B. Puthan Vs. B.M. Billan and anr. - Court Judgment

Excerpt:
- orderswamidurai, j.1. civil revision petition no. 3278 of 1991 is filed against the order made in i.a. no. 186 of 1991 in o.p. no. 1 of 1991 on the file of the learned district munsif, uthagamandalam. o.p. no. 1 of 1991 was filed by the petitioner herein against b.m. billan and b. rani in the court of the district munsif, uthagamandalam under section 193, i.p.c. and under sections 195 and 340, crl.p.c, praying for sanction to prosecute the respondents therein. that o.p. was posted on 12.12.1990 for notice to respondents and mr. w.p. sivaraj, advocate entered appearance for the respondents in the o.p. on 6.2.1991 and time was requested for filing counter. but he filed the vakalat on 20.2.1991 and prayed for further time for filing counter. the o.p. was adjourned to 20.3.1991 for the said purpose. but on that date, no counter was filed by the respondents and again it was adjourned to 24.1991 for counter finally. on 2.4.1991 counter was not filed. again it was adjourned to 12.4.1991 for counter. even on that date, it was not filed. the respondents absented themselves in the lower court and so they were called and set ex parte. counsel for the respondents mr. m.p. sivaraj also did not attend the court on that date. the case of the petitioner in the o.p. is that the respondents gave false evidence in o.s. no. 263 of 1989 of the said court. the trial court framed points for consideration, namely, whether the respondents gave false evidence in o.s. no. 263 of 1989 on his file and if so, whether the respondents are liable to be prosecuted under sections 193 and 109 i.p.c. and the third point is whether that was a fit case for granting sanction for prosecution of the two respondents. the trial court observed in its order that though it was not necessary that there should be a preliminary enquiry under section 340, crl.p.c. yet the lower court gave an opportunity to the respondents to put forward their contentions. after discussion, the trial court found that it was a fit case for granting sanction for prosecution against the respondents and as an order was passed accordingly on 30.4.1991. b.m. billan, the first respondent in the o.p. filed i.a. no. 186 of 1991 under order 9. rule 13, c.p.c., for setting aside the exparte decree dated 30.4.1991 in o.p. no. 1 of 1991 stating that he is a teacher in a school, that on the date when the o.p. was posted finally for filing his counter, he could not obtain leave to meet his advocate for filing counter and so his absence was not wilful but bona fide. this petition was resisted by the petitioner (puthan) in the o.p. by filing a counter stating that the absence of the petitioner in the i.a. no. 186 of 1991 is wilful and that the provision under order 9, rule 13, c.p.c. does not apply to the proceedings at all. according to him, the order passed in the o.p. is not at all a decree as per the provisions of the code of civil procedure. learned district munsif allowed that application by his order dated 8.11.1991 on condition that the petitioner in i.a. no. 186 of 1991 should pay a sum of rs. 100 as costs before 28.11.1991 failing which the said application would stand dismissed. the trial court posted that application i.a. no. 186 of 1991 to 29.11.1991 for compliance. as against that order made in i.a. no. 186 of 1991 dated 8.11.1991 c.r.p. no. 3278 of 1991 is filed in this court. c.r.p. no. 1238 of 1992 : b. rani, the second respondent in o.p. no. 1 of 1991 filed i.a. no. 187 of 1991 for setting aside the ex parte order passed under 0.9, rule 13, c.p.c. stating that she was a student in a government teachers training school at kothagiri that she could not meet her counsel on 30.4.1991 for filing the counter as she could not get leave on that date and so that her absence was not wilful but bona fide. this i.a. no. 187 of 1991 was resisted by puthan the petitioner in the o.p. on the ground inter alia that order 9, rule 13, c.p.c. will not apply since the order passed in the o.p. is not a decree as per c.p.c. and that the absence of the petitioner rani is wilful. the lower court passed an order on 8th november, 1981 allowing i.a. no. 187 of 1991 on condition that the petitioner in i.a. no. 187 of 1991 should pay a sum of rs. 100 as costs to the respondents in the la within 28.11.1991 failing which the said application would be dismissed and posted the i.a. to 29.11.91. as against that order dated 8.11.1991 made in i.a. no. 187 of 1991, c.r.p. no. 1238 of 1992 is filed.2. mr. k. sampath, learned counsel for the petitioner in both the civil revision petitions filed written arguments contending that the application i.a. no. 187 of 1991 filed under order 9, rule 13, c.p.c. is not at all maintainable and that if at all the respondent is aggrieved with the order madeec parte in o.p. no. 1 of 1991, he has to file an appeal as against that order. the second contention of mr. k. sampath is that no enquiry is necessary and that the lower court has committed an error in ordering notice and calling upon the respondent to show cause as to why the application filed under section 193, i.p.c. and also under sections 195 and 340 crl.p.c. should not be ordered. in support of his contention, he relied upon the decisions in the case of in re. narayana nadan a.i.r. 1915 mad. 229, raja rao v. emperor a.i.r. 1926 mad. 1008, canti v. marcourt : air1931cal436 , varadarajulu naidu v. emperor : (1937)1mlj396 .3. learned counsel for the respondents mr. ashok menon filed his arguments in writing. his contention is that when an o.p. is filed under the abovesaid provisions of the act seeking for sanction to prosecute and if an exparte order is passed, a petition under order 9, rule 13, c.p.c. is maintainable and in support of that he relied upon the decision in the case of kumaravel v. shanmugha nadar : air1940mad465 . the division bench held that a civil court does not cease to be a civil court when it is considering the application made to it under section 476, c.p.c. (old act) and if for the purpose of that application it remains a civil court, it must be governed by the provisions of the code of civil procedure and not by those of the code of criminal procedure. it was further held that where an order has been passed by a civil court under section 476, crl.p.c. (old act), section 439, crl.p.c. has no application. section 476, crl.p.c. of the old act corresponds to section 340, crl.p.c. of the new act. the full bench decision of our high court reported in a.i.r. 1940 mad.465 supra has been later followed by the calcutta high court in the decision in the case of nadiarila pariabad v. sentimay biswan . learned single judge of calcutta high court held that the provisions of order 9, rule 13, c.p.c. are attracted and an application for rehearing of the proceedings under section 340, crl.p.c. is maintainable. i am bound by the full bench judgment of this court referred to above. therefore, i am of the view that the application under order 9, rule 13, c.p.c. is maintainable and i answer this point accordingly.4. with respect to the second contention that no enquiry is necessary at all and that even notice ought not to have been sent to the respondent to show cause to the proceedings made in o.p. no. 1 of 1991. mr. k. sampath, learned counsel for the petitioner contended that in view of the above decisions relied upon by him, a preliminary enquiry itself is not at all contemplated and that the lower court has exceeded its jurisdiction in ordering notice in i.a. nos. 187 of 1991 and 186 of 1991 in o.p. no. 1 of 1991. he relied upon the decision in the case varadarajulu naidu v. emperor : (1937)1mlj396 . in that decision, a division bench of this court has held that any high court judge has jurisdiction to make complaint under section 476, c.p.c. when fabricated documents are produced during trial of suit in exercise of original civil jurisdiction. the division bench has also held as follows:when a suit is tried by a judge of the high court, the term 'court' occurring in section 476, crl.p.c. must be taken to mean 'the high court'. there is nothing to prevent any judge of the high court from dealing with the matter, though as a matter of convenience this would seldom be done. where therefore, some fabricated documents are put in evidence during trial of a suit by the high court and the trial judge is absent, the officiating chief justice of that high court has jurisdiction to make a complaint under section 476, crl.p.c.the division bench further observed that there is nothing to prevent any judge of the high court from dealing with the matter though as a matter of convenience this would seldom be done, and the matter was in this case placed before the officiating chief justice as the trial judge was absent at the time. the court may, under section 476, crl.p.c. make the complaint on the application made to it or otherwise, and it need not hold a preliminary enquiry, notice to the person proceeded against is not essential, and it is apparent from the order itself that it was passed by officiating chief justice in the exercise of ordinary original jurisdiction. there is therefore no substance in the contention that the officiating chief justice had no jurisdiction to pass the order under section 476, crl.p.c., and questions 1 and 3 do not arise. the proper course for the accused was to appeal against the order under section 476, crl.p.c., and it is queer that objection should have been raised and permitted before the magistrate. in the decision in the case of canti v. marcourt : air1931cal436 , learnedsingle judge of the calcutta high court has held as follows:when a person is alleged to have given false evidence before arbitrator, an application under section 476, in the court in which the suit was instituted is necessary. but the question whether a preliminary enquiry is necessary or not will depend upon the facts and circumstances of each case. where the application is supported not by oral evidence, but only by documents, no further preliminary inquiry is necessary beyond that which the court makes on the materials before it.in such cases it is not necessary that a notice should be given to the person against whom the order is sought on an application under section 476.there is the further question whether the person, against whom the application is made, should be given an opportunity of being heard upon the preliminary enquiry but this, in my judgment, is generally to be deprecated. it might result, in some measure, in converting the enquiry into an enquiry not dissimilar from that which it would be the duty of a magistrate to make and it might involve the person against whom the order is sought in himself giving evidence on oath by affidavit or otherwise which would be contrary to the spirit of the criminal law in this country. i do not therefore consider that it is necessary that notice should be given to the person against whom the order is sought on an application such as this. he will, moreover, have every opportunity of being heard by the magistrate upon whom the duty will be cast of proceeding according to law, if a complaint is made. i find that it is expedient in the interest of justice that an enquiry should be made into the offences specified in the petition in respect of the statements of marcourt, which i have quoted; and i direct that a complaint thereof in writing shall be prepared for signature as required to be forwarded to the chief presidency magistrate for him to proceed in accordance with the law.in the decision in the case of in re narayana nadan, in re. a.i.r. 1915 mad. 229, a division bench of this court consisting of wallis and sadasiva ayyar, jj has held as follows:per wallis, j.: section 195, crl.p.c., does not enumerate the considerations which should guide the courts in granting sanctions nor does it prescribe indefeasible that the court should hold a fresh enquiry and take evidence before granting sanction. such a proceeding is quite unnecessary in a case, where the court has acquired a knowledge of the facts in the course of the proceedings in or in relation to which the offence is alleged to have been committed. queen empress v. sheik beari i.l.r. 10 mad. 232 distinguished. the dicta contained is some of the decided cases that the order should be made on judicial evidence do not mean that such evidence must have been given on the application for sanction or even on the hearing of the complaint itself.in the judgment in the case of raja rao v. emperor a.i.r 1926 mad. 1008, a division bench of this court (devadoss and waller, jj.) has held as follows:what a court has to decide under section 476 is (a) whether an offence of the kind contemplated appears to have been committed; (b) whether it is expedient in the interest bf justice that it should be further enquired into. in order to arrive at a decision the court may, if it thinks fit, hold such preliminary enquiry as it considers necessary. the nature method and extent of the preliminary enquiry are entirely at its discretion. the enquiry need not be such as to satisfy the court that an offence actually has been committed by merely that an offence appears to have been committed. if, therefore, a court holds such an enquiry, the persons against whom it is carried on, cannot claim to cross-examine the witness.in the judgment in the case of canti v. marcourt : air1931cal436 a division bench of calcutta has held as follows:where a person is alleged to have given false evidence before arbitrator, an application under section 476, in the court in which the suit was instituted is necessary. but the question whether a preliminary inquiry is necessary or not will depend upon the facts and circumstances of each case. where the application is supported not by oral evidence, but only by documents, no further preliminary inquiry is necessary beyond that which the court makes on the materials before it.in such cases it is not necessary that a notice should be given to the person against whom the order is sought on an application under section 476.the division bench of calcutta high court has also referred to the divison bench judgment at this court in raja rao v. emperor a.i.r 1926 mad. 1008.5. section 340, crl.p.c. of 1973 is equivalent to section 476, crl.p.c. of 1898. section 340, crl.p.c. of 1973 reads as follows:340. procedure in cases mentioned in section 195: when, upon an application made to it in this behalf or otherwise, any court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any as it thinks necessary,-(a) record a finding to that effect;(b) make a complaint thereof in writing;(c) send it to a magistrate of the first class having jurisdiction;(d) take sufficient security for the appearance of the accused before such magistrate, or if the alleged offence is non-bailable and court thinks it necessary so to do, send the accused in custody to such magistrate; and(e) bind over any person to appear and give evidence before such magistrate.(2) the power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of section 195.(3) a complaint made under this section shall be signed,-(a) where the court making the complaint is a high court, by such officer of the court as the court may appoint;(b) in any other case, by the presiding officer of the court.(4) in this section 'court' has the same meaning as in section 195.6. o.p. no. 1 of 1981 was filed under section 193, i.p.c. and under sections 195 and 340, crl.p.c. section 193, i.p.c. reads as follows:193. punishment for false evidence: whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.explanation 1: a trial before a court martial is a judicial proceeding.explanation 2: an investigation directed by law preliminary to a proceeding before a court of justice, is a stage of a judicial proceeding, though that investigation may not take place before a court of justice.explanation 3: an investigation directed by a court of justice according to law, and conducted under the authority of a court of justice, is a stage of a judicial proceeding, though that investigation may not take place before a court of justice.section 195, crl.p.c. reads as follows:195. prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence: (1) no court shall take cognizance - (a)(i) of any offence punishable under sections 172 to 188 (both inclusive of the indian penal code, or(ii) of any abetment of, or attempt to commit, such offence, or(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.(b)(i) of any offence punishable under any of the following sections of the indian penal code, namely, sections 193 to 196 (both inclusive), 199, 300, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in violation to, any proceeding in any court, or(ii) of any offence described in section 463, or punishable under section 171, section 475 or section 476, of the said code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate.(2) where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the court; and upon its receipt by the court, no further proceedings shall be taken on the complaint;provided that no such withdrawal shall be ordered if the trial in the court of first instance has been concluded.(3) in clause (b) of sub-section (1) the term 'court' means a civil, revenue, or criminal court, and includes a tribunal constituted by or under a general, provincial or state act if declared by that act to be a court for the purposes of this section.(4) for the purposes of clause (b) of sub-section (1), a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decree or sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situated.provided that-(a) where appeals lie to more than one court, the appellate court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate;(b) where appeals lie to a civil and also to a revenue court, such court shall be deemed to be subordinate to the civil or revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.7. on a careful consideration of the order of the lower court, the provisions of the indian penal code and the code of criminal procedure stated supra and the judgment of the courts stated supra, i am of the view that the trial court has taken the view that a preliminary enquiry is necessary and therefore, it has ordered notices. therefore, there is no error in jurisdiction of the trial court directing a preliminary enquiry held in raja rao v. emperor a.i.r. 1926 mad. 1008, which was later followed by a division bench judgment of calcutta high court in canti v. harcourt : air1931cal436 . the division bench which decided the case reported in varadarajulu naidu v. emperor : air1937mad716 , had no occasion to consider the judgment reported in raja rao v. emperor a.i.r. 1926 mad. 1008. similarly the division bench which decided the case reported in a.i.r. 1926 mad. 1005 had no occasion to consider the judgment reported in narayana nadan, in re. a.i.r. 1915 mad. 229.8. in the circumstances, the petition filed under order 9, rule 13, c.p.c., is maintainable and the lower court has exercised its jurisdiction correctly and there is no illegality or irregularity in the order passed in i.a. nos. 186 and 187 of 1991.9. in the result, both the civil revision petitions are dismissed. in the circumstances, there is no order as to costs.

Judgment:
ORDER

Swamidurai, J.

1. Civil Revision Petition No. 3278 of 1991 is filed against the order made in I.A. No. 186 of 1991 in O.P. No. 1 of 1991 on the file of the learned District Munsif, Uthagamandalam. O.P. No. 1 of 1991 was filed by the petitioner herein against B.M. Billan and B. Rani in the court of the District Munsif, Uthagamandalam under Section 193, I.P.C. and under Sections 195 and 340, Crl.P.C, praying for sanction to prosecute the respondents therein. That O.P. was posted on 12.12.1990 for notice to respondents and Mr. W.P. Sivaraj, advocate entered appearance for the respondents in the O.P. on 6.2.1991 and time was requested for filing counter. But he filed the vakalat on 20.2.1991 and prayed for further time for filing counter. The O.P. was adjourned to 20.3.1991 for the said purpose. But on that date, no counter was filed by the respondents and again it was adjourned to 24.1991 for counter finally. On 2.4.1991 counter was not filed. Again it was adjourned to 12.4.1991 for counter. Even on that date, it was not filed. The respondents absented themselves in the lower court and so they were called and set ex parte. Counsel for the respondents Mr. M.P. Sivaraj also did not attend the court on that date. The case of the petitioner in the O.P. is that the respondents gave false evidence in O.S. No. 263 of 1989 of the said court. The trial court framed points for consideration, namely, whether the respondents gave false evidence in O.S. No. 263 of 1989 on his file and if so, whether the respondents are liable to be prosecuted under Sections 193 and 109 I.P.C. and the third point is whether that was a fit case for granting sanction for prosecution of the two respondents. The trial court observed in its order that though it was not necessary that there should be a preliminary enquiry under Section 340, Crl.P.C. yet the lower court gave an opportunity to the respondents to put forward their contentions. After discussion, the trial court found that it was a fit case for granting sanction for prosecution against the respondents and as an order was passed accordingly on 30.4.1991. B.M. Billan, the first respondent in the O.P. filed I.A. No. 186 of 1991 under Order 9. Rule 13, C.P.C., for setting aside the exparte decree dated 30.4.1991 in O.P. No. 1 of 1991 stating that he is a teacher in a school, that on the date when the O.P. was posted finally for filing his counter, he could not obtain leave to meet his advocate for filing counter and so his absence was not wilful but bona fide. This petition was resisted by the petitioner (Puthan) in the O.P. by filing a counter stating that the absence of the petitioner in the I.A. No. 186 of 1991 is wilful and that the provision under Order 9, Rule 13, C.P.C. does not apply to the proceedings at all. According to him, the order passed in the O.P. is not at all a decree as per the provisions of the Code of Civil Procedure. Learned District Munsif allowed that application by his order dated 8.11.1991 on condition that the petitioner in I.A. No. 186 of 1991 should pay a sum of Rs. 100 as costs before 28.11.1991 failing which the said application would stand dismissed. The trial court posted that application I.A. No. 186 of 1991 to 29.11.1991 for compliance. As against that order made in I.A. No. 186 of 1991 dated 8.11.1991 C.R.P. No. 3278 of 1991 is filed in this Court. C.R.P. No. 1238 of 1992 : B. Rani, the second respondent in O.P. No. 1 of 1991 filed I.A. No. 187 of 1991 for setting aside the ex parte order passed under 0.9, Rule 13, C.P.C. stating that she was a student in a Government teachers Training School at Kothagiri that she could not meet her counsel on 30.4.1991 for filing the counter as she could not get leave on that date and so that her absence was not wilful but bona fide. This I.A. No. 187 of 1991 was resisted by Puthan the petitioner in the O.P. on the ground inter alia that Order 9, Rule 13, C.P.C. will not apply since the order passed in the O.P. is not a decree as per C.P.C. and that the absence of the petitioner Rani is wilful. The lower Court passed an order on 8th November, 1981 allowing I.A. No. 187 of 1991 on condition that the petitioner in I.A. No. 187 of 1991 should pay a sum of Rs. 100 as costs to the respondents in the LA within 28.11.1991 failing which the said application would be dismissed and posted the I.A. to 29.11.91. As against that order dated 8.11.1991 made in I.A. No. 187 of 1991, C.R.P. No. 1238 of 1992 is filed.

2. Mr. K. Sampath, learned Counsel for the petitioner in both the civil revision petitions filed written arguments contending that the application I.A. No. 187 of 1991 filed under Order 9, Rule 13, C.P.C. is not at all maintainable and that if at all the respondent is aggrieved with the order madeec parte in O.P. No. 1 of 1991, he has to file an appeal as against that order. The second contention of Mr. K. Sampath is that no enquiry is necessary and that the lower court has committed an error in ordering notice and calling upon the respondent to show cause as to why the application filed under Section 193, I.P.C. and also under Sections 195 and 340 Crl.P.C. should not be ordered. In support of his contention, he relied upon the decisions in the case of In re. Narayana Nadan A.I.R. 1915 Mad. 229, Raja Rao v. Emperor A.I.R. 1926 Mad. 1008, Canti v. Marcourt : AIR1931Cal436 , Varadarajulu Naidu v. Emperor : (1937)1MLJ396 .

3. Learned Counsel for the respondents Mr. Ashok Menon filed his arguments in writing. His contention is that when an O.P. is filed under the abovesaid provisions of the Act seeking for sanction to prosecute and if an exparte order is passed, a petition under Order 9, Rule 13, C.P.C. is maintainable and in support of that he relied upon the decision in the case of Kumaravel v. Shanmugha Nadar : AIR1940Mad465 . The Division Bench held that a civil court does not cease to be a civil court when it is considering the application made to it under Section 476, C.P.C. (Old Act) and if for the purpose of that application it remains a civil court, it must be governed by the provisions of the code of Civil Procedure and not by those of the Code of Criminal Procedure. It was further held that where an order has been passed by a Civil Court under Section 476, Crl.P.C. (old Act), Section 439, Crl.P.C. has no application. Section 476, Crl.P.C. of the old Act corresponds to Section 340, Crl.P.C. of the New Act. The Full Bench decision of our High Court reported in A.I.R. 1940 Mad.465 Supra has been later followed by the Calcutta High Court in the decision in the case of Nadiarila Pariabad v. Sentimay Biswan . Learned single Judge of Calcutta High Court held that the provisions of Order 9, Rule 13, C.P.C. are attracted and an application for rehearing of the proceedings under Section 340, CrL.P.C. is maintainable. I am bound by the Full Bench Judgment of this Court referred to above. Therefore, I am of the view that the application under Order 9, Rule 13, C.P.C. is maintainable and I answer this point accordingly.

4. With respect to the second contention that no enquiry is necessary at all and that even notice ought not to have been sent to the respondent to show cause to the proceedings made in O.P. No. 1 of 1991. Mr. K. Sampath, learned Counsel for the petitioner contended that in view of the above decisions relied upon by him, a preliminary enquiry itself is not at all contemplated and that the lower court has exceeded its jurisdiction in ordering notice in I.A. Nos. 187 of 1991 and 186 of 1991 in O.P. No. 1 of 1991. He relied upon the decision in the case Varadarajulu Naidu v. Emperor : (1937)1MLJ396 . In that decision, a Division Bench of this Court has held that any High Court Judge has jurisdiction to make complaint under Section 476, C.P.C. when fabricated documents are produced during trial of suit in exercise of original civil jurisdiction. The Division Bench has also held as follows:

When a suit is tried by a Judge of the High Court, the term 'Court' occurring in Section 476, Crl.P.C. must be taken to mean 'the High Court'. There is nothing to prevent any Judge of the High Court from dealing with the matter, though as a matter of convenience this would seldom be done. Where therefore, some fabricated documents are put in evidence during trial of a suit by the High Court and the trial Judge is absent, the officiating Chief Justice of that High Court has jurisdiction to make a complaint under Section 476, Crl.P.C.

The Division Bench further observed that there is nothing to prevent any Judge of the High Court from dealing with the matter though as a matter of convenience this would seldom be done, and the matter was in this case placed before the officiating Chief Justice as the trial Judge was absent at the time. The Court may, under Section 476, Crl.P.C. make the complaint on the application made to it or otherwise, and it need not hold a preliminary enquiry, Notice to the person proceeded against is not essential, and it is apparent from the order itself that it was passed by officiating Chief Justice in the exercise of ordinary original jurisdiction. There is therefore no substance in the contention that the Officiating Chief Justice had no jurisdiction to pass the order under Section 476, Crl.P.C., and questions 1 and 3 do not arise. The proper course for the accused was to appeal against the order under Section 476, Crl.P.C., and it is queer that objection should have been raised and permitted before the Magistrate. In the decision in the case of Canti v. Marcourt : AIR1931Cal436 , learnedsingle Judge of the Calcutta High Court has held as follows:

When a person is alleged to have given false evidence before arbitrator, an application under Section 476, in the Court in which the Suit was instituted is necessary. But the question whether a preliminary enquiry is necessary or not will depend upon the facts and circumstances of each case. Where the application is supported not by oral evidence, but only by documents, no further preliminary inquiry is necessary beyond that which the Court makes on the materials before it.

In such cases it is not necessary that a notice should be given to the person against whom the order is sought on an application under Section 476.

There is the further question whether the person, against whom the application is made, should be given an opportunity of being heard upon the preliminary enquiry but this, in my judgment, is generally to be deprecated. It might result, in some measure, in converting the enquiry into an enquiry not dissimilar from that which it would be the duty of a Magistrate to make and it might involve the person against whom the order is sought in himself giving evidence on oath by affidavit or otherwise which would be contrary to the spirit of the criminal law in this country. I do not therefore consider that it is necessary that notice should be given to the person against whom the order is sought on an application such as this. He will, moreover, have every opportunity of being heard by the Magistrate upon whom the duty will be cast of proceeding according to law, if a complaint is made. I find that it is expedient in the interest of justice that an enquiry should be made into the offences specified in the petition in respect of the statements of Marcourt, which I have quoted; and I direct that a complaint thereof in writing shall be prepared for signature as required to be forwarded to the Chief Presidency Magistrate for him to proceed in accordance with the law.

In the decision in the case of In re Narayana Nadan, In re. A.I.R. 1915 Mad. 229, a Division Bench of this Court consisting of Wallis and Sadasiva Ayyar, JJ has held as follows:

Per Wallis, J.: Section 195, Crl.P.C., does not enumerate the considerations which should guide the courts in granting sanctions nor does it prescribe indefeasible that the Court should hold a fresh enquiry and take evidence before granting sanction. Such a proceeding is quite unnecessary in a case, where the court has acquired a knowledge of the facts in the course of the proceedings in or in relation to which the offence is alleged to have been committed. Queen Empress v. Sheik Beari I.L.R. 10 Mad. 232 distinguished. The dicta contained is some of the decided cases that the order should be made on judicial evidence do not mean that such evidence must have been given on the application for sanction or even on the hearing of the complaint itself.

In the judgment in the case of Raja Rao v. Emperor A.I.R 1926 Mad. 1008, a Division Bench of this Court (Devadoss and Waller, JJ.) has held as follows:

What a Court has to decide under Section 476 is (a) whether an offence of the kind contemplated appears to have been committed; (b) Whether it is expedient in the interest bf justice that it should be further enquired into. In order to arrive at a decision the Court may, if it thinks fit, hold such preliminary enquiry as it considers necessary. The nature method and extent of the preliminary enquiry are entirely at its discretion. The enquiry need not be such as to satisfy the court that an offence actually has been committed by merely that an offence appears to have been committed. If, therefore, a court holds such an enquiry, the persons against whom it is carried on, cannot claim to cross-examine the witness.

In the Judgment in the case of Canti v. Marcourt : AIR1931Cal436 a Division Bench of Calcutta has held as follows:

Where a person is alleged to have given false evidence before arbitrator, an application under Section 476, in the court in which the Suit was instituted is necessary. But the question whether a preliminary inquiry is necessary or not will depend upon the facts and circumstances of each case. Where the application is supported not by oral evidence, but only by documents, no further preliminary inquiry is necessary beyond that which the court makes on the materials before it.

In such cases it is not necessary that a notice should be given to the person against whom the order is sought on an application under Section 476.

The Division Bench of Calcutta High Court has also referred to the Divison Bench judgment at this Court in Raja Rao v. Emperor A.I.R 1926 Mad. 1008.

5. Section 340, Crl.P.C. of 1973 is equivalent to Section 476, Crl.P.C. of 1898. Section 340, Crl.P.C. of 1973 reads as follows:

340. Procedure in cases mentioned in Section 195: when, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding In that Court, such court may, after such preliminary inquiry, if any as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and Court thinks it necessary so to do, send the accused in custody to such magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195.

(3) A complaint made under this Section shall be signed,-

(a) Where the court making the complaint is a High Court, by such officer of the court as the Court may appoint;

(b) In any other case, by the presiding officer of the Court.

(4) In this section 'Court' has the same meaning as in Section 195.

6. O.P. No. 1 of 1981 was filed under Section 193, I.P.C. and under Sections 195 and 340, Crl.P.C. Section 193, I.P.C. reads as follows:

193. Punishment for false evidence: whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Explanation 1: A trial before a court martial is a judicial proceeding.

Explanation 2: An investigation directed by law preliminary to a proceeding before a court of justice, is a stage of a judicial proceeding, though that investigation may not take place before a court of justice.

Explanation 3: An investigation directed by a court of justice according to law, and conducted under the authority of a court of justice, is a stage of a judicial proceeding, though that investigation may not take place before a court of justice.

Section 195, Crl.P.C. reads as follows:

195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence: (1) No Court shall take cognizance - (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive of the Indian Penal Code, or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, Sections 193 to 196 (both inclusive), 199, 300, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in violation to, any proceeding in any Court, or

(ii) of any offence described in Section 463, or punishable under Section 171, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of any offence specified in Sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under Clause (a) of Sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the court; and upon its receipt by the court, no further proceedings shall be taken on the complaint;

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In Clause (b) of Sub-section (1) the term 'Court' means a Civil, Revenue, or Criminal Court, and includes a tribunal constituted by or under a General, Provincial or State Act if declared by that Act to be a court for the purposes of this section.

(4) For the purposes of Clause (b) of Sub-section (1), a Court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decree or sentences of such former Court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situated.

Provided that-

(a) Where appeals lie to more than one court, the appellate court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate;

(b) Where appeals lie to a civil and also to a revenue court, such court shall be deemed to be subordinate to the civil or revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

7. On a careful consideration of the order of the lower court, the provisions of the Indian Penal Code and the Code of Criminal Procedure stated supra and the judgment of the courts stated supra, I am of the view that the trial court has taken the view that a preliminary enquiry is necessary and therefore, it has ordered notices. Therefore, there is no error in jurisdiction of the trial Court directing a preliminary enquiry held in Raja Rao v. Emperor A.I.R. 1926 Mad. 1008, which was later followed by a Division Bench judgment of Calcutta High Court in Canti v. Harcourt : AIR1931Cal436 . The Division Bench which decided the case reported in Varadarajulu Naidu v. Emperor : AIR1937Mad716 , had no occasion to consider the judgment reported in Raja Rao v. Emperor A.I.R. 1926 Mad. 1008. Similarly the Division Bench which decided the case reported in A.I.R. 1926 Mad. 1005 had no occasion to consider the judgment reported in Narayana Nadan, In re. A.I.R. 1915 Mad. 229.

8. In the circumstances, the petition filed under Order 9, Rule 13, C.P.C., is maintainable and the lower court has exercised its jurisdiction correctly and there is no illegality or irregularity in the order passed in I.A. Nos. 186 and 187 of 1991.

9. In the result, both the civil revision petitions are dismissed. In the circumstances, there is no order as to costs.