B.K. Pal Chaudhry vs The State Of Assam

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 7 October, 1959

Coram: A.K. Sarkar, M. Hidayatullah, S.K. Das

In this case, the Supreme Court of India recorded that the appellant, Dr. B. K. Pal Chaudhry, was a medical doctor who at the relevant time held the position of Civil Surgeon of Dibrugarh. He had been called as a witness in a criminal proceeding designated as G. P. Case No. 654/54, in which three individuals faced charges that included an offense under section 376 of the Indian Penal Code for rape. The trial of that case was conducted before a jury, which returned a verdict of acquittal on the rape charge. An appeal against that acquittal was filed before the High Court of Assam, and the High Court set aside the jury’s finding and convicted two of the accused persons.

The alleged rape was said to have occurred in the afternoon of 19 March 1954 on a minor girl named Roheswari Chetia. Later that same day, at six o’clock in the evening, the girl was examined by Dr. Dhanbir Pait, who was in charge of the Moran Dispensary located near the place where the alleged offense took place. The police caused the girl to be taken for a further medical examination the next day in the district town of Dibrugarh, where she was examined by Dr. Mahibulla, who served as an assistant to the appellant in his capacity as Civil Surgeon. On 21 March 1954 the police again produced the girl before the appellant, who performed another examination on that date. The court did not consider the reasons for these repeated examinations.

During the trial, Dr. Pait was called as a prosecution witness, while the appellant and Dr. Mahibulla were called by the accused as defense witnesses. Dr. Pait testified that he was certain the girl had been raped. He reported finding two circular tooth-mark impressions on her cheeks, a reddish circular mark on her left breast, and that the hymen was ruptured. He further expressed the opinion that the rupture of the hymen had taken place on the same day he examined the girl. In contrast, Dr. Mahibulla testified that although the hymen was indeed ruptured, the rupture had occurred nine or ten days before the alleged incident and therefore was not recent. The appellant himself testified that the marks on the girl’s cheeks were the result of insect bites, that the hymen was not ruptured, and that he found no physical evidence of rape on her person. Thus, the testimony of the prosecution doctor was directly contradicted by the testimonies of the two doctors called by the defense concerning the condition of the hymen. The High Court, after considering the evidence of the prosecution doctor and other supporting evidence, allowed the appeal against the acquittal and concluded that the offense of rape had been established, without needing to refer to the remaining evidence produced in the trial.

The Court noted that the conviction of the two accused was founded on the testimony of the doctor who had been called by the prosecution, together with other evidence produced by that side. The Court considered it unnecessary to refer, for the purpose of this appeal, to the remaining evidence that had been introduced. The appeal before the High Court was initially heard by the Chief Justice, Sarjoo Prosad, and Justice Deka. After allowing the appeal and thereby convicting the two accused, those learned Judges, on the same day, issued an order directing that a notice be issued to the appellant. On 31 July 1958 a notice was issued to Dr B. K. Pal Chaudhury, designated as Deponent 2, who was a retired Civil Surgeon of Dibrugarh, requiring him to show cause why he should not be prosecuted under section 193 of the Indian Penal Code for allegedly giving false evidence in connection with General Police Case No. 654/54, also recorded as Lakhimpur Case No. 72 of 1955, in the matter styled The State v. Mahendra Nath Barua and Others. The notice was duly served on the appellant, who then filed a response. The matter was subsequently heard by Justice Deka together with Justice Mahrotra. Those Judges concluded that the case warranted the filing of a complaint against the appellant for an offence punishable under section 193 of the Indian Penal Code, and they directed the Registrar of the High Court to lodge the complaint with the Court of the Deputy Commissioner in Lakhimpur. The present appeal was filed challenging that order directing the lodging of the complaint.

The Court explained that sections 476 to 479A of the Code of Criminal Procedure prescribe the procedure for lodging complaints in cases of false evidence as defined by section 193 of the Indian Penal Code, as well as for other offences mentioned therein. Section 479A was introduced into the Code by the Code of Criminal Procedure (Amendment) Act, 1955. Sub-section (6) of that section states: “No proceedings shall be taken under sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this section.” The Court observed that the present proceedings were specifically directed to be taken under the provisions for false evidence, and that the counsel appearing for both parties agreed that sub-section (6) of section 479A therefore makes sections 476 to 479 inapplicable. Consequently, the Court found it unnecessary to examine the provisions of those sections. The Court then set out the material portion of section 479A(1), which reads: “When any … Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence at 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.”

Section 479A, sub-section (5) provides that when an appeal is taken from a decision of a civil, revenue or criminal court and no complaint has been made under sub-section (1), the appellate court may exercise the power that would otherwise belong to the lower court to make such a complaint. If the appellate court decides to make the complaint, the provisions of sub-section (1) apply in the same manner, but the court must not issue any order without first giving the person who will be affected an opportunity to be heard.

The appellant argued that the statutory requirements of this section had not been observed. The court agreed that this argument was well founded. In the present matter, the complaint was not filed by the trial court but by the appellate court, so sub-section (5) governs the procedure. Consequently, the conditions prescribed in both sub-section (1) and sub-section (5) must be satisfied. The combined effect of these provisions is that any court intending to lodge a complaint must first record a finding, on the basis of its opinion, that the witness deliberately gave false evidence, and that it is necessary for the eradication of perjury and the interests of justice to prosecute the witness. Additionally, the court must afford the prospective witness a chance to be heard on whether a complaint should be made.

Upon review, the court concluded that the high court failed to meet any of these statutory conditions when it directed that a complaint be filed. First, the high court did not record any finding that the appellant had intentionally given false evidence, nor did it find that it was expedient to proceed against him in order to curb perjury and serve justice. The order that directed the issuance of a notice appears to be the sole order relating to the matter, and it contains no such finding. Moreover, the judgment of the main appeal, in which the appellant had testified, also lacks any finding of intentional falsehood on his part.

Second, the high court did not provide the appellant with a proper hearing, a right that is expressly guaranteed by sub-section (5). Justice Deka, in the judgment ordering the complaint, asserted that the procedure prescribed by section 479A of the Criminal Procedure Code had been substantially complied with, except that to avoid prejudice to the appellant at the trial stage…

In this matter, the Court observed that the reasons for suspecting the witness of having committed perjury had not been examined in an elaborate or specific manner, and the Court found this approach unsatisfactory for addressing the issue that had been raised. The Court then turned to the observations made by Justice Mehrotra, stating that, in the Court’s view, those observations were clearly erroneous. According to the advocate representing the appellant before the High Court, it had been argued that because the High Court had chosen to rely on the testimony of other medical experts, it could not be conclusively held that the appellant’s evidence was false or that the appellant had deliberately offered false evidence; furthermore, the argument contended that the trial court, after hearing the appellant, could arrive at a different conclusion on those points. Justice Mehrotra, while addressing those contentions, remarked that such matters might be considered by the trial court but could not be taken up by this Court at the present stage, adding that any comment on the merits by this Court would likely prejudice the trial. He further noted that section 479A had been introduced with the purpose of avoiding additional inquiry, an inquiry that would otherwise be required under section 476. The Court highlighted two additional observations made by Justice Mehrotra, which it described as highly material to the present appeal. The first observation was quoted as follows: “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.” The second observation was quoted as: “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.” From these statements, the Court inferred that Justice Mehrotra considered himself bound by the findings of the Bench that had heard the appeal, specifically the finding that the appellant had intentionally given false evidence. The Court pointed out that, earlier, it had observed that the Bench hearing the appeal had not actually made such a finding. Nevertheless, the Court emphasized that the statute, by providing in sub-section (5) of section 479A that no order directing a complaint may be issued without first giving the affected person an opportunity to be heard, intended that after such a hearing the Court should be free to decide whether to lodge a complaint. The Court explained that without this hearing requirement, there would be no purpose in directing that a hearing be held. Consequently, after granting the hearing, the Court may decide not to lodge a complaint either because it is satisfied that the witness did not give false evidence, that any false evidence was not given intentionally, or that making a complaint would not be expedient in the interests of justice or in the effort to eradicate the evils of perjury. By asserting that it was not open to him “to upset” the finding of the Bench hearing the appeal that the appellant had intentionally given false evidence, Justice Mehrotra, the Court noted, effectively denied the appellant the hearing that sub-section (5) of section 479A requires.

Mehrotra, J., did not provide the appellant with the hearing that sub-section (5) of section 479A required, because he believed that proceeding without a hearing would best protect the appellant from prejudice at trial on any complaint that might arise. The Court found that the alleged prejudice was more imagined than real. The finding required by section 479A(1) was determined to be only of a prima facie nature and therefore it could not have any binding effect at trial on a complaint made pursuant to that finding. Moreover, the desire to avoid any possible prejudice could not justify a clear violation of the explicit terms of the statute. The order of the High Court could not be upheld even if it were assumed that Deka, J., had taken the correct view, because another learned judge had adopted an incorrect perspective, and it was impossible to ascertain what the decision would have been had the correct approach been applied. Consequently, the Court concluded that the appealed order had been issued in breach of the express provisions of sub-sections (1) and (5) of section 479A, and therefore could not be allowed to remain in force.

The counsel for the respondent, the State of Assam, suggested that the Court might examine the evidence and lodge a complaint itself. The Court declined to adopt that course, noting that doing so would require a full review of the entire case and all evidence, which were not before it. A further suggestion was made that the matter should be remanded to the High Court to give the appellant a proper hearing; the Court rejected this proposal as well, stating that the only appropriate action was to set aside the High Court order that had been issued in violation of the statutory provisions. The Court held that any further steps required by law should be determined by the High Court. Accordingly, the order of the High Court was set aside, the appeal was allowed, and the relief sought by the appellant was granted.