High Court
Legal Reasoning
CriAppeal-283-2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 283 OF 2005Daud Khan s/o Habib Khan PathanAge : 36 years, Occ: Agril.R/o. Ovhar, Tq. Dist. Aurangabad.… AppellantVersusThe State of Maharashtra… Respondent…..Mr. S. G. Ladda, Advocate for the Appellant.Mr. K. K. Naik, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 19.09.2024Pronounced on: 07.10.2024JUDGMENT : 1.In this appeal, there is challenge to the judgment and order ofconviction dated 30.03.2005 recorded by learned 1st Adhoc AdditionalSessions Judge, Aurangabad, holding appellant guilty of offenceunder Section 344 of the Code of Criminal Procedure [Cr.P.C.].CASE IN BRIEF IS AS UNDER2.On charge of commission of offence under Section 302 r/w 34of the Indian Penal Code [IPC] and in the alternative, for offence
Legal Reasoning
CriAppeal-283-2005-2- under Sections 147, 302 r/w 149 of IPC, four accused namely,Mukhtar, Rafiqkhan, Shakirkhan, and Rahamatkhan were made toface trial before learned 1st Adhoc Additional Sessions Judge,Aurangabad vide Sessions Case No. 16 of 2005. At trial, prosecutionexamined as many as 10 witnesses and also sought reliance ondocumentary evidence. After analyzing the oral and documentaryevidence, learned trial Judge, by judgment and order dated30.03.2005, acquitted all four accused from above charges. However,by same order, informant-present appellant Daud Khan was heldguilty for commission of offence under Section 344 of Cr.P.C. andsentenced to suffer simple imprisonment for two months and to payfine of Rs.200/-, in default to suffer simple imprisonment of 10 days.Above judgment and order recording guilt for perjury is the subjectmatter of the instant appeal.SUBMISSIONSOn behalf of the appellant :3.Learned counsel for the appellant pointed out that four accusedwere chargesheeted by learned trial Judge for above sections, butthey were acquitted. He pointed out that prosecution could notestablish the case beyond reasonable doubt. That, complainant/ CriAppeal-283-2005-3- present appellant himself has not supported prosecution. He alsoemphasized that along with appellant/original complainant, otherwitnesses were also examined, but none of them had supportedprosecution. However, according to him, only present appellant issingled out by learned trial Judge and questioned for giving falseevidence.4.Criticizing the procedure adopted by learned trial Judge intrying original complainant for perjury, he submitted that distinctprocedure is provided in Cr.P.C. Such summary proceedings were notadopted by learned trial Judge. That, directly same court issued showcause notice and without considering the explanation, straightwayguilt has been recorded. That, even above procedure was carried outand concluded on the same day. There was no proper and fair trial.According to learned counsel, for holding a person guilty of givingfalse evidence, there has to be a full-fledged trial. Appellant has notbeen given opportunity to cross-examine the Investigating Officer.Therefore, according to learned counsel, there being completedeviation from the established procedure, impugned judgment doesnot stand in the eyes of law to be legal and valid. In the alternative,he submitted that even otherwise, almost two decades have passedsince rendering the judgment. At that time, complainant was of 36 CriAppeal-283-2005-4- years of age. As on today, he is almost 56 years of age. Therefore,considering such facts, he prays for either letting off the appellant byimposing fine, or extending benefit of probation. On behalf of the State :5.While opposing the above, learned APP submitted thatappellant is original complainant. He set law into motion, claiminghimself to the an eye witness. He retracted and only because of suchresilement, judgment of acquittal was required to be rendered. That,his version in substantive evidence is contrary to his own report, onthe basis of which crime was registered. He has admittedly given falseevidence on oath and therefore, after getting convinced to that extent,learned trial court had initially issued him show cause notice andthereafter, considering his reply and say, conviction has beenrendered. There is no deviation or infirmity in said procedure and so,learned APP prays to dismiss the appeal for want of merits.ANALYSIS6.Admittedly, present appellant was the original complainant onwhose report, crime was registered for offence punishable underSection 302 r/w 34 of IPC and four accused named therein were CriAppeal-283-2005-5- tried, but were acquitted by learned trial Judge vide judgment dated30.03.2005. It seems from the operative part of the judgment thatvide clause (4), order as under was also passed :“4. The complainant, Daud Khan Pathan r/o Ovher, isseparately proceeded u/s 344 of the Cr.P.Code.”7.The source of above order seems to be the observations oflearned trial Judge in para 19 and 20 of the judgment and learnedtrial Judge seems to have opined that complainant Daud Khan i.e.present appellant, in his zest to support the accused and damage theprosecution case, was bent upon to give false evidence. In para 21,learned trial Judge has discussed the object and scope of Section 344of Cr.P.C. and then observed that in the trial case, offence was underSection 302 of IPC, which was a serious offence. That, on complaintof present appellant, wheels of investigation were set into motion.That, in a serious offence, complainant had volte-faced his story.Therefore, no formal complaint of the court was required while tryingthe offender under Section 344 of the Code, as was the case with theprovisions of Section 340 of the Code, and considering all the factstogether, it was found that complainant had intentionally given falseevidence before the court and so, it was expedient and in the interest CriAppeal-283-2005-6- of justice to proceed against him under Section 344 of Cr.P.C., andconsequently show cause notice was issued. 8.It is also emerging that by virtue of Exhibit 55 in the sameSessions Case, show cause notice is issued calling upon appellant toshow reason as to why he should not be prosecuted under Section344 of Cr.P.C. for giving false evidence on oath before the court.Learned trial Judge has noted that above allegations were explainedto the offender in Marathi. The offender replied that he had not givenany false evidence and he begged to be excused if committed anywrong and therefore, on the same day, learned trial Judge hasobserved that appellant had given evidence before the courtintentionally and also with knowledge that whatever he stated in thecourt was false. Learned trial Judge further observed that consideringthe gravity of the offence, it was expedient to proceed against himunder Section 344 of Cr.P.C. and thereby passed following order :“The offender/complainant, Daud Khan s/o Habib KhanPathan, is sentenced to suffer simple imprisonment fortwo months and to pay a fine of Rupees 200/-, in defaultto suffer S.I. for ten days.” CriAppeal-283-2005-7- 9.What transpires from above material is that, informant himselfis prosecuted by learned trial Judge under Section 344 of Cr.P.C.,accusing him for giving false evidence. There is no doubt that, givingfalse evidence gravitates offence, more particularly when it is givenon oath. Section 191 of IPC deals with offence of such kind.10.Here, admittedly, Section 344 of Cr.P.C. is invoked by learnedtrial Judge. For the sake of convenience and clarity, Section 344Cr.P.C. is reproduced as under :“344. Summary procedure for trial for giving falseevidence. - (1) If, at the time of delivery of any judgment or finalorder disposing of any judicial proceeding, a Court ofSession or Magistrate of the first class expresses anopinion to the effect that any witness appearing in suchproceeding had knowingly or willfully given falseevidence or had fabricated false evidence with theintention that such evidence should be used in suchproceeding, it or he may, if satisfied that it is necessaryand expedient in the interest of justice that the witnessshould be tried summarily (emphasis laid) for giving orfabricating, as the case may be, false evidence, takecognizance of the offence and may, after giving theoffender a reasonable opportunity of showing cause why CriAppeal-283-2005-8- he should not be punished for such offence, try suchoffender summarily and sentence him to imprisonment fora term which may extend to three months, or to finewhich may extend to five hundred rupees, or with both.(2) In every such case the Court shall follow, as nearly asmay be practicable, the procedure prescribed for summarytrials.(3) Nothing in this section shall affect the power of theCourt to make a complaint under section 340 for theoffence, where it does not choose to proceed under thissection.(4) Where, after any action is initiated under sub-section(1), it is made to appear to the Court of Session orMagistrate of the first class that an appeal or anapplication for revision has been preferred or filed againstthe judgment or order in which the opinion referred to inthat sub-section has been expressed, it or he shall stayfurther proceedings of the trial until the disposal of theappeal or the application for revision, as the case may be,and thereupon the further proceedings of the trial shallabide by the results of the appeal or application forrevision.” 11.Above provision goes to show that at the threshold, courtinvoking such provision has to first record opinion that witness hasgiven false evidence, and upon noting and recording such satisfaction CriAppeal-283-2005-9- on the strength of reasons assigned therein, it is further to be gaugedand ascertained that, it is also expedient in the interest of justice thatthe witness, who gave false evidence, needs to be tried..It is fairly settled and dealt time and again in numerous casesthat, formation of opinion is not a mere empty formality. It isexpected of the court to draw conclusion that there is deliberateattempt on the part of the witness to give false evidence. Hence, therehas to be element of mens rea in doing so.12.At this juncture, it would be fruitful to reproduce theobservations of the Hon’ble Apex Court in the case of Santokh Singhv. Izhar Hussain AIR 1973 S.C. 2190, which read as under :“Every incorrect or false statement does not make itincumbent on the court to order prosecution. The courthas to exercise judicial discretion in the light of all therelevant circumstances when it determines the questionof expediency. The court orders prosecution in the largerinterest of the administration of justice and not to gratifythe feelings of personal revenge or vindictiveness or toserve the ends of a private party. Two frequentprosecutions for such offences tend to defeat its veryobject. It is only in glaring cases of deliberate falsehoodwhere conviction is highly likely, that the court shoulddirect prosecution.” CriAppeal-283-2005-10- 13.Further, the court so taking suo motu action, is expected toadopt prescribed summary procedure and one finds reference to thisextent in the provision of Section 344 Cr.P.C. itself, which isreproduced herein-above. Once, the court is expected to adoptdistinct procedure as provided above, then stages provided insummary trial are expected to be adhered to and followed, i.e.recording of plea, offering choice to accept guilt and then sufficienttime is required to be given to the accused to answer the charge i.e. inorder to given fair trial. Fair trial contemplates sufficient opportunityto contest and answer the indictment. 14.The wording of Section 344 Cr.P.C. contemplates prima faciedrawing conclusion that false evidence has been given; secondly, itwas deliberately, willingly, knowingly, and last but not least, that it isexpedient in the interest of justice to proceed against the witness forgiving false evidence. But again, for proceeding under Section 344 ofCr.P.C., as stated above, summary procedure is to be undertaken. 15.Here, what is emanating from the above judgment is thatfirstly, prosecution case in trial court was rested on the testimony ofin all 10 witnesses. Out of those, 6 witnesses have not supportedprosecution. Therefore, here, it is clear that out of such witnesses, CriAppeal-283-2005-11- only present appellant/original complainant has been chosen andpicked up to face the charge of perjury i.e. without specificallyassigning reason as to why he alone is required to be proceededagainst. The fundamental ground raised before this Court by learnedcounsel for the appellant is precisely on such count and he has poseda question as to why only present appellant is singled out.16.It is also noticed that when a distinct procedure is contemplatedfor dealing with a person giving false evidence on oath, coupled withexistence of pre-condition for initiating proceedings viz. prima facieopinion about giving false evidence and secondly, it is expedient inthe interest of justice to inquire into by assigning sound reasons,scrupulous adherence to the procedure is mandated. Here, however,record shows that on the day of judgment itself, learned trial Judgeformed opinion that false evidence has been given and further, trialcourt on same day, put appellant to show cause, followed byrecording his explanation and pronouncing his guilt. Plea, as expectedand mandated under summary procedure was not recorded. Nobreathing or sufficient time was offered to the complainant, who is alayman, to face the charge. He had been denied opportunity to berepresented by a legal expert. Therefore, it is clear that in a hurriedmanner, learned trial Judge on the same day, formed opinion, issued
Decision
CriAppeal-283-2005-12- show cause notice, noted explanation and even recorded guilt,followed by passing sentence. Therefore, in the considered opinion ofthis Court, the trial Judge circumvented procedure in conducting theproceedings and recording guilt. In fact, procedure contemplated hasnot been adopted or adhered to. Hence, such judgment not beinggood in the eyes of law, cannot be allowed to be sustained. Hence, Iproceed to pass the following order :ORDERI.The appeal is allowed.II.The conviction awarded to the appellant by learned 1st AdhocAdditional Sessions Judge, Aurangabad in Sessions Case No. 16of 2005 under Section 344 of Cr.P.C. on 30.03.2005 standsquashed and set aside.III.The appellant stand acquitted of the offence punishable underSection 344 of Cr.P.C.IV.The bail bonds of the appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period. [ABHAY S. WAGHWASE, J.]vre