# The Municipal Board, Mainpuri v. Kanhaiya Lal Subba Rao]

- **Citation:** [1960] 1 S.C.R. 945
- **Court:** Supreme Court of India
- **Decided:** 1959-03-19
- **Bench:** S. K. Das, A. K. Sarkar, M. HrnAYATULLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-municipal-board-mainpuri-v-kanhaiya-lal-subba-rao-1845
- **Pages:** 9

## Headnote

Criminal Procedure-Intentionally giving false evidence-Show
ca11se notice-Duty of Appellate Court--Criminal Procedure Code,
s. 479A, su.b-ss. (r) and (5).
By sub-s. (1) of s. 479A of the Code of Criminal Procedure
"when any ... 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 proceedings ...... and
that, for the eradication of the evils of perjury ...... 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
1959
The Municipal
Board, Mainpuri
v.
Kanhaiya Lal
Subba Rao].
1959
October 7
946
SUPREME COURT REPORTS [1960(1))
r959
judgment or final order disposing of such proceeding, record a
finding to that effect stating its reason therefor and may, if it so
;
Dr. B. K. Pal
thinks fit, after giving the witnesses an opportunity of being
Chaudhry
heard, make a complaint thereof." By sub-s. (5) of this section
v.
"that in any case, where an appeal has been preferred from any
The State of Assam decision of a Civil, Revenue or Criminal Court but no complaint
has been made under sub-s. (r), the power conferred on such
Civil, Revenue or Criminal Court under the said sub-section may
be exercised by the Appellate Court; and where the Appellate
Court makes such complaint, the provisions of sub-s. (r) shall
apply accordingly, but no such order shall be made, without·
giving the person affected thereby an opportunity of being
beard."
Held, that it is the duty of an Appellate Court acting under
these sub·sections to record a finding that in its opinion intentionally false evidence had been given and that for the eradication
of the evils of perjury and in the interests of justice it is expedient
that there should be a prosecution for the offence and also to give
the person against whom it is intended to proceed a hearing
before making the complaint in respect of the offence.
Held, also, that in giving such hearing it is open to the Appellate Court to hold that no false evidence bad been given or that
the evidence given \Vas not intentionally false not\vithstanding
that the Court hearing the appeal had taken the view that intentionally false evidence had been given. An order directing a
complaint to be filed, which is made on the view that the finding
in the judgment in the appeal that intentionally false evidence
had been given \Vas binding on the Court proceeding under these
sub-sections and that it was not open to that Court to take a
different vie~·. is a wrong order and cannot be sustained. The
rinding required to be made by s. 479A(r) as to the truth of the
evidence given or whether false evidence had been intentionally
given js only of a prima facie nature; it is not a finding which
has any force at the trial upon the complaint made pursuant to
that finding and no question of the person prosecuted being
prejudiced thereby, arises.
CRIMINALAPPEl,LA'l'E
JURISDICTION:
Criminal
Appeal No. 81 of 1959.
Appeal by special leave from the judgment and
order dated March 19, 1959, of the Assam High Court,
in Criminal Misc. Case No. 2 of 1958.
II. J. U-mrigar and D. N. 111.'nkherjee, for the appel.
lant.
N aunit .Lal, for the respondent.
I
S.C.R.
SUPREME COURT REPORTS
947
1959.
Oc~ober 7. The Judgment of the Court was
'959
delivered by
Dr. B. K. Pal
SARKAR J.-The appellant is a medical doctor and
Chaudhry
at the material time, he was the Civil Surgeon of
v.
D'b
h
H
't
•
· • l
b ·
The Stale of Assam
1 rugar .
e was a w1 ness m a cnmma case emg
G. P. Case No. 654/54 i'n which three persons were
Sarkar J.
charged inter alia under s. 376 of the Indian Penal
Code with the offence of rape. The case was tried
with the aid of a jury and resulted in a verdict of
acquittal in respect of that charge. There was an
appeal to the High Court of Assam against the
acquittal which was allowed and two of the accused
persons were c

## Text

S.C.R.
SUPREME COURT REPORTS
945
language it is possible to hold that a vehicle which is
already in the limits of the Municipality, when it plies
for hire, enters the municipal limits. So too, the words
"bring within the limits of Mainpuri Municipality "
in Rule I emphasize the idea that a laden vehicle
cannot be brought within the Municipality until the
toll due has been paid. One cannot bring within the
Municipality a vehicle which is already in the Municipality. Confronted with the clear terminology used
both in the section as well as in the Rules, the learned
Counsel for the appellant attempted to argue that the
words "Mainpuri Municipality" are comprehensive
enough to take in part or parts of that Municipality
and, therefore, when a la.den vehicle passes from one
part of the Municipality to another part, it has to pay
toll if there is a barrier between the two parts. This
argument may perhaps be ingenious, but to our mind
it is clearly unsound.
We find it well nigh impossible
to hold that a vehicle is brought within the limits of
the Municipality when it is brought from one part of
the Municipality to another part.
In the result, we agree with the construction put
upon the section by the High Court. The appeal fails
and is dismissed.
Appeal dismissed
DR. B. K. PAL CHAUDHRY
v.
THE STATE OE' ASSAM
(S. K. DAS, A. K. SARKAR and M. HrnAYATULLAH, JJ.)
Criminal Procedure-Intentionally giving false evidence-Show
ca11se notice-Duty of Appellate Court--Criminal Procedure Code,
s. 479A, su.b-ss. (r) and (5).
By sub-s. (1) of s. 479A of the Code of Criminal Procedure
"when any ... 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 proceedings ...... and
that, for the eradication of the evils of perjury ...... 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
1959
The Municipal
Board, Mainpuri
v.
Kanhaiya Lal
Subba Rao].
1959
October 7
946
SUPREME COURT REPORTS [1960(1))
r959
judgment or final order disposing of such proceeding, record a
finding to that effect stating its reason therefor and may, if it so
;
Dr. B. K. Pal
thinks fit, after giving the witnesses an opportunity of being
Chaudhry
heard, make a complaint thereof." By sub-s. (5) of this section
v.
"that in any case, where an appeal has been preferred from any
The State of Assam decision of a Civil, Revenue or Criminal Court but no complaint
has been made under sub-s. (r), the power conferred on such
Civil, Revenue or Criminal Court under the said sub-section may
be exercised by the Appellate Court; and where the Appellate
Court makes such complaint, the provisions of sub-s. (r) shall
apply accordingly, but no such order shall be made, without·
giving the person affected thereby an opportunity of being
beard."
Held, that it is the duty of an Appellate Court acting under
these sub·sections to record a finding that in its opinion intentionally false evidence had been given and that for the eradication
of the evils of perjury and in the interests of justice it is expedient
that there should be a prosecution for the offence and also to give
the person against whom it is intended to proceed a hearing
before making the complaint in respect of the offence.
Held, also, that in giving such hearing it is open to the Appellate Court to hold that no false evidence bad been given or that
the evidence given \Vas not intentionally false not\vithstanding
that the Court hearing the appeal had taken the view that intentionally false evidence had been given. An order directing a
complaint to be filed, which is made on the view that the finding
in the judgment in the appeal that intentionally false evidence
had been given \Vas binding on the Court proceeding under these
sub-sections and that it was not open to that Court to take a
different vie~·. is a wrong order and cannot be sustained. The
rinding required to be made by s. 479A(r) as to the truth of the
evidence given or whether false evidence had been intentionally
given js only of a prima facie nature; it is not a finding which
has any force at the trial upon the complaint made pursuant to
that finding and no question of the person prosecuted being
prejudiced thereby, arises.
CRIMINALAPPEl,LA'l'E
JURISDICTION:
Criminal
Appeal No. 81 of 1959.
Appeal by special leave from the judgment and
order dated March 19, 1959, of the Assam High Court,
in Criminal Misc. Case No. 2 of 1958.
II. J. U-mrigar and D. N. 111.'nkherjee, for the appel.
lant.
N aunit .Lal, for the respondent.
I
S.C.R.
SUPREME COURT REPORTS
947
1959.
Oc~ober 7. The Judgment of the Court was
'959
delivered by
Dr. B. K. Pal
SARKAR J.-The appellant is a medical doctor and
Chaudhry
at the material time, he was the Civil Surgeon of
v.
D'b
h
H
't
•
· • l
b ·
The Stale of Assam
1 rugar .
e was a w1 ness m a cnmma case emg
G. P. Case No. 654/54 i'n which three persons were
Sarkar J.
charged inter alia under s. 376 of the Indian Penal
Code with the offence of rape. The case was tried
with the aid of a jury and resulted in a verdict of
acquittal in respect of that charge. There was an
appeal to the High Court of Assam against the
acquittal which was allowed and two of the accused
persons were convicted.
The offence was said to have been committed on a
minor girl named Roheswari Chetia sometime in the
afternoon of March 19, 1954. The same day at 6 p.m.,
sh~ was examined by Dr. Dhanbir Pait, the doctor in
charge of Moran Dispensary, near which the offence
was alleged to have been committed. It appears that
the police produced her for another medical examination at the District town of Dibrugarh the next day
and she was then examined by Dr. Mahibulla who was
an assistant to the appellant, the Civil Surgeon.
Thereafter, the police on March 21, 1954, produced the
girl before the appellant for a further medical examination and she was examined by him on that date.
With the reasons for these repeated medical examinations we are not concerned in this case.
Doctor Pait was called as prosecuti'on witness at
the heari:ug of the case while the appellant and
Dr. Mahibulla were called by the accused as defence
witnesses. Dr. Pait in his evidence was clear that the
girl had been raped. He said that he found two circular teeth marks on her cheeks and a reddish circular
mark on her left breast. He also said that he found
the hymen ruptured and gave other details in support
of his opinion that the girl had been ravished. In his
opinion, the hymen appeared to have been ruptured
the same day that he examined the girl. Dr. Mahibulla's evidence was that the hymen was ruptured but
the rupture had taken place nine or ten days before
948
SUPREME COURT REPORTS [1960(1))
z959
the incident and was not a recent one. The appellant
in his evidence stated that the marks on the cheeks of
D~:!au:1.,;•
1
the girl appeared to be insect bite and that hymen
v.
was not ruptured. He found no evidence of rape on
7 he State of Assam her person. There was thus direct contradiction
-
between the evidence of the doctor called by the proSarkar f.
secution and the doctors called by the defence, on the
question of the rupture of the hymen.
As we have earlier stated, the High Court allowed
the appeal against acquittal in the view that the
commission of the offence.of rape had been established
by the evidence of the doctor called by the prosecution and other evidence led by it. It is not necessary
to refer for the purposes of this appeal to the other
evidence produced. The appeal to the High Court
was heard by Sarjoo Prosad, C. J., and Deka, J. After
allowing the appeal and convicting the two accused,
these learned Judges on the same day, passed an order
in the terms set out below, directing the issue of a
notice to the appellant.
31-7-1958. Issue notice on Dr. B. K. PalChaudhury
(D. W. 2), Retired Civil Surgeon, Dibrugarh to show
cause why he should not be prosecuted under s. 193
I.P.C. for giving false evidence in connection with
G.P. Case No. 654/54, (Lakhimpur, Case No. 72 of
1955)-The State v. Maherulra Nath Barua and Others.
The notice was thereafter duly issued and served on
the appellant. Pursuant to the notice the appellant
showed cause, but this time the matter was heard by
Deka and Mahrotra, JJ. These learned Judges came
to the conclusion that it was a fit case in which a
complaint should be made against the appellant for an
offence punishable under s. 193 of the Indian Penal
Code and directed the Registrar of the High Court to
lodge the complaint in the Court of the Deputy Comissioner, Lakhimpur. It is against this order directing
the making of the complaint, that the present appeal
was filed.
Sections 476 to 479A of the Code of Criminal Procedure deal with complaints to be made for the offence
of giving false evidence as defined by s. 193 of the
Indian Penal Code and for other offences mentioned
I
\ -
S.C.R.
SUPREME COURT REPORTS
949
therein. Section 479A was introduced into the Code of
z959
Criminal Procedure by the Code of Criminal Procedure
(Amendment) Act, 1955. Sub-section (6) of this section
Drc:a~~,;ar
is in these terms :
v.
S. 479 A ( 6)-N o proceedings shall be taken under The State 0! Assam
sections 476 to 479 inclusive for the prosecution of a
-
person for giving or fabricating false evidence, if
Sarkar f.
in respect of such a person proceedings may be taken
under this section.
Now, the present case was one in which the proceedings were directed to be taken for giving false evidence
and the learned Advocates, appearing for the parties
to this appeal, agreed that sub-sec. (6) of s. 4 79A makes
ss. 476 to 479 inapplicable to it. In that view of the
matter, we think it unnecessary to consider these
sections.
Section 479A(l), so far as it is material to the present
case, is in these terms :
" When any ... 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 proceedings ... and that, for the
eradication of the evils of perjury ... 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 reason therefor and may,
if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof."
Sub-section (5) of this section runs as follows:
"In any case, where an appeal has been preferred
from any decision of a Civil, Revenue or Criminal
Court but no complaint has been made under sub-section (1), the power conferred on such Civil, Revenue
or Criminal Court under the said sub-section may be
exercised by the Appellate Court ; and where the
Appellate Court makes such complaint, the provisions of sub-section (1) shall apply accordingly, but
no such order shall be made, without giving the
~~o
z959
950
SUPREME COURT REPORTS [1960(1)]
person affected thereby an opportunity of being
heard."
Dr. P. K. Pal
Cha,.dhry
The appellant's contention is that the terms of this
v.
section were not complied with. We think that this
Th4 State of A!sam contention is justified. The present case is governed
Sarkar].
by sub-sec.(5) of s. 479A for here the complaint was
not made by the trial Court but by the Appellate
Court. Therefore, the terms of both snb-ss. (1) and (5)
have to be complied with.
The combined effect of
these sub-sections is to require the court intending to
make a complaint, to record a finding that in its
opinion a person appearing as a witness has intentionally given false evidence and that for the eradication
of the evils of perjury, and in the interests of justice,
it is expedient that such witness should be prosecuted
for the offence and to give the witness proposed to be
proceeded against, an opportunity of being heard as
to whether a complaint should be made or not.
It. seems to us that none of these conditions of the
section was observed by the High Court when it directed the complaint to be made.
First there was no
finding recorded by it that the appellant had intentionally given any false evidence or that it was expedient
to proceed against him for the eradication of the evils
of perjury and in the interests of justice.
The order
which directed the notice to issue-and that seems to
be the only order in connection with the matter-does
not record any such finding.
Nor do we find in the
judgment in the main appeal heard by the High Court
in the case in which the appellant gave evidence,
any such finding.
Secondly, it does not seem to us that the High Court
gave the appellant a proper hearing to which he was
clearly entitled under the terms of sub-sec. (5) of
s. 479A. Deka, J., in the judgment that he delivered,
directing the complaint to be made, contended himself
by saying that the procedure laid down by s. 479A of
the Criminal Procedure Code had been substantially
followed except that in order to avoid prejudice to the
appellant at the trial to follow the complaint, the
reasons for supposing the witness to have perjured had
not been ela,borately or specifically dealt with. It does
. i
'
~-
•
S.C.R.
SUPREME COURT REPORTS
951
not seem to us that this is a satisfactory way of dealing
with the question raised.
I9$9
Dr. P. K. Pal
What Mehrotra, J., said, however, is, in our
Chaudhry
view, clearly erroneous.
It appears to have been
v.
contended by the learned Advocate for the appellant TM s1a1e of Assam
in the High Court that because the High Court had
preferred to accept the testimony of the other doctors,
it could not necessarily be said that the evidence of
the appellant was false or that he intentionally gave
false evidence and it was open to the court on hearing
the appellant to come to a different conclusion on these
matters. Mehrotra, J., dealing with these contentions
said "that these are matters which may be taken into
consideration by the Court trying the case but cannot
be considered by this Court at this stage. Any observation by this Court on merits is likely to prejudice the
trial of the case."
He observed that s. 479A was
inserted with the object of avoiding further inqui.r;y
which inquiry was required by s. 476. There are two
further observations made by this learned Judge which
are of great materiality in the present appeal and we
set them out below :
"The witness is in effect challenging the correctness of the findings of the Bench hearing an appeal
that he intentionally made a false evidence.
It is
not open to .this Bench to upset this finding."
" To my mind it is not open to the other Bench
to record a finding different from the Bench hearing
the appeal on the question of the witness intentionally giving a false evidence."
It is obvious from these observations of Mehrotra, J.,
that he considered himself bound by the findings of
the Bench hearing the appeal that the appellant had
intentionally given false evidence. We have earlier
stated that the Bench hearing the appeal expressed
no such finding.
However that may be, it seems
clear to us that the statute by providing in sub-sec. (5)
of s. 479A, which is the provision governing this
case, that no order directing a complaint shall be
lodged without giving the person affected thereby an
opportunity of being heard, intended that after giving
Sarkar].
952
SUPREME COURT REPORTS [1960(1))
that hearing it would be open to the Court to decide
not to make a complaint. Otherwise there would be
D'(;,:,,:,;,;01 no sense in directing that a hearing should be given.
v.
Now, the Court may, after giving that hearing, decide
I959
The State of Assam not to make a complaint either for the reason that
Sarkar j.
the Court was satisfied that no false evidence was
given by the witness concerned or that such evidence
was not intentionally false, or lastly, that it was not
expedient in the interests of justice or to eradicate
the evils of perjury, to make the complaint. By
stating that it was not open to him "to upset" the
finding of the Bench hearing the appeal that false
evidence had been intentionally given, Mehrotra, J.,
really did not give any hearing to the appellant as
the sub-section required him to do. He thought that
the course adopted by him would be in the best
interests of the appellant as it would prevent his case
from being prejudiced at the trial upon the complaint.
We consider that the ground of prejudice is more
fancied than real. The finding required to be made
by s. 4 79 A ( 1) is only of a prim a f acie nature ; it cannot
be a finding which would have any force at the trial
upon the complaint made pursuant to that finding.
Further, this notion of avoiding prejudice wonk! not
justify a clear breach of the terms of the section.
The order of the High Court cannot be supported
even if it is assumed that Deka, J., took a correct view
of the matter, for, the other learned Judge clearly
took a wrong view and it cannot be said what the
decision would have been if he had approached the
matter from the correct point of view.
We are therefore satisfied that the order appealed against had been
made in breach of the express provisions of sub.
secs. (1) and (5) of s. 479A, and cannot be allowed to
stand.
It was suggested by the learned Advocate for the
respondent., the State of Assam, that we might go into
the evidence and make a complaint ourselves. We
do not consider it fit to take this course even if it be
open to us, as to which we say nothing, for we find it
impossible to do so without going into the entire case
and all the evidence led, and these are not before us.
'
,.
-(
S.C.R.
SUPREME COURT REPORTS
953
It was then said that we should remand the case
z959
back to the High Court for giving proper hearing to
the appellant, but we do not think that we should
Drc~u:n~:'"
make that order either. All that has happened is
v.
that the High Court has made the order in breach of The s1at1 of Assam
the section and what we are called upon to do is.to set
aside that order. What further action can be taken in
Sarkar J.
accordance with law is for the High Court to decide.
The result, therefore, is that this order of the High
Court is set aside and the appeal is consequently
allowed.
Appeal allowed.
SHUBNATH DEOGRAM
v.
RAM NARAIN PRASAD AND OTHERS
(S. K. DAS, P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. SuBBA RAO and M. HIDAYATULLAH, JJ.)
Election Petition-Corrupt practice-Appeal to vote on grounds
of religion-Leaflet issued by party-Construction of-Representation of the People Act, I95I (43 of I95I), s. Iz3(3).
The appellant, a candidate set up by the Jharkhand Party,
was declared elected to the Bihar Legislative Assembly from the
Manoharpur constit~ency in the district of Singbhum. He was
an Adibasi belonging to 'Ho' community, and the constituency
also consisted of electors belonging largely to' the Adibasi communities of Hos, Mundas and Oraons. The symbol chosen by the
party and allotted by the Election Commission to it was a cock.
The cock was not a religious symbol of the Adibasis but it
formed an integral part of the religious ceremonies which they
performed while worshipping some of their important deities ..
Cocks were often offered as sarcifices to the deities. The Jharkhand Party issued a1leaflet containing an appeal for votes and the
appellant and his agents distributed the leaflet among the
electorate and made speeches in its terms. The leaflet. was in
verse wherein the appeal for votes was made by a cock; the relevant portion was as follows :
" Respected sons of men open your eyes, lend your ears
Recognise me and my crow.
In your services and worships
In the Worship of your forest God (Buru)
In Stomach pain and headache
At the time· of your distress and miseries
1959
October 8