarding the guilt or the innocence of the accused it
is open to the Judge to accept or reject the verdict
and, therefore, it is necessary for him to
record
a short judgment either ·accepting or rejecting
the verdict. Where he rejects the verdict the law requires him to refer the· case to the High Court under
s. 307, Cr. P.C.
In either case he gets an opportunity of recording the kind of finding which is required
bys. 479-A (1).
In so far as the second contention is concerned
reliance is placed by Mr. Prem on Badullah' s case (3).
There, as already stated, it was held that when
contradictory statements ate made. in. two different
proceedings it cannot be predicated with certainty
that the statemenc made in one of them is false
pl A. I. R. (1959) Punj•b 145.
(2) A. L R. (1961) Punj. 229.
.
(SJ A. 1. R, (1961) AJI, m_,
.
Sha6ir Hussein Bholu
v.
Stat~ of Mah•1ashtra
Mudh.olkar, J.
1962
Shllbir Hussein /J!wlu
v.
Sl-·lt oj k!aluuashtra
Muiholk11.r, J.
512 SUPREME COURT REPORTS [1963) SUPP.
unless of course there is sufficient material before the
Court to come to a conclusion that the statement
made before it is false so as to attract the application
of s. 4 79· A, It is also held there that· when the
Court is inclined to the opinion that the statement
made in the previous separate judicial. proceeding is
false and the statement made before itself is likely
to be true, the Court has no power to proceed under
s. 479-A.
In his charge to the jury the learned
Additional Sessions Judge placed before them the
evidence given by the appellant at the trial and also
the evidence of the appellant before the Committing
Magistrate and asked them to decide whether to
accept one or the other of the te~timonies given by
the appellant or whether to reject both.
He also
asked them to consider whether the reference made
by the appellant to Chand, before the Committing
Magistrate, was really to the deceased Abu Kana.
The jury, as already stated, returned the verdict of
guilty under s. 304, Part I. Of course, it cannot be said
that the jury in arriving at the verdict placed reliance
upon the evidence of the appellant tendered before
the Court or rejected it. 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 S("
But, for considering the applicability of s. 479 A(l) 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 BaduUah's case ('), he has no
option but to proceed under s. 479-A{l), Cr. P. C.
The question then is whether he could act under
this provision if he is unable to form an opinion one
wav or the other as to whether the evidence tendered
at the trial is false or the evidence before the commit·
ting Magistrate is false.
What would be the position
in such a case ?
If the proceedings
before the
committing Magistrate must be held to be entirely
(I) A. I. R. (1961) AU. 397,
I S.C.R.
SUPREME COURT REPORTS 513
separate proceedings then we agree with the Allahabad
High Court thats. 479-A(l) would not apply. Could
that be said about evidence given at the committal
stage? Now, s. 479-A(l) speaks of false evidence
given "in any stage of the judicial proceeding." The
committal proceedings are a stage of the judicial
proceedings before the Sessions Judge. It seems to
us therefore that where false evidence is given before
the Committing Magistrate by a person who was
later examined at the trial, the evidence given by him
Lefore the Committing Magistrate cannot properly
be said to have been given in an independent.proceeding. The scheme of the Code is that before a person
is tried for a grave offence by a Court of Sessions an
enquiry is to be made by a Magistrate for finding
out whether there is a prima facie case against the
accused and if he find8 that there is such a prima facie
case to frame a charge against that person and
commit him for trial before the Court of Sessions.
No doubt, the evidence recorded before the Committing Magistrate is not deemed to be evidencr. recorded
at the trial but the fact remains that the evidence
recorded by the Committing Magistrate can be
transferred in certain circumstances to the record of
the trial and taken into consideration in the same
way in which evidence tendered at the trial can be
taken into consideration. In view of these features
which characterise the commitment proceedings we
are of opinion that those proceedings can be regarded
as part of the same judicial proceeding which culminated in the decision of the court of Sessions. Upon
that view it would follow that even when the Sessions
Judge is unable to say which of the two contradictory
statements is false or even where he is of opinion that
the statement before the Committing Magistrate is
false it is for him and him alone to act under
s. 479-A(l). We, therefore, reject both. the aforesaid
contentions of Mr. Pre1J1.
For these reasons we hold that the learned Chief
Presidency Magistrate was right in dis~ha!"ging the
1962
8h11bir Ht1JS1in Bia.Ju.
v.
Sl11' of Ms/wr..,hl1•
Mudhotkcr, J.
Sh.•iir Hussein Bh•lu
v.
St«te •J M«Urc.slttt«
Mudhalk«r,_J,
J§li2
October, ~-
514 SUPREME COURT REPORTS [1963) SUPP.
appellant and that the High Court was in error in
setting aside the order of discharge and directing the
Chief Presidency Magistrate to proceed on the basis
that the complaint was made after following the
procedure laid down in ss. 4 76 to s.4 79, Code of Criminal Procedure.
Appeal aUowed.
SHANTI PRASAD JAIN AND ANOTHER
v.
DIRECTOR OF ENFORCEMENT, FOREIGN
EXCHANGE REGULATION AND ANOTHER
(B. P. SINHA, c. ]., P. B. GAJENDRAGADKAR, K. N.
WANCHOO, K. C. DAS GUPTA and J.C. SHAH,JJ.)
Foreign Exchange-Acquieition by Central Govtrnment0ff'1' for sale by owner-If must co1!tr acquisition both before
and aftu Notification-When must /Je madr<-l'oreign Exchange
Regukition Act, 1947 (7 of 1947), ss .. 9,23-Notification dated
March 25, 1947.
The , first appellant accompanied by his wife, the second
appellant, visited foreign countries on business. He was allowed
foreign exchange amounting to 337 and 1410 U. S. dollars,
the visit being limited to two months. The second appellant
was not allowed any foreign exchage and was allowed to go on
the representation that a foreign company would bear all her
expenses for the trip.
When after three mouths the appellants
returned to Delhi, the Customs authoriti~s found on the person
of the first appellant travellers cheques of the value of 2590 U.S.
dollars. The· Director of Enforcement
took the appellant's
explanation and on adjudication found that the appellants had
received a sum of 3500 U. S. doliars as gift, 'vcre O\Vners of it
and contravened s. 9 of the F'oreign
Exchange Regulation
;\ct, 1947, read with Notifjcation dated March 2'>., 1947, issued