1980 P Cr (PLP)

MALIK MUHAMMAD ASLAM KHAN, J.‑This is an appeal by leave directed against order dated 26‑3‑1978 of the learned Chief Justice High Court by which an application, moved by the appellant under section 476, Cr. P. C for initiating proceedings under sections 193 and 199 of the Penal Code against respondent, was dismissed.

2. In a Habeas Corpus Petition No. 10 of 1976 Sardar Sikander Hayat Khan v. Government or Azad Jammu & Kashmir filed against the dentention of Sardar Mohammad Abdul Qayyum Khan, a former President of Azad Kashmir, respondent Major Aurangzeb Khan, the then D. I.‑G. Police (Crimes Security and Intelligence) appeared as a witness before the High Court on, 22‑7‑1976 and made the following statement :‑ "I am the D. I G of Police (Crimes Security and Intelligence) and I also hold the additional charge of Home Secretary." In his cross‑examination on 25‑7‑1976, he reiterated that he was Secretary‑Home by stating `I do not know what was the practice before I came here, but since I am also Home Secretary to the Government, in that capacity I have been dealing with all cases of preventive detentions ' Again on 22‑8‑1976, he re‑affirmed his claim of being Secretary Home by stating `I took over as Home Secretary after retirement of Mr. Suleria.' Basides these statements the respondent also filed two affidavits on 23‑6‑1976 and 20‑5‑1976 before the High Court to the effect that he was holding additional charge of Secretary Home. This claim of the respondent of being Secretary, Home or holding charge as such .was pointedly chal lenged by the appellant who appeared as a counsel for the detenu in the habeas corpus petition and the respondent was asked to produce the re cord in support of his assertion. But in spite of promising to do so, the respondent did not produce any record. The writ petition was dismissed by the High Court without deciding about the challenged claim of the respondent of being Secretary Home. The detenu, however, succeeded in his appeal before the Supreme Court which, while holding that the detention was unlawful ab initio passed the following remarks in para. 16 of the judgment reported in P L D 1978 5 C (A J & K) i2 :‑ "Apart from the inherent illegality in the detention order as discussed above the question of m4a fide may be examined here The period, according to the grounds supplied to the detenu, during which the detenu delivered objectionable speeches spread over a period of about 51 months i.e. from middle of April to September 1875. He was removed from the office of the Presidentship of Azad Jammu & Kashmir on 16th of April, 1975, at a meeting of Azad Jammu & Kashmir Legislative Assembly convened in violation of the injunction issued by the High Court against its Speaker and the Secretary. This fact is not denied in the state ment of facts filed by the respondent, but it is alleged that the Assembly was competent, under law, to pass no ‑confidence mo tion. It is also to be noted that only about a month remained for holding of new elections. It is not understandable as to why a meeting of the Assembly was convened only a short time prior to the election of the President and that too in defiance of an injunction of the Court. It is also an admitted fact that the detenu boycotted the election. These facts alongwith the way the President was removed from his office, the subsequent cir cumstances which forced him to boycott the elections and the arrest of his political workers have to be looked into for determin ing the mala fide or otherwise. Besides, the dramatic appearance of Major Aurang Zaib in Azad Kashmir on the eve of the removal of the detenu from the office of the Presidentship, his appointment as D. I.‑G. against a post newly created for the purpose ; his as suming the role of Secretary Home and claiming in the Court as such without any appointment. order (apart from legal consequen ces that are to ensue for perjury) renders the whole atmosphere suspicious and intriguing. Adjudged in this context it cannot be suspicious allegation of mala fide is wholly unfounded." Appellant herein, who is an Advocate of High Court and the Supreme Court, and had conducted the case of the detenu in both the Courts, moved the above‑r6ferred application before the High Court under section 476, Cr. P. C., which, was dismissed mainly on the ground that even though the Supreme Court had held that the respondent was not Secretary, Home, Azad Government, this finding being given without affording respondent an opportunity of being heard, was bad in law It was also remarked by the learned Chief justice that the appellant herein was actuated by his personal vendetta and could not be allowed to move such application as pro bono publico. We allowed the petition for leave to appeal to consider the following points :‑ (i) Whether it was 1ggally essential for the Supreme Court to afford an, opportunity of being heard, to the non‑petitioner before passing the above remarks and if no such opportunity was afforded, what effect it could have on the application moved by the petitioner in the High Court ? (ii) Whether the petitioner had the locus standi to move the High Court for taking action against the non‑petitioner under section 1931199, A P. C. ? (iii) Whether for taking action under section 1931199, A. P. C. it was Court or for the High Court to start proceedings under section 476, Cr. P. C. The respondent was served through substituted service but did not appear in this Court.

3. It is contended by the appellant that the learned Chief Justice had misconceived and misapplied the maxim of audi alteram partem vis‑a‑vis the remarks of the Supreme Court contained in para. 16 of its judgment concerning Major Aurangzeb Khan. His case is, that Major Aurangzeb Khan was not an accused person but a prosecution witness in the habeas writ petition needing no show‑cause notice or an opportunity of being heard for passing the abovestated remarks which are innocuous and the mildest in form. It is further contended that even though under law or principles of natural justice, a witness who brazen facedly sticks to a patently false statement, requires no further opportunity for passing of the remarks, the respondent was afforded ample opportunity even in the High Court to produce any order to support his claim that he was or holding the charge of, Secretary Home. But the respondent failed to do so and he stood .exposed as a palpably perjured witness justifying the remarks passed by the Supreme Court. The learned Advocate‑General concedes this stand of the appellant, as according to him, in the abovestated circumstances, the question of being condemned unheard by the respondent has no relevance.

4. We have given anxious consideration to the views of the learned Chief Justice as well as that of the appellant and the learned Advocate- General. We are in full agreement with the contention of the appellant and 'the views of the learned Advocate‑General that respondent, in the capacity of being a witness needed neither an opportunity of being heard again nor of being served with a show‑cause notice for passing of the remarks by the Supreme Court contained in para. 16 of its judgment. It is elementary that while appraising the evidence of a witness, the trial as well as the appellate Court can pass remarks about the witness being truthful or otherwise and indicate the consequences that may ensue for B giving false evidence before a Court of law. The learned Chief Justice seems to have fallen in error by equating the witness (which the' respondent was before him and us) with an accused person so as to attract the maxim of audi alteram partem. It is beyond our comprehension as to how Major Aurangzeb Khan could be said as condemned unheard when his claim of being or holding the charge of Secretary, Home was not only challenged in cross‑examination in the High Court in his very presence but he was also asked, and given ample opportunity to, produce any record in support of his assertion in the High Court. The respondent, although persisting in this claim of his, failed to produce any oral or documentary evidence to support his claim. It was against this back ground that the Supreme Court, while determining the bona fides or otherwise of the detention order observed in the parenthesis as 'apart from the legal consequences that are to ensue for perjury. It is common sense that for a witness who stands already confronted and. challenged in the trial Court about the stated false statement and even provided opportunity, to explain or rebut the challenge, there is neither any propriety nor legal requirement for the trial or appellate Court to provide such a witness further opportunity of being heard while appraising his evidence in the main case or appeal. Of course when the Court is of the opinion that proceedings under section 476, Cr. P. C. may be launched in the interest of justice against such a witness it may afford him such an opportunity of being heard while holding a preliminary inquiry. It may be stated that even under section 476, Cr. P. C., prelimi nary inquiry is not obligatory and in appropriate cases the Court may dispense with such a preliminary inquiry and file complaint without hearing the person to be proceeded against. In support of this view we may refer to Purna Chandra Dutta ' and others v. Sheikh Dhalu (A I R 1923 Nag. 258), H. C. Ganti v. F. L. Harcourt (1969 P.Cr. L J 891), Nand Kumar Sinha v. Emperor (P L D 1967 Dacca 717), Mokbul Hossain Siddiqui v. The State and another (A I R 1937 Pat. 534) and The State v. Qazi Abdul Hafeez Khan (A I R 1931 Cal. 436). For elucidating this point we are reproducing the observations made by Mr. Justice Suhrawardy in Purna Chandra Dutta and others v. .Sheikh Dhalu :‑ In each individual case the Court has to decide whether in the interests of justice a preliminary investigation is necessary. In a case where an offence has been committed outside the Court and not in the presence of the Judge it would certainly be judicious if not incumbent upon the Court to hold a preliminary enquiry in order to find out‑ for itself whether such an offence was really committed. But where an offence is committed in the presence of the Court or from a perusal of the record, it is of opinion that it is necessary in the interests of justice that a further enquiry into the matter should be made in the criminal Court, it may make a complaint to that effect to the nearest Magistrate without making any preliminary enquiry. But it cannot be laid down as a proposition of law that in every case it is prudent to hold a preliminary enquiry before making a complaint under S. 476."

5. The pith and substance of section 476, Cr. P. C.. is that whenever it appears to a Court, whether through an application or otherwise, that the stated offence mentioned in section 195, appears to have been com mitted in or in relation to any proceedings in that Court and the Court is of the opinion that it is expedient in the interest of justice that a complaint should be lodged against the offending person, then it is duty‑bound to lodge such a complaint. As to what should be‑ the guiding principle for launching such proceedings, we may refer to Tulsiram v. Tilokchand (A I .R 1930 Cal. 721 (2)) wherein it has been held :‑ The proper attitude of the Court and the principles that should guide it are exactly the same as those of a Police Officer who actually sees the commission of what appears to be a cognizable offence. He must make full enquiry, and can then refrain from arresting the person suspected only if he is satisfied that he is innocent or only technically guilty, or that the available evidence would not lead to his conviction though he is convinced himself of his guilt, or that the offence is so trivial that no more than a nominal sentence would' no passed on his conviction ; he fails in his duty if he takes nib action at all but merely waits for some aggrieved party to complain, and also if, when such a complaint has been made, he does no more than scrutinise the evidence put before him by that party or that of the facts he happens to have seen himself." Mr. Justice Maniur Qadir, C. J. (as he then was) lucidly elaborated this principle in Manzoor Hussain v. The State (P L D 1963 Lah.20), where a witness had fabricated false evidence, by observing :‑‑ "In spite of this finding so clearly expressed, he (the Magistrate) does not appear to have initiated any proceedings in respect of the offences of forgery and perjury he believed this witness to have committed. This is anamolous. Administration of justice is a solemn and sacred duty. The Courts are not there to be trifled with. If it appears to a Court that forgery or perjury has been committed in relation to any proceedings before it, it is its duty to consider why the person concerned should not be prosecuted, and if there is no good reason why he should not be prosecuted, to‑ take prompt and adequate action, so that an impression is not created that anyone can divert or abuse the process of law by falsehood or fabrication and still run no risk of coming to harm." In view of this state of law and the circumstances of this case, we are of the view that the High Court was duty‑bound to consider objectively the expediency and the interest of justice for taking action under section 476, Cr. P. C. especially when an Advocate on the rolls of he High Court had placed on record attested copies of the statement of the respondent as well as that of his affidavits given in the .High Court exposing the statement and the affidavits as false. :n fact as these statements and the affidavits had been challenged as false in the very High Court, and the respondent could not produce any evidence in spite of being asked to ‑do so to support his assertion that he was or holding the post of Secretary:. Home, the High Court should have moved itself without waiting any application from any person for considering the ,expediency of initiating proceedings under section 476, Cr. P. C. In view of this legal position and the aforementioned circumstances, we are of the view that the application should not have been dismissed in such a perfunctory manner.

6. It is also contended by the appellant and conceded by the learned Advocate‑General . that there is no legal bar against a private person, much less an Advocate of the High Court and Supreme Court, to move the Court for taking action under section 476, Cr. P. C. The appellant. has rightly pointed out that he being on the rolls of the High Court as well as of the Supreme Court, . and in his capacity as an officer of the Court, was entitled to move the High Court for making inquiry under section 476, Cr. P. C. as the interest of justice required that a person who perjures in superior Courts, should not create the impression that being a man of some importance, he can divert or defeat the process of law. Plain reading of section 476, Cr. P. C. leaves no doubt that there is' nothing wrong for a private person to 'move the Court for initiating' inquiry under section 476, Cr. P. C. The Court can even move suo motu and rather it is Court's duty when such a fact comes to its notice to con sider action under section 476, Cr. P. C. when there is no good reason for not prosecuting the perjurer. It is immaterial as to who moves the Court provided the Court comes to the. conclusion that it is expedient in the interest of .justice that an inquiry should be . made concerning offence referred to in section 195 subsection (1) clauses (b) or (c) which appears to have been committed in or in relation to the proceedings of that Court, The opinion to launch such an inquiry is to be formed by the concerned Court on the main ground of expediency and the interest of justice. But such an opinion must be judicious one and not fanciful or capricious. In deciding for such an action, of course, the Court has to guard against being a tool in the hands of parties but it should not refuse to launch such proceedings merely on the ground that an interested party, much less as Advocate, has moved the Court for such an action. The whole matter is to be seen objectively and not subjectively as held in Harekrishna Parida and others v. Emperor (A I R 1929 Pat.242) :‑ "Section 476, C. P. C. Provides that the complaint may be made by a Court either on an application or otherwise. Therefore it is immaterial whether the present application is made by a person who was not a party to the suit. There is no reason to refuse to take action because he brings the fact to the notice of the Court if it is expedient in the interest of justice that any enquiry should be made into the offence referred to." In this case the applicant was not even a party to the original proceedings, who moved the Munsif under section 476, Cr. P. C. for launching proceedings against Harekishna Parida and others for alleged forgeries. The contention that a person not a party to the original proceedings had no locus standi to move the Court, was repelled. Another authority in the same line is Bhagwandas Narandas v. D. D. Patel & Co. (A I R 1940 Bom.131). Even a direction by an appellate Court to the lower Court where' an offence under section 195, subsection (1), clause (b) or (c) appears to have been committed, does not vitiate the proceedings provided the lower Court itself comes to the conclusion that it is in the interest of justice to launch such proceedings. Reference may be had to Awadh Behari Lal , v. Emperor (A I R 1919 Pat.78).

7. Coming to the appeal before us we find that the learned Chief Justice has rejected the appellant's application on a mistaken notion of law and as such the impugned order is not sustainable. We have also considered as to whether in the above‑stated circumstances, it is expedient and in the interest of justice or not to launch a preliminary inquiry under section 476, Cr. P. C. against the respondent. Our considered view is that for the following reasons this is a fit case where such an inquiry should be initiated :‑‑ (a) The respondent was a star witness in the habeas corpus petition, as according to him, it was he who had launched the proceedings for detention of the detenu in his capacity of being or holding the charge of Secretary Home ; (b) The question of respondent's being or not being the Secretary House, was a vital question, among others, for determining the legality and justification for the detention of the detenu. (c) The claim of the respondent that he was or held the charge of, Secretary Home, was challenged in the High Court but he could not produce any order in support of this claim although he promised and, had an opportunity to do so ; (d) It was not a solitary casual statement but as already stated, a statement given on 22‑7‑1976 and repeated on 25‑7‑1976 and 22‑8‑1976 backed by two affidavits. In view of these factors we are of the opinion that it is expedient in the interest of justice that an inquiry should be launched under sec tion 476, Cr. P. C. against the respondent so that even if at this stage he has got any proof to support his claim of being or holding the post of Secretary Home at the relevant time, he may do so before us. As a result of this discussion we accept the appeal upsetting the order of the learned Chief Justice dated 26‑5‑1978 and proceed to hold ourselves inquiry under section 476, Cr. P. C. against the respondent. Notice under section 476, Cr. P. C. shall be issued against the respondent for appearance before this Court and showing cause as to why a complaint under sec tions 193/199, A. P. C. be not filed against him before a competent Magis trate. As we are proceeding on a circuit sitting the judgment shall be announced by the Registrar after due notices. Appeal accepted.