ORDER
E.K. Moidu, J.
1. The question of law arising in this Criminal Revision Petition is: what is the true meaning and scope of Section 476, Criminal Procedure Code in the context of Section 479-A(1) and (6), Criminal Procedure Code, with regard to a prosecution authorised by a court in respect of an offence of periurv committed before it in the course of the trial
2. This question came up for consideration before this Court on account oi a complaint which was directed to be launched by the Addl. Munsif-Rent Controller Ernakulam under Sections 195(1)(b) and 476(1), Criminal Procedure Code in respect of offences under Sections 193 and 199 of the Indian Penal Code before the District Magistratp (Judicial), Ernakulam, against the petitioner. The 1st respondent instituted a proceeding under Section H of the Kerala Buildings (Lease and Rent Control) Act against the petitioner for eviction out of a building which the 1st respondent leased to him. before the Munsif Rent Controller. In the course of that proceeding, the petitioner filed two interlocutor applications one I. A-No. 3476 of 1969 and the other I. A. No, 6173 of 1969 along with two vouchers marked as Exts. D7 and B8 in support of his case that a sum of Rs. 85.60 expended by him towards the repairs of the building in question had been adiusted towards the arrears of rent due to the 1st respondent.
The 1st respondent examined as C. P.W. 4 denied the execution of the vouchers as well as the alleged adiustment. The petitioner, however, maintained that the averment in his affidavits were true and that the adiustment was supported by Exts. D7 and D8. The petitioner also save evidence before the Munsif-Rent Controller to that effect. The petition for eviction was finallv disposed of holding the contentions of the petitioner were not tenable- During the pendency of that petition and iust before the final order was passed, the 1st respondent filed I. A 2943 of 1972 out of which this revision petition has arisen praving the Munsif-Rent Controller to institute Drosecution against the petitioner under Section 476(1) Criminal P. C. in respect of the offence of periurv alleged to have been committed by the petitioner during the eviction proceeding pending before the same Court for the alleged swearing of false affidavits and giving evidence before that Court in support of those affidavits. The learned Munsif-Rent Controller had no word to sav in the final order passed in the eviction proceeding whether the petitioner committed an offencp of periurv or not on account of his swearing to false affidavits or on account of giving false evidence before the Court.
3. In cases of certain offences affecting the administration of iustice the procedure prescribed in Chapter XXXV of the Code of Criminal Procedure has to be followed. In respect of offences enumerated in Section 195(1) (b) and (c) the offenders shall be proceeded against according to the procedure provided for in Section 476. If a Civil, Revenue or Criminal Court is of opinion, that it is expedient in the interests of iustice that an enauirv should be made into any offencp referred to in Section 195(1) (b) or (c) which appears to have been committed in or in relation to a proceeding in that court such court mav, after such Preliminarv enauirv. if any , as it thinks necessarv. record a finding to that effect and make a complaint thereof in writing and forward the same to a Magistrate of the First Class having jurisdiction.
Section 476A authorises a superior Court to make a complaint where a subordinate Court has omitted to do so in respect of offences and in the circumstances mentioned in Section 476(1). Section 476B provides for a right of appeal against the order making or refusing to make a complaint. Sections 478 and 479 deal with the procedure which may be followed in certain grave offences. Section 479A which was added by the Code of Criminal Procedure (Amendment) Act. 26 of 1955 by the first sub-section reads as follows:
479A- (1) Notwithstanding anything contained in Sections 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stase 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 of the evils of periury and fabrication of false evidence and in the interests of ius-tice 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 iudgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and mav, 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 iurisdiction, and mav, 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 eive 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.
Explanation, For the purposes of this sub-section a Presidency Magistrate shall be deemed to ho a Magistrate of the first class.
Sub-section (6) of this Section provides as follows:
(6) No Proceedings shall be taken under Section 476 - 479 inclusivp for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this Section.
4. The conditions necessarv for the application of Section 479-A (1) are set forth in the Section itself. One of the conditions is that the Court before it delivers its iudgment or at any rate at the time of delivering the iudgment must form an opinion that a particular witness has given false evidence and that in the interest of justice, it is expedient for the court that such witness should be prosecuted- But before doing so the witness might also be given an opportunity of being heard. It was not because of want of materials before the Court that it could not come to a conclusion that the petitioner committed periurv in the course of the proceedings before it. On the other hand the Court on the materials available before it did not find that the petitioner committed perjurv or fabricated false evidence. It was only under a separate application filed by the 1st respondent that the Court found on 21-9-1972 that the petitioner committed offences under Sections 193 and 199 of the Indian Penal Code. The procedure adopted by the Munsif-Rent Con-( troller is against the express provisions of Section 479A (1) and (6). '
5. The scope and ambit of Section 479A (1) and (6) were considered by the Supreme Court in Shabir Hussain Bholu v. State of Maharashtra : AIR1963SC816 . The Supreme Court pointed out in this decision that under Section 476 the proceeding could be started suo motu or on application by the aggrieved partv, while under Section 479A there was no need for an application for a proceeding to be instituted against the offender. The main trend of the reasoning in the Supreme Court case is that once a Court does not think it necessarv to act under Section 479A. it cannot later on resort to Section 476 and make a complaint aeainst the witness under that Section. The relevant Passage concerning this aspect of the auestion in the above Supreme Court case reads as follows at Page 820:
For exercising the powers conferred by this Section (Section 479A) 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 periurv and fabrication of false evidence and in the interests of iustice 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, Section 479A prescribes the procedure to be followed by the Court- If the Court does not form an opinion that the witness has given intentionallv false evidence or intentionally fabricated false evidence no Question of making a complaint can properlv arise, Similarly where the Court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the periury or fabrication committed by him is not such as to make it expedient in the inter-rests of iustice to make a complaint, it has a discretion not to make a complaint. ...... It could not be urged that where the Court wilfully refuses to record at the time of delivering the iudement or final order disposing of the proceedings before it that for the eradication of the evil of perjury and in the interests of iustice 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 Section 476. The position must be the same where it fails to take action thoueh it is open to it to do so- It It is not as if, as the learned Counsel for the respondent suggests, that the Court has an option to proceed under either Section 479-A or under Section 476 and that if it does not take action under Section 479A it can do so under Section 476.
6. The above decision was adopted and followed by this Court in a ruling in Kunnummal Raghavan v. Naravana Menon : AIR1970Ker15 wherein Raehavan J. (as he then was) dealt with the Supreme Court decision as follows:
The Supreme Court has said in unmistakable terms that under Section 476 the action may proceed suo motu or on application while under Section 479-A no application seems to be contemplated-The Supreme Court has also said that it is not as if that Court has an option to proceed either under Section 479-A or under Section 476 and that if it does not take action under Section 479-A. it can do so under Section 476. The Supreme Court has said further that if the Court does not form an opinion when it disposes of the matter, that the witness has given in-tentionallv false evidence or intentionally fabricated false evidence, no auestion of making a complaint can properly arise. and that, when the Court has formed an opinion that thoush the witness has intentionally given false evidence or intentionally fabricated falsp. evidence the nature of the periurv or fabrication committed by him is not such as to make it expedient in the interests of iustice to make a complaint, it has the discretion not to make a complaint. The Supreme Court has proceeded to lav down that once a Court does not think it necessary to act under Section 479-A it cannot later on resort to Section 476 and make a complaint against the witness under that section.
7. In view of these decisions it is difficult to support the procedure adopted by the Munsiff-Rent Controller in launching a prosecution asainst the petitioner under Section 476 after he had disposed of the earlier proceeding in which the petitioner was purported to havp committed periurv about which no conclusion was arrived at by the Court. The Munsif-Rent Controller did not think it necessary to follow the procedure contemplated in Section 479A to launch the prosecution against the petitioner. Now the lower Court cannot turn round and fall back upon Section 476 to start fresh prosecution. The Prosecution on hand is therefore incompetent.
8. the learned Counsel for the 1st respondent has, however, relied upon a later decision of the Supreme Court in Kupca Goundan v. M. S.P. Raiesh : 1966CriLJ1503 which could be distinguished on facts. In that case the materials which constituted the offence of penury were not placed before the trial iudee who was to launch the prosecution and a separate proceeding was started under Section 476 after the conclusion of the trial. The Supreme Court itself brought out the distinction between the two rulings- At page 1866 of the above Supreme Court decision the relevant passage dealing with the distinction occurs. It reads:
It is manifest that the material in that case : AIR1963SC816 was produced before the Sessions Court for coming to the conclusion that the appellant had committed periurv and so the procedure contemplated in Section 479-A (1) was applicable and since the Sessions Judge did not proceed under that Section, though he could have done so, the bar contemplated by Clause (6) of Section 479-A operated and no action could have been taken under Section 476. Criminal Procedure Code. The ratio of that decision is not applicable to the present case because the material facts are different.
9. The earlier Supreme Court decision was as a matter of fact approved in the later Supreme Court case and there was no conflict between the two.
10. Next it is contended that the swearing to a false affidavit in a iudicial proceeding is not sufficient to 'constitute perjury by a witness' for the purpose of action under Section 479-A and as such no action could havp been taken under that Section. The petitioner who was partv to the proceeding swore to an alleged false affidavit; he was not only a party but a witness as well. Swearing to a false affidavit is aiving false evidence and fabricating false evidence. There cannot be any doubt about it. The Supreme Court said so in Baban Singh v. Jagadish Singh : 1967CriLJ6 . This decision laid down that swearing a false affidavit is an offence falling under Sections 191 and 192 of the Indian Penal Code The later decision of the Supreme Court Chaioo Ram v. Radhev Shvam : 1971CriLJ1096 restricted the scone of Section 479-A to the witnesses who appeared in Court and save evidence. It is stated in the decision:
The crucial point to be noticed in this section (Section 479A1. is that it is only a witness ivho has appeared before the Court who can be proceeded asainst. Now, the appellant Quite clearlv did not appear as a witness before the High Court. He undoubtedly filed sworn affidavits but it is not possible to hold that by doing so he could be said to have appeared as a witness. Section 479-A, Criminal P. C-. is, therefore, inapplicable and it cannot operate as a bar to the proceedings under Section 476 Criminal P. C.
11. In the instant case the petitioner appeared and gave evidence as a witness before the Munsif-Rent Controller in respect of the alleged false affidivits as well as the vouchers which were also found to be fabricated. Therefore there could not have been any bar for the Munsif-Rent Controller proceeding with the case in accordance with the provisions of Section 479-A. The failure of the trial court in not complying with the provisions of Section 479-A has affected the iurisdiction of that court to deal with the same auestion under Section 476 at a later stage- The order sanctioning prosecution under Section 476 Criminal P. C. is therefore incorrect and inoperative.
12. In the result, the Criminal Revision Petition is allowed. The order in I. A- No. 2943 of 1972 of the Additional Munsif-Rent Controller Ernakulam. sanctioning prosecution against the petitioner is set aside.