Case Analysis: Shabir Hussein Bholu vs State of Maharashtra

Case Details

Case name: Shabir Hussein Bholu vs State of Maharashtra
Court: Supreme Court of India
Judges: J.R. Mudholkar, Syed Jaffer Imam, N. Rajagopala Ayyangar
Date of decision: 28 September 1962
Citation / citations: 1963 AIR 816; 1963 SCR Supl. (1) 501
Case number / petition number: Criminal Appeal No. 92 of 1961; Cr. Revision Application No. 91 of 1961 (by State) converted from Cr. A. No. 1131 of 1960
Proceeding type: Criminal Appeal (by special leave)
Source court or forum: Bombay High Court

Source Judgment: Read judgment

Factual and Procedural Background

The appellant, Shabir Hussein Bholu, had been called as a prosecution witness in the murder trial of Rafique Ahmed before the Additional Sessions Judge, Greater Bombay. He gave a first sworn statement before the committing magistrate, alleging that he had seen the accused stab the deceased while he himself was running away. Three months later, at the trial before the Sessions Court, he gave a markedly different account, stating that he had only seen the accused and two associates approach his house, that one of them carried a dagger, and that he had not witnessed any stabbing because he had shut the door when his children became frightened. The Additional Sessions Judge noted the inconsistency of the two statements and, after the jury returned a verdict of not guilty on the murder charge, ordered that a complaint be filed against the appellant under section 193 of the Indian Penal Code for perjury. A notice requiring the appellant to show cause why he should not be prosecuted was issued, and the appellant’s counsel argued that the contradictions arose from his illiteracy and a confused state of mind. The judge rejected this argument, made the notice absolute, and the complaint was presented before the Chief Presidency Magistrate, Bombay.

The magistrate, relying on the appellant’s objection that the procedure prescribed in section 479‑A of the Code of Criminal Procedure had not been complied with, refused to take cognizance of the complaint and discharged the appellant. The State of Maharashtra filed a revision application before the Bombay High Court. The High Court set aside the discharge, held that the magistrate could act under sections 476 to 479 of the Code, and remanded the matter for trial before the Chief Presidency Magistrate.

The appellant then appealed to the Supreme Court of India by special leave (Criminal Appeal No. 92 of 1961), contending that the High Court had erred in disregarding the procedural requirements of section 479‑A and that the magistrate was correctly empowered to discharge him.

Issues, Contentions and Controversy

The Court was called upon to determine (i) whether the Chief Presidency Magistrate could take cognizance of a perjury complaint when the procedure of section 479‑A had not been complied with; (ii) whether the non‑observance of section 479‑A barred the use of the general provisions of sections 476 to 479; and (iii) whether the contradictory statements made before the committing magistrate and before the Sessions Court fell within the ambit of “false evidence in any stage of the judicial proceeding” contemplated by section 479‑A.

The appellant contended that the contradictions were the result of his illiteracy and mental confusion, that the Additional Sessions Judge had not recorded a finding under section 479‑A(1) at the time of his judgment, and that, because the trial was conducted by a jury, the judge could not form the requisite opinion. He further argued that the complaint should have been based only on section 476, not on section 479‑A, and that the exclusive nature of section 479‑A precluded reliance on sections 476 to 479.

The State argued that section 479‑A provided an alternative, exclusive procedure for “flagrant” cases of perjury and that, where its requirements were not satisfied, the magistrate could proceed under the general provisions of sections 476 to 479. It submitted that the committing magistrate’s proceedings formed part of the same judicial proceeding as the trial, that the Additional Sessions Judge could not have recorded a finding under section 479‑A(1) because of the jury trial, and that the complaint therefore had to be made under section 476.

The controversy thus centred on the hierarchical relationship between section 479‑A and the earlier provisions, and on the interpretation of “any stage of the judicial proceeding.”

Statutory Framework and Legal Principles

Section 193 of the Indian Penal Code penalised perjury. The procedural regime for prosecuting a witness who gave false evidence was contained in Chapter XXXV of the Code of Criminal Procedure. Sections 476, 477, 478 and 479 empowered a court, after forming an opinion that a witness had intentionally given false evidence, to make a complaint against the witness. Section 479‑A, inserted by section 89 of Act 26 of 1955, prescribed a distinct procedure for “certain cases of false evidence.” The provision began with a non‑obstante clause and, in sub‑section (6), excluded the operation of sections 476 to 479 where the offence fell within the ambit of section 479‑A(1). Section 479‑A(1) required that, at the time of delivering its judgment or final order, a court form the opinion that the witness had intentionally given false evidence and record a finding to that effect.

The legal principle derived from the non‑obstante clause was that, once a case qualified for the exclusive procedure of section 479‑A, the general provisions could not be invoked. The phrase “any stage of the judicial proceeding” was interpreted to include evidence given at the committal stage before a magistrate, provided that the committal proceedings were part of the same proceeding that culminated in the trial.

Court’s Reasoning and Application of Law

The Court first examined the effect of the non‑obstante clause in section 479‑A. It held that sub‑section (6) expressly barred the application of sections 476 to 479 where the offence fell within the exclusive jurisdiction of section 479‑A(1). Consequently, a complaint could be made only under section 479‑A if, at the time of its judgment, the court had formed the requisite opinion and recorded a finding.

Applying this test, the Court observed that the Additional Sessions Judge had issued a separate order directing prosecution for perjury but had not recorded a finding under section 479‑A(1) in his judgment. Because the procedural requirement of a contemporaneous finding was absent, the complaint could not be sustained under section 479‑A.

The Court then considered whether the older provisions could be invoked. Relying on the exclusive nature of section 479‑A, it concluded that once the matter fell within the scope of that provision, sections 476 to 479 were displaced, even if the specific procedural steps of section 479‑A had not been fulfilled. Therefore, the High Court’s reliance on sections 476 to 479 was erroneous.

Regarding the scope of “any stage of the judicial proceeding,” the Court held that the committal proceedings before the committing magistrate formed part of the same judicial proceeding that culminated in the Sessions trial. Hence, the contradictory statements given at the committal stage were covered by section 479‑A(1). However, because the Additional Sessions Judge could not form a definitive opinion as to which statement was false, the requirement of a finding under section 479‑A(1) remained unsatisfied.

In light of these conclusions, the Court affirmed that the Chief Presidency Magistrate was correct in discharging the appellant, and that the High Court had erred in setting aside that discharge.

Final Relief and Conclusion

The Supreme Court allowed the appeal, affirmed the discharge of the appellant by the Chief Presidency Magistrate, and set aside the Bombay High Court’s order directing a trial under sections 476 to 479. No further prosecution for perjury was ordered against the appellant.