Shabir Hussein Bholu v. State of Maharashtra

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 The Court, therefore, teak the view that's. 479-A, Cr.P.C. has not imp1iedly repealed s. 476 of the Code in respect of alf cases of witnesses giying or fabricating (alse· ev_idence i.n judj­ cial proceedings and ·so tlie - provisions of s. 478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. Learn­ ed 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. 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 inten­ tionally 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 pro­ visions 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 distinc­ tion 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 evi­ dence 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 com­ plaint, 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 dispos­ ing of the proceedings before it that for the eradica­ tion 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 pro­ ceed 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 proceed­ ing 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_e­ dure 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 judg­ ment 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 re­ quires him to refer the· case to the High Court under s. 307, Cr. P.C. In either case he gets an opportuni­ ty 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 applicabi­ lity 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.proceed­ ing. 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 Committ­ ing 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 culmi­ nated 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 Crimi­ nal 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 Govtrnment- 0ff'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