Shabir Hussein Bholu vs State of Maharashtra

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 92 of 1961

Decision Date: 28 September 1962

Coram: J.R. Mudholkar, Syed Jaffer Imam, N. Rajagopala Ayyangar

In this case, the Supreme Court of India delivered its judgment on 28 September 1962 in the matter of Shabir Hussein Bholu versus the State of Maharashtra. The judgment was authored by Justice J. R. Mudholkar, who sat on a bench together with Justice Syed Jaffer Imam and Justice N. Rajagopala Ayyangar. The petitioner was Shabir Hussein Bholu and the respondent was the State of Maharashtra. The formal citation of the decision is reported as 1963 AIR 816, 1963 SCR Supl. (1) 501, and it has been cited subsequently in E 1964 SC 725 (9), E 1966 SC 1863 (1, 6), F 1968 SC 1422 (4) and RF 1973 SC 2190 (5). The statutory provision in issue was Section 479A of the Code of Criminal Procedure, 1898 (Act V of 1898), together with Sections 476 and 479, concerning the trial of perjury by witnesses, the legality of committal proceedings, and the propriety of ordering prosecution after the conclusion of a trial.

The headnote of the judgment records that the appellant had appeared as a witness in a jury trial for murder and had given a statement before the trial that conflicted with a statement he had earlier made before the committing court. After the trial concluded and the judgment was delivered, the Sessions Judge issued a separate order directing the prosecution of the appellant on the ground that he had intentionally given false evidence. The Court held that the provisions of Section 479A had not been complied with and consequently no cognizance of the offence could be taken.

Justice Mudholkar explained that two conditions must be satisfied before the powers under Section 479A may be exercised: first, the court must form the opinion that the person has committed one of the two categories of offences specified in Section 479A; second, the court must conclude that, for the eradication of the evils of perjury and in the interests of justice, it is expedient to prosecute the person. Both the opinion and the conclusion must be formed at the time the judgment or final order in the trial is delivered; the court cannot later invoke Section 476 to lodge a complaint against the witness. The Court further observed that the provisions of Sections 476 to 479 are entirely excluded when the offence falls within the scope of Section 479A, and where no action is taken under Section 479A, no action may be taken under Sections 476 to 479.

The Court approved the earlier authorities of Purshotam Lal v. Madan Lal, A.I.R. (1959) Punj. 145, and Amolak v. State, A.I.R. (1961) Raj. 220. It distinguished the decisions in Durga Prasad Khosla v. State of U. P., A.I.R. (1959) All. 744; Lal Behari v. State, A.I.R. 1962 All. 251; Jaibir Singh v. Malkhan Singh, A.I.R. (1958) All. 364; and State of Bombay v. Premdas Sukritdas Gadhewal Koshti, A.I.R. 1960 Bomb. 483, which were disapproved. The Court also distinguished Badullah v. State, A.I.R. 1961 All. 397. It concluded that the provisions of Section 479A applied to the present case and that the presence of a jury did not prevent the Sessions Judge from recording the findings required by Section 479A. While assessing whether to proceed under Section 479A, the Sessions Judge was at liberty to consider the truth or falsity of the evidence tendered at the trial.

In the matter before the Court, it was held that the role of the Sessions Judge during committal proceedings includes the authority to determine whether evidence presented at trial is true or false, and that even if a statement made by the appellant before the committing magistrate is false, the Sessions Judge retains the power to act under section 479A of the Code of Criminal Procedure. The judgment rendered in criminal appellate jurisdiction, identified as Criminal Appeal No 92 of 1961, arose by special leave from the judgment and order dated 18 January 1961 of the Bombay High Court in Criminal Revision Application No 91 of 1961 (filed by the State) and converted from Criminal Appeal No 1131 of 1960. Counsel for the appellant was represented, while counsel for the respondent appeared for the State. The judgment was delivered on 28 September 1962 by Justice Mudholkar.

The principal question the Court examined was whether the Chief Presidency Magistrate of Bombay was precluded from taking cognizance of a complaint against the appellant under section 193 of the Indian Penal Code because the Additional Sessions Judge of Bombay, who had filed that complaint, had allegedly failed to observe the procedure prescribed in section 479A of the Code of Criminal Procedure. The appellant had served as a prosecution witness in the trial of an accused named Rafique Ahmed before the Additional Sessions Judge of Greater Bombay, concerning charges of murder and abetment of murder together with two other accused persons. During examination before the committing magistrate, the appellant testified that he had personally observed Rafique Ahmed stabbing the deceased, identified as Chand, while the victim was attempting to flee. However, at the subsequent trial before the Court of Sessions, held three months later, the appellant gave a markedly different account, stating that he was standing on the threshold of his house when he saw Rafique Ahmed and two associates approaching from the direction of the Muhammaden burial ground. He described that one of the persons carried a dagger while the others possessed only sticks, and that he ceased observing the scene because his children became frightened, prompting him to shut the door and remain inside. The appellant expressly disclaimed any knowledge of the events that followed and, under cross‑examination, asserted that it was untrue that he had actually seen Rafique Ahmed stabbing the deceased.

In addressing the jury, the learned Additional Sessions Judge highlighted the inconsistency between the appellant’s two statements concerning a specific portion of the incident. After evaluating the entirety of the evidence, the jury returned a verdict acquitting Rafique Ahmed of the charge under section 302 of the Indian Penal Code, but found him guilty under section 304, first part. The jury also convicted the two other accused persons under section 304, first part, read with section 109 of the Indian Penal Code. Following the conclusion of the trial, the Additional Sessions Judge formed the opinion that proceedings should be initiated against the appellant for the intentional giving of false evidence, and accordingly proceeded to order the commencement of such proceedings.

The Court recorded a separate order that read as follows: “I direct that the Registrar of the Sessions Court for Greater Bombay shall take the necessary steps to prosecute witness Shabir Hussein Bholu for the offence of perjury, in view of his deposition before the Committing Magistrate and his deposition in this Court, both of which were given under oath but are contradictory to each other.” Pursuant to that order, a notice was issued to the appellant requiring him to show cause why he should not be prosecuted under section 193 of the Indian Penal Code for making contradictory statements about the same incident. In response to that notice, the appellant appeared before the Additional Sessions Judge and his counsel argued that the apparently contradictory statements were the result of the appellant’s illiteracy and a confused state of mind. The Additional Sessions Judge rejected those submissions, held the notice to be absolute, and directed that a formal complaint be filed. Consequently, a complaint signed by the judge was lodged before the Chief Presidency Magistrate of Bombay, setting out the statements that had been deemed contradictory. At the trial before the Chief Presidency Magistrate, the appellant raised an objection that the Additional Sessions Judge had not complied with the requirements of section 479‑A of the Code of Criminal Procedure, and therefore the Magistrate could not take cognizance of the alleged offence. The Chief Presidency Magistrate upheld the objection and ordered the appellant’s discharge. The State then filed an application for revision before the High Court. The High Court allowed the revision, set aside the discharge, and remanded the matter for trial before the Chief Presidency Magistrate. In its order, the High Court observed that although the procedural requisites of section 479‑A, CrPC had not been satisfied, the Chief Presidency Magistrate still retained the authority to act on the complaint under sections 476 to 479 of the Code of Criminal Procedure. Chapter XXXV of the Code of Criminal Procedure governs “Proceedings in case of certain offences affecting the administration of justice”. Section 476(1) provides that when any civil, revenue or criminal court is of the opinion that it is expedient, in the interests of justice, to inquire into any offence referred to in section 195(1), clauses (b) or (c), which appears to have been committed in or in relation to a proceeding in that court, such court may, after any preliminary inquiry it deems necessary, record a finding to that effect and make a written complaint, signed by the presiding officer, to a first‑class Magistrate having jurisdiction over the case. The offences covered by clauses (b) and (c) of subsection (1) of section 195 include those punishable under sections 193, 194, and other related provisions.

Section 196, 199, 200, 205 to 211, 228, 463/471, 475 or 476 of the Code of Criminal Procedure were cited. By virtue of section 89 of Act 26 of 1955, section 479‑A was inserted into Chapter XXXV of the Code. The heading of that provision reads “Procedure in certain cases of false evidence”. That provision stipulates that notwithstanding anything contained in sections 476 to 479 inclusive, when any civil, revenue or criminal court is of the opinion that a person appearing before it as a witness has intentionally given false evidence at any stage of the judicial proceeding, or has intentionally fabricated false evidence for use at any stage, and when, for the eradication of perjury and fabricated evidence and in the interests of justice, it is expedient that such witness be prosecuted for the offence apparently committed, the court must, at the time it delivers its judgment or final order disposing of the proceeding, record a finding to that effect, state the reasons for that finding, and may, if it thinks fit, after giving the witness an opportunity to be heard, forward a written complaint to a first‑class magistrate having jurisdiction to deal with the offence. Sub‑section (6) of section 479‑A provides that no proceedings shall be taken under sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence if proceedings may be taken against the same person under section 479‑A. Accordingly, keeping in mind the non obstante clause at the commencement of section 479‑A and the provisions of sub‑section (6), it follows that only the provisions of sub‑section (1) of section 479‑A should be resorted to by the court for making a complaint against a person for intentionally giving false evidence or intentionally fabricating false evidence at any stage of the proceeding before it. Parliament, when it enacted section 479‑A, did not amend classes (b) and (c) of section 195(1) of the Code of Criminal Procedure, nor sections 193, which makes giving false evidence in a judicial proceeding punishable, sections 194 and 195, which make giving or fabricating false evidence with intent to procure the conviction of a person for certain offences punishable, and sections 463 and 467, which deal with offences of forgery and the use of forged documents as genuine; these provisions remain within classes (b) and (c) of sub‑section (1) of section 195, Cr. P.C. In view of this, counsel for the State argued that Parliament, by not amending section 195(1), classes (b) and (c), made it clear that the procedure in section 479‑A is only an alternative procedure to be followed in what he…

The counsel argued that the provision described the most “flagrant cases.” To support this contention, he cited the judgment in Durga Prasad Khosla v. State of U.P. (1). That decision held that section 479‑A was introduced to grant the Court extra authority enabling it to deal promptly with the most flagrant or serious instances of intentional false evidence or intentional fabrication of evidence in judicial proceedings. The Court further observed that Parliament’s intention in enacting section 479‑A was to target perjury of a more serious character, while less serious offences that could not be brought within the new provision had to be dealt with under section 476 of the Code of Criminal Procedure. Consequently, the Court concluded that section 479‑A of the Criminal Procedure Code had not impliedly repealed section 476 of the Code insofar as all cases of witnesses giving or fabricating false evidence are concerned, and therefore the provisions of section 476 remained available for proceedings against witnesses whose cases could not be pursued under section 479‑A for various reasons. The counsel also referred to the decision in Lal Behari v. State (2), which arrived at the same conclusion. The judges in that case dissented from the view expressed in Jaibir Singh v. Malkhan Singh (3), which had held that section 479‑A constituted a complete code for dealing with every offence within its scope. Further reliance was placed on Badullah v. State (4), where it was held that the provisions of sections 476 and 479‑A are not co‑extensive, and that section 479‑A was added in Chapter XXXV to equip the Courts with an additional tool for confronting the growing problem of perjury more effectively. It was noted, however, that the issue presently under consideration was whether a Court must proceed against a witness under section 479‑A when that witness’s testimony before the Court contradicted evidence given by the same witness in an earlier, separate judicial proceeding. The Court observed that the present case was distinguishable from the earlier authorities cited, namely (1) A.I.R. (1959) All. 744, (3) A.I.R. (1959) All. 364, (2) A.I.R. (1962) All. 251, and (4) A.I.R. (1961) All. 397. The counsel then cited State of Bombay v. Premdas Sukritdas Chadhewal Koshti (1), where it was held that section 479‑A does not provide an exhaustive, self‑contained procedure covering all classes of perjury, but applies only in situations where the Court, acting suo motu at the time of pronouncing its judgment, records a finding that a person appearing as a witness intentionally gave false evidence or intentionally fabricated false evidence. Accordingly, the Court clarified that section 479‑A applies solely to certain categories of false‑evidence offences, specifically those that are serious, flagrant, and

In the present matter, the Court observed that patent cases of perjury arise where a judge records a finding under section 479‑A(1). In such instances, section 476 is applicable only to those cases in which the judge has not recorded a finding under section 479‑A(1). The Court concluded that subsection (6) of section 479‑A does not bar the operation of sections 476 to 479 in perjury cases. Counsel for the appellant placed reliance on the decision in Parshotam, Lal v. Madan Lal (2), wherein it was held that the provisions of section 479‑A override sections 476 to 479 to the extent that they pertain to giving false evidence or fabricating false evidence by a person who testifies during judicial proceedings. That case emphasized that section 479‑A was enacted to enable courts to address the specified offences more promptly and effectively, and that the provisions were intended to be fair to both parties by permitting swift criminal prosecution and avoiding prolonged harassment. Further reliance was placed on Amolak v. State (3), which endorsed a similar view and added that when a case falls squarely within the ambit of section 479‑A(1) of the Code, the provisions of sections 476 to 479 become inapplicable.

Justice Kapila, speaking for the Court, warned that the introductory language of section 479‑A and the provisions of subsection (6) cannot be ignored. The effect of those provisions is to exclude sections 476 to 479 in relation to offences expressly covered by subsection (1). Restricting the analysis to offences that consist of intentionally giving false evidence “at any stage of a judicial proceeding,” it is true that, under section 476, the court that disposes of the proceeding must primarily act under section 479‑A. No real distinction appears between sections 476 and 479‑A concerning which court may take action. While section 476 allows an action to be initiated suo motu or on application, section 479‑A does not contemplate a formal application. Nevertheless, the provision does not differentiate between flagrant and non‑flagrant offences, nor between serious and less serious offences. To exercise the powers granted by section 479‑A, the court must first form an opinion that the person against whom a complaint is contemplated has committed one of the two categories of offences specified therein. The second requirement is that the court must conclude that, for the eradication of the evils of perjury and the interests of justice, it is expedient to prosecute the witness for the alleged offence.

The Court explained that the purpose of Section 479‑A is to allow prosecution of a witness who has either intentionally given false evidence or intentionally fabricated false evidence, but only when such prosecution serves the interests of justice. After setting out these pre‑conditions, the provision lays down the procedure that the Court must follow. The Court stressed that if it does not hold the opinion that the witness deliberately gave false testimony or deliberately fabricated evidence, there can be no basis for filing a complaint. Even when the Court does form such an opinion, it retains a discretionary power to refrain from lodging a complaint if it concludes that the perjury or fabrication is not of a nature that makes it expedient, in the interests of justice, to proceed. The Court further clarified that this discretion under Section 479‑A does not give the Court a subsequent right to invoke Section 476 and lodge a complaint against the same witness. Section 476 also requires the Court, before making a complaint, to be satisfied that an inquiry into the alleged offence is expedient in the interests of justice. Consequently, the Court rejected any argument that a deliberate refusal to record, at the time of delivering its judgment or final order, that prosecution of the witness is expedient for the eradication of perjury could later be cured by invoking Section 476. The same principle applies whenever the Court has the option to act but chooses not to do so. The Court also dismissed the contention raised by counsel for the respondent that the Court may simply switch between Sections 479‑A and 476, proceeding under the latter if it elects not to act under the former.

According to the Court, the jurisdiction to lodge a complaint against a person arises solely from the fact that the person has given false evidence or fabricated false evidence at any stage of the proceeding that the Court has disposed of. The statutory conditions that must be satisfied and the procedural steps that the Court must follow in exercising its jurisdiction and making a complaint under Section 479‑A are distinct from the basic jurisdictional criteria that empower the Court to make a complaint in the first place. From this distinction, the Court inferred that Section 476 is a general provision governing the procedure for a wide range of offences that affect the administration of justice, including offences listed under Sections 193 to 195 and Section 471 of the Code of Criminal Procedure. However, only the Court before which the alleged witness appeared as a witness and which ultimately disposed of the case has the authority to lodge a complaint under Section 476. In light of this analysis, the Court concluded that the alternative view expressed in the cited authorities is untenable.

In this case, the Court observed that the interpretation drawn from the decisions relied upon by counsel for the petitioner was erroneous, and that the position expressed in the judgments of Parshotam Lal (1) and Amolak (2) was correct. Those earlier decisions held that the provisions of sections 476 to 479 of the Code of Criminal Procedure are wholly excluded when the alleged offence falls within the category described in section 479‑A(1). Counsel for the petitioner then advanced two separate arguments as to why section 479‑A, Cr.P.C. should not be applicable to the present matter. The first argument, according to counsel, was that the trial had been conducted by an Additional Sessions Judge assisted by a jury, and that under such circumstances the judge would have no opportunity to record, in his judgment, a finding of the type required by section 479‑A(1) together with the reasons for such a finding. The second argument relied upon the fact that the complaint lodged by the Additional Sessions Judge referred to contradictory statements: one statement had been made before the Judge himself and another different statement had been made before the Committing Magistrate. Counsel asserted that, in a situation where contradictory statements are alleged, the only provision under which a complaint could be instituted is that contained in section 476, Cr.P.C. Regarding the first contention, the Court explained that although the jury is responsible for delivering a verdict on the guilt or innocence of the accused, the Judge retains the authority to either accept or reject that verdict. Consequently, the Judge must prepare a concise judgment either affirming or rejecting the jury’s decision. If the Judge rejects the verdict, the law mandates that he refer the matter to the High Court under section 307, Cr.P.C. In either scenario—whether the verdict is accepted or rejected—the Judge obtains the opportunity to record the type of finding contemplated by section 479‑A. Concerning the second contention, the Court noted that counsel had relied on the decision in Badullah (3). That judgment had held that when contradictory statements are made in two distinct proceedings, it cannot be said with certainty that the statement made in one proceeding is false, unless there is sufficient material before the Court to reach a conclusion that the statement made before it is false and thereby attracts the operation of section 479‑A. The Badullah decision further held that if the Court is of the opinion that the statement made in the earlier proceeding is false while the statement made before it is likely to be true, the Court does not possess the power to proceed under section 479‑A. Finally, the Court observed that in his charge to the jury, the learned Additional Sessions Judge presented to the jurors both the evidence furnished by the appellant at trial and the evidence given by the appellant before the Committing Magistrate, and asked the jurors to decide whether to accept one version or the other.

In the trial the Additional Sessions Judge instructed the jury to consider whether to accept the appellant’s testimony, to reject it, or to reject both testimonies. He further asked the jurors to decide whether the reference made by the appellant to “Chand” before the Committing Magistrate actually referred to the deceased Abu Kana. After hearing the evidence, the jury returned a guilty verdict under section 304, Part 1. The record shows that it cannot be said that the jury, in reaching that verdict, relied upon the appellant’s evidence presented before the Court or that it rejected that evidence. However, after accepting the jury’s verdict, the judge retained the authority to determine whether the evidence presented at trial was true or false, a step he elected not to take. For the purpose of assessing the applicability of section 479‑A(1) of the Code of Criminal Procedure, it must be noted that in a jury trial the judge may independently conclude that a statement made at trial is false. If the judge arrives at such a conclusion, the judgment in Badullah’s case correctly states that the judge has no alternative but to proceed under section 479‑A(1). The issue then arose whether the judge could invoke this provision when he is unable to form a definitive opinion as to whether the evidence tendered at trial, or the evidence presented before the Committing Magistrate, is false. The question was what the position would be in such a circumstance.

The Court examined whether the proceedings before the Committing Magistrate should be treated as entirely separate from the trial proceedings. If they were separate, the view of the Allahabad High Court that section 479‑A(1) would not apply would be appropriate. The Court considered, however, that section 479‑A(1) refers to false evidence given “in any stage of the judicial proceeding.” The committal proceedings constitute a stage of the judicial process that precedes the Sessions trial. Consequently, when false evidence is given before the Committing Magistrate by a person later examined at trial, that evidence cannot be described as having been given in an independent proceeding. The Code provides that before a person is tried for a grave offence by a Court of Sessions, a magistrate must conduct an enquiry to determine whether a prima facie case exists. If such a case is found, the magistrate frames a charge and commits the accused to trial before the Sessions Court. Although evidence recorded before the Committing Magistrate is not technically classified as trial evidence, it may, in certain circumstances, be transferred to the trial record and considered in the same manner as evidence presented at trial. In view of these considerations, the Court proceeded to address the implication of treating the committal stage as part of the same judicial proceeding.

In examining the characteristics of the commitment proceedings, the Court expressed the view that such proceedings form an integral part of the same judicial process that ultimately resulted in the decision rendered by the Sessions Court. Accordingly, the Court held that even if the Sessions Judge could not determine which of two conflicting statements was untrue, or even if the Judge was of the opinion that the statement recorded before the Committing Magistrate was false, the authority to act under section 479‑A(1) of the Code of Criminal Procedure rested solely with the Sessions Judge. This exclusive jurisdiction arises because the commitment stage is not a separate independent proceeding but a continuation of the same case, and the Sessions Judge retains the responsibility for evaluating the credibility of evidence presented at both stages. The Court therefore rejected both of the arguments advanced by counsel identified as Mr. Prem. The submissions of Mr. Prem sought to separate the commitment stage from the trial stage and to limit the Sessions Judge’s discretion, but the Court found no support for such a separation in the statutory scheme. On the basis of this reasoning, the Court concluded that the learned Chief Presidency Magistrate had acted correctly in granting discharge to the appellant. The Court further held that the High Court had erred in overturning that discharge order and in directing the Chief Presidency Magistrate to continue the proceedings on the premise that the complaint had been filed after complying with the procedure prescribed in sections 476 to 479 of the Code of Criminal Procedure. Consequently, the appeal was allowed.