High Court · 2025

Legal Reasoning

{1} 233-06-CRIAPEALIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 233 OF 20061. Damodar S/o Tukaram Tandale Age: 44 years, Occu.: Service, R/o. Gramsevak Colony, Beed, Tq. & Dist. Beed.2. Dinkar S/o Tukaram Tandale, Age: 35 years, Occu.: Agri., R/o. Wanjarwadi, Tq. & Dist. Beed. … Appellants VersusThe State of Maharashtra … Respondent ...…Mr. R.N. Dhorde, Senior Advocate a/w Mr. S.S. Dudhane, Advocatei/b V.R. Dhorde, Advocate for AppellantsMr. C.V. Bhadane, APP for Respondent – State...... CORAM : ABHAY S. WAGHWASE, J. RESERVED ON: 12 FEBRUARY 2025PRONOUNCED ON: 20 FEBRUARY 2025 JUDGMENT :- 1.Both appellants assail judgment and order passed by thelearned Vth Adhoc Additional Sessions Judge, Beed in Misc. CriminalApplication No.18 of 2005, holding them guilty for offence underSection 344 of the Criminal Procedure Code. {2} 233-06-CRIAPEAL2.Learned senior counsel took this Court through the papers andsubmitted that, present appellant no.1 had instituted report resultingin the registration of crime, and further resulting into Sessions CaseNo.72 of 2004. That, present appellants were witnesses in the saidSessions Case. That, appellant No.1 was the government employeeand appellant No.2 was his brother. That, on the date of evidence,appellant No.1 was constraint to attend administrative training, andas such, he did not get notice or information about any evidence inthe trial Court dated 09.09.2004, and hence, he could not attend theCourt. That, there was no deliberate avoidance. That, moreover,accused Amol Khade, against whom present appellant no.1 hadlodged report, had also filed complaint against the present appellantno.1 which resulted into institution of RCC No. 223 of 2003.However, in both cases, there was settlement between the parties.That, further appellants testified in the Court. That, they had nointention to give false evidence. Further, learned trial Court issuednotice under Section 344 of the Code of Criminal Procedure andwithout considering the reply therein, it has been concluded thatthere is willful and knowingly giving false evidence, and they areheld guilty and also sentenced. {3} 233-06-CRIAPEAL3.Learned senior counsel further pointed out that, there is noindependent assessment of material, no consideration of say/answergiven by appellants to the show cause notice in proper perspective,and directly provisions under Section 344 of the Code of CriminalProcedure are invoked, which are to be exercised rarely and inexceptional case and only when it is expedient. Therefore, learnedsenior counsel seeks indulgence for setting aside the impugnedjudgment by allowing the appeal. 4.In answer to the above, learned APP supported the impugnedjudgment and order by pointing out that appellant No.1 himself hadset law into motion. He and his brother were expected to cooperatewith the prosecution, however they retracted and rather favoured theaccused which amounts to giving false evidence. That, requiredingredients were available and after following due procedure likeissuance of show cause notice, seeking explanation, and not finding itsatisfactory, learned trial Court has passed the order. That, there is noinfirmity, and therefore, learned APP prays to dismiss the appeal. 5.Heard. Perused the papers. Apparently, conviction is forcommission of offence under Section 344 of the Code of CriminalProcedure. Before adverting to the facts of the case and to the {4} 233-06-CRIAPEALimpugned order, it would be appropriate to re-produce the provisionsof Section 344 of the Code of Criminal Procedure, which are asunder: “344. Summary procedure for trial for giving false evidence.-(1) If, at the time of delivery of any judgment or final orderdisposing of any judicial proceeding, a Court of Session orMagistrate of the first class expresses an opinion to the effectthat any witness appearing in such proceeding had knowinglyor wilfully given false evidence or had fabricated falseevidence with the intention that such evidence should beused in such proceeding, it or he may, if satisfied that it isnecessary and expedient in the interest of justice that thewitness should be tried summarily for giving or fabricating, asthe case may be, false evidence, take cognizance of theoffence and may, after giving the offender a reasonableopportunity of showing cause why he should not be punishedfor such offence, try such offender summarily and sentencehim to imprisonment for a term which may extend to threemonths, or to fine which may extend to five hundred rupees,or with both.(2) In every such case the Court shall follow, as nearly as may bepracticable, the procedure prescribed for summary trials.(3) Nothing in this section shall affect the power of the Court tomake a complaint under section 340 for the offence, where itdoes not choose to proceed under this section.(4) Where, after any action is initiated under sub-section (1), it ismade to appear to the Court of Session or Magistrate of thefirst class that an appeal or an application for revision hasbeen preferred or filed against the judgment or order inwhich the opinion referred to in that sub-section has been {5} 233-06-CRIAPEALexpressed, it or he shall stay further proceedings of the trialuntil the disposal of the appeal or the application for revision,as the case may be, and thereupon the further proceedings ofthe trial shall abide by the results of the appeal or applicationfor revision.”6.On going through the papers, it is emerging that, Sessions CaseNo.72 of 2004 was conducted for commission of offence underSession 395 r/w 397 of the Indian Penal Code on report by thepresent appellant. After framing charge, trial was conducted, whereinprosecution witnesses were examined and documentary evidence likecomplaint, medical certificate, C.A. report, Panhanama, etc. were alsotaken into consideration, and after hearing both the sides, learnedtrial Court acquitted all four accused therein by its judgment andorder dated 18.12.2004. 7.It seems that after the said judgment, learned trial Court hasput appellants to notice and sought their say as to why action shouldnot be taken against them for commission of offence under Section344 of Criminal Procedure Code. In response to the same, witnesses i.e. present appellantsDamodar and Dinkar, tendered their say, which is at Exhibit-7/C. Thetranslated version of the say is re-produce as under: {6} 233-06-CRIAPEAL“1)That is, respondent No. 1 is a resident of Beed and isemployed in the Education Department as the Head of the center, andrespondent No. 2 is a resident of Vanjarwadi, Taluka Beed, and is afarmer by profession and a police inspector. Respondents 1 and 2 arepeace-loving and law-abiding citizens.2) That is, on the date 26.05.2003 in the night Baburao Khadeand others assaulted Respondent No.1, so he had filed a complaintagainst them in the Beed City Police Station. Respondent No.1 wasadmitted to the district hospital for 7 or 8 days due to a serious headinjury.3) That is, Respondent No.1 had to go to Ambejogai during theperiod of 9th and 10th September 2004 due to his per-scheduledadministrative training. And due to this, Respondent No.1 could notget the notice/information regarding giving evidence in the Hon'bleCourt on 09.09.2004 and hence could not be present in the Hon'bleCourt on the above date. Respondent No.1's non-appearance beforethe Hon'ble Court on the above date was due to necessity and lack ofnotice and the said act was not done deliberately and this applicanthad no intention of being absent from the Hon'ble Court or taking upthe time of the Hon'ble Court.4) It is said that after Respondent No.1 registered a complaint againstthe above accused at Police Station Beed, the accused Amol BaburaoKhade filed a complaint against Respondent No1 and SudhakarTambe, Prashant Tandale, Tukaram Sanap in relation to Crime Reg.No. 150/03 and based on that, a case was filed against RespondentNo.1 and others in the court of Chief Judicial Magistrate Beed as RCC223/03. In the present case, there was a compromise between thecomplainant Amol Khade and Respondent No.1 and others, and sincethere was no evidence against the Respondent No.1 in a crime thatwas not eligible for compromise, respondent No.1 was acquitted bythe Chief Judicial Magistrate. {7} 233-06-CRIAPEAL5) That, the testimony of the present respondents No. 1 and 2 hasbeen given orally in the Hon'ble Court. At the time of the presenttestimony/oral testimony, the respondent had no intention to givefalse testimony in the Hon'ble Court and to prepare any false andfabricated evidence before the Hon'ble Court. Respondent No.1 hadsuffered serious head injuries due to the assault. Due to which he wasadmitted to the District Hospital for medical treatment for 7-8 daysand due to which his mental and physical condition was not good andhe was mentally disturbed. The respondent had no intention andintention to register a false case against the accused. Also, there wasno intention and mentality to give false testimony in the Hon'ble Courtto save the accused.6) That is, in the present case the respondent had no intention toremain absent and to give false testimony in the Hon'ble Court to savethe accused. The respondent No. 2 is always co-operative and lawabiding person and he has respect and respectful towards the Hon’bleCourt.7) That is t was never the intention of the respondent to be incontempt of the Hon'ble Court by not appearing in the court in thepresent case. And the respondents have always taken care that theHon'ble Court is not in contempt. Without prejudice to the abovestatement, the respondent states that if it is found that this Hon'bleCourt has been in contempt due to the conduct of the respondents,then the respondent humbly apologizes to the Hon'ble Court.8)That the respondent No.2, has answered all the questionsasked to him during the cross-examination and in the said cross-examination he did not give any answer inconsistent with thecomplaint/respondent nor was any indicative question asked beforedeclaring him a hostile. From that it was not found that therespondent was giving inconsistent answers to his complaint anddespite this, the government party has conducted a cross-examination {8} 233-06-CRIAPEALwithout declaring him as hostile. Respondents No.1 and 2 are lawabiding persons and they have respect and respectful towards theHon’ble Court. He made no attempt to give false testimony in court. Itwould be in the interest of justice to dismiss the present applicationagainst the respondent.Hence prayed for, The Misc. Criminal Application No. 18/2005 against theRespondent Nos. 1 & 2 is to be rejected.”8.On appreciating the above say, learned trial Judge seems to havepassed judgment in Misc. Criminal Application No.18 of 2005 recordingguilt of present appellants under Section 344 of the Code of CriminalProcedure, holding that there is deliberate false deposition. That, knowinglyand intentionally false evidence has been tendered, and therefore, they areliable for the action, and hence, they are held guilty by the judgment andorder dated 07.03.2006.9.On re-appreciating the papers and on going through the judgmentand order passed by the learned trial Judge in Sessions Case No.72 of 2004as well as on going through the impugned order passed in Misc. CriminalApplication No.18 of 2005, it is clearly emerging that there is noindependent appreciation of the aspect, as to whether the deposition wasintentional and given willingly. Learned trial Court was expected toconsider the say to the show cause notice and explanation for initial nonavailability and about matter to be amicably settled between the parties. {9} 233-06-CRIAPEALEven otherwise, on going through the judgment passed in Sessions CaseNo.72 of 2004, learned trial Judge has appreciated the evidence of in alltwelve witnesses, but only appellants are singled out and made to faceproceedings.10.In paragraph 33, learned trial Court has held that except policeofficials and medical expert, none of the witnesses have supported theprosecution. In paragraph 34, learned trial Court has held that after takinginto account the evidence of police officer, who has reduced the FIR inwriting, as well as PW-2 and PW-3, these witnesses are deposing falsely tosave accused persons, and finally, in paragraph 35, learned trial Court, hasobserved that, taking into consideration the cumulative effect of the entireevidence, the prosecution has miserable failed to prove the charges andthereby acquitted the accused. However, again in paragraph 37, learned trialCourt has observed that, there is growing tendency amongst witnesses tofalsely depose in the Court, and in the same paragraph, it has been furtherobserved that, it is necessary to issue notice under Section 344 of the Codeof Criminal Procedure for taking action. These observations clearly indicatethat in the judgment of the Sessions Case itself, learned trial Court hasbecome judgmental and already formed an opinion that accused has givenfalse evidence. Thereafter, learned trial Court seems to have issued notice,sought say, but further failed to appreciate the say given by the appellants, {10} 233-06-CRIAPEALand further failed in recording specifically that it is expedient in the interestof justice as there is deliberate, willingly and knowingly adducing falseevidence. Independent finding to this extent is not recorded in theimpugned judgment, as stated above, in Sessions Case No. 72 of 2004itself. Learned trial Court seems to have formed an opinion that offenceunder Section 344 gets attracted. Other witnesses are apparently spared ofany action. 11.In Santokh Singh V. Izhar Hussain, (1973) 2 SCC 406, the ratio onthis aspect is settled. The relevant portion of the said judgment is borrowedand quoted as under :"Every incorrect or false statement does not make it incumbent on thecourt to order prosecution. The court has to exercise judicial discretion inthe light of all the relevant circumstances when it determines the questionof expediency. The court orders prosecution in the larger interest of theadministration of justice and not to gratify the feelings of personal revengeor vindictiveness or to serve the ends of a private party. Two frequentprosecutions for such offences tend to defeat its very object. It is only inglaring cases of deliberate falsehood where conviction is highly likely, thatthe court should direct prosecution."12.Relying on the same, and in view of discussion in the foregoingparagraphs, here, as learned trial court has, before conducting summaryproceedings, itself seems to be predetermined to hold witnesses guilty,interference is required by allowing the appeal. Accordingly, I proceed topass following order : {11} 233-06-CRIAPEALORDER(i)Criminal Appeal stands allowed. (ii)The conviction awarded to appellants DamodarTukaram Tandale and Dinkar Tukaram Tandale inMisc. Criminal Application No.18 of 2005 by theVth Adhoc Additional Sessions Judge, Beed on07.03.2006 for offence punishable under Section 344of the Code of Criminal Procedure, stands quashedand set aside.(iii)The appellants stands acquitted of the offencepunishable under Section 344 of the Code of CriminalProcedure.(iv)Bail bonds of the appellants, if any, stand cancelled.(v)The fine amount deposited, if any, be refunded to theappellants after the statutory period. ( ABHAY S. WAGHWASE ) JUDGES P Rane