Section 479-A
Section 479-A was incorporated into the Code of Criminal Procedure by Act 26 of 1955. That section reads:
“479-A. Procedure in certain cases of false evidence.
(1) Notwithstanding anything contained in sections 476 to 479 inclusive when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefore and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the, Court setting forth the evidence which in the opinion of the Court is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction and may if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate:
Provided that where the Court making the complaint is a High Court the complaint may be signed by such officer of the Court as the Court may appoint.
(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200.
(3) No appeal shall lie from any finding recorded and complaint made under sub section (1).
(4) Where, in any case, a complaint has been made under sub-section (1) and an appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen the hearing of the case before the Magistrate to whom the complaint was forwarded or to whom the case may have been transferred shall be adjourned until such appeal is decided;
and the Appellate Court, after giving the person against whom the com- plaint has been made an opportunity of being heard, may, if it so thinks fit, make an order directing the withdrawal of the complaint; and a copy of such order shall be sent to the Magistrate before whom the hearing of the case is pending.
(5) In any case, where an appeal has been preferred from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said sub-section may be exercised by the Appellate Court; and where the Appellate Court makes such complaint, the provisions of sub-section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard.
(6) No proceedings shall be taken under Section 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 Object of the Provision
This section was introduced into the Code with the idea of eradicating to the extent possible the evils of perjury and fabrication of false evidence a widespread evil that is corroding our judicial system. The then existing procedure in the matter of prosecuting those who give false evidence or use fabricated evidence in judicial proceedings was found to be tardy and ineffective.
Therefore power was given both to the trial court as well as to the appellate court to forthwith complain against witnesses guilty of perjury or fabricating false evidence without having recourse to the procedure laid down in Sections 476 to 479 of the Code of Criminal Procedure. But at the same time the legislature felt that before proceeding against those persons the court must form an opinion that the witness has either given intentionally false evidence or has intentionally fabricated false evidence and further must form an opinion that it is expedient in the interests of justice that the witness should be prosecuted for the offence committed by him.
Mandatory Requirements under the Provision
The material portion of Clause (1) of Section 479-A is:
“……………….. when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the court shall at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefore and may if it so thinks fit, after giving the witness an opportunity of being heard make a complaint thereof in writing…………… .”
This provision clearly shows that what is mandatory is that the judge must give a finding that the witness has intentionally given false evidence in the proceeding before him or has intentionally fabricated false evidence for purposes of being used in that proceeding and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that the witness should be prosecuted for the offence in question. Giving of an opportunity to the witness to show cause against the contemplated complaint is not mandatory.
That step is required to be taken only if the court thinks fit-a matter left to the discretion of the trial court. This position is made further clear when we go to sub- section (5) of Section 479-A. This sub-section empowers the appellate court to make a complaint against a witness whom it thinks is guilty of perjury or guilty of fabricating false evidence to be used in the proceedings before it. It provides that where the appellate court proposes to make a complaint “the provisions of sub-section (1) shall apply accordingly but no such order shall be made without giving the person affected thereby an opportunity of being heard”.
In other words in the case of the trial court a discretion is given as to whether an opportunity should be given or not before filing a complaint to show cause against the proposed complaint but so far as the appellate court is concerned the giving of an opportunity to the witness to show cause against the contemplated complaint is made mandatory. The reason for this distinction is understandable. So far as the trial court is concerned, it is the court that has seen the witness and observed his demeanour.
Therefore the legislature evidently thought that the question whether a witness should be given a further opportunity to show cause why complaint should not be filed against him may be left to the discretion of that court but the appellate court having no such opportunity, the legislature evidently thought that an opportunity should be given to the witness to show cause against the contemplated complaint.
Reference
Narayanswami vs State Of Maharashtras (1971)