State v. Deepak Maurya and another), arising out of F.I.R. No

"to quash the entire proceeding of Misc. Case No.579/24 in Session Trial No.840/2021 (State vs. Deepak Maurya and another), arising out of F.I.R. No.266/2020, under Sections 323, 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station - Lalganj, District - Rae Barely, pending in court of Additional District and Session Session Judge (FTC), III, Rae Barely as well as impugned summoning order dated 20.08.2024 under Section 344 Cr.P.C."

4. The brief facts of this case are that an F.I.R. dated 10.06.2020 lodged by the applicant, who is father of the victim, against Deepak Mauraya and his father and mother under Section 323, 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act. Daughter of the applicant was married to Deepak Maurya.

5. The trial court while acquitting the husband of the daughter of the applicant alongwith his family members by its judgement and order dated 20.08.2024 has also observed that the PW.1 i.e. applicant had not supported the version of the F.I.R. and has sufficient material for initiating the proceedings against the applicant i.e. P.W.1 under Section 344 Cr.P.C. by lodging miscellaneous case separately and consequential impugned order dated 20.08.2024 was passed whereby the summon has been issued against the applicant. The basis for initiation of the proceedings under Section 344 Cr.P.C. is that the F.I.R. lodged by the applicant and the evidence given during the trail is not in consonance. While passing the said order, learned court below has failed to consider that the F.I.R. or a complaint cannot be basis to arrive at the conclusion that the witness has given false evidence as the same would run contrary to the language used in Section 344 of the Criminal Procedure Code.

6. The lodging of an F.I.R. before the police cannot be treated as a statement on oath. It is not an statement in a judicial proceedings. Section 344 Cr.P.C. is attracted where any statement on oath given during the trial and subsequently given an statement by filing an affidavit totally contrary to the earlier statement on oath. Only in that circumstances Section 344 Cr.P.C. will come into play. It cannot be said that there is purjery unless the applicant as on oath, stated facts on which false statement was given and then denied the fact on subsequent action.

7. Section 344 Cr.P.C. is very clear and there is no ambiguity as it has been provided that in a proceeding any witness appearing had knowingly and willfully given false evidence or had fabricated the false evidence with an intention that such evidence should be used in such proceedings and in pursuance thereof cognizance of the offence was taken in that case, Section 344 Cr.P.C. will come into play.

8. Learned counsel for the applicant has relied upon the case of Bant Singh Vs. State of Panjab and others reported in (2014) SCC Online P& H 5406, the relevant extract is quoted hereinbelow: "In T. Bhagi Patra v. State of Orissa, 1996 Crl.L.J., 2423, the petitioner was being prosecuted for giving false evidence as he had not supported the contents of the FIR. The Orissa High Court considering the scope of Section 344 Cr.P.C. in context to the contents of FIR held that for the purpose of Section 344 Cr.P.C., FIR and the statement on oath in the Court cannot form foundation for launching prosecution under Section 344 Cr.P.C.. It was held that in order to make a person liable for false evidence he should have given a statement on oath regarding the facts on which his statement was based and then denied those facts on oath on subsequent occasion. Earlier statement regarding the said facts must be on oath and his statement also must be on oath. If both the statements become irreconcilable, there is scope for forming an opinion for initiation of prosecution. The relevant portion of the judgment is reproduced as under:- “7. Keeping the aforesaid principles in view, the order passed in the present case is to be tested. In the instant case, the informant was examined as P.W. 6 and he has categorically denied the execution of the FIR or the Zimanama. He also stated that no goat of his was ever removed from his possession. The record indicates that the informant has signed his deposition in Oriya, whereas the FIR bears his LTI. The learned Magistrate has not taken any other LTI of the informant to compare with the LTI in the FIR in the absence of any other material, the formation of opinion in an extremely cryptic manner is not appropriate. The recording of satisfaction also suffers from similar infirmity. The Magistrate has not indicated with regard to the expediency or interest of justice in proper perspective. The discretion used by the Magistrate to launch the prosecution has not been properly exercised. The approach of the Magistrate being entirely erroneous, the impugned order is unsustainable. Ex proprio motu direction of the Court is unjustified.

8. The order of the Magistrate is also not sustainable as the concept of “false evidence” in the instant case is not attracted. The informant was examined as P.W. 6 and he denied the execution of the FIR or the Zimanama. He also stated that no goat of his was ever removed from his possession. There is no material on record to show that this evidence was false, inasmuch as, there is no other statement on oath to have a clear opinion that the witness gave false evidence. The lodging of an FIR before the police cannot be treated as a statement on oath. It is not a statement in a judicial proceeding. An FIR or a complaint cannot be the basis to arrive at the conclusion that the witness has given false evidence as the same would run contrary to the language used in Section 344 of the Code, comparison between the FIR, or lodging of the FIR, and the statement on oath in Court cannot form the foundation for launching prosecution under Section 344 of the Code. It is requisite, may, essential, that is order to make a person liable for false evidence, he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on subsequent occasion. The earlier statement regarding a set of facts must be on oath and his subsequent statement also must be on oath. If both the statements become irreconcilable there is scope of forming an opinion for initiation of the prosecution. In this regard, the decision in Emperor v. Bankatram Lachiram, 1904 (1) Criminal Law Journal, 390, may be profitably quoted:- “It is a well-known rule of law, applied by eminant judges to case of perjury arising out of contradictory statements that the Court dealing with them should not convict unless fully satisfied that the statements are from every point of view irreconcilable; and if the contradiction consists in two statements opposed to each other, as to matters of inference or opinion on which a man may take one view at one time and a contrary view at another, there can be no perjury, unless he has, on oath, stated facts on which his first statement was based and then denied these facts on oath on a subsequent occasion. (Emphasis supplied)"

9. In view of the facts, circumstances and discussion made hereinabove, the order of the trial court dated 20.08.2024 only in so far it relates to registration of Misc. Case against the applicant under Section 344 Cr.P.C. in Session Trial No.840/2021 (State vs. Deepak Maurya and another), arising out of F.I.R. No.266/2020, under Sections 323, 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station - Lalganj, District - Rae Barely and the consequential order dated 20.08.2024 summoning the applicant are hereby set-aside.

10. The application under Section 482 Cr.P.C. is allowed. Order Date :- 10.4.2025 S. Kumar

"to quash the entire proceeding of Misc. Case No.579/24 in Session Trial No.840/2021 (State vs. Deepak Maurya and another), arising out of F.I.R. No.266/2020, under Sections 323, 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station - Lalganj, District - Rae Barely, pending in court of Additional District and Session Session Judge (FTC), III, Rae Barely as well as impugned summoning order dated 20.08.2024 under Section 344 Cr.P.C."

4. The brief facts of this case are that an F.I.R. dated 10.06.2020 lodged by the applicant, who is father of the victim, against Deepak Mauraya and his father and mother under Section 323, 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act. Daughter of the applicant was married to Deepak Maurya.

5. The trial court while acquitting the husband of the daughter of the applicant alongwith his family members by its judgement and order dated 20.08.2024 has also observed that the PW.1 i.e. applicant had not supported the version of the F.I.R. and has sufficient material for initiating the proceedings against the applicant i.e. P.W.1 under Section 344 Cr.P.C. by lodging miscellaneous case separately and consequential impugned order dated 20.08.2024 was passed whereby the summon has been issued against the applicant. The basis for initiation of the proceedings under Section 344 Cr.P.C. is that the F.I.R. lodged by the applicant and the evidence given during the trail is not in consonance. While passing the said order, learned court below has failed to consider that the F.I.R. or a complaint cannot be basis to arrive at the conclusion that the witness has given false evidence as the same would run contrary to the language used in Section 344 of the Criminal Procedure Code.

6. The lodging of an F.I.R. before the police cannot be treated as a statement on oath. It is not an statement in a judicial proceedings. Section 344 Cr.P.C. is attracted where any statement on oath given during the trial and subsequently given an statement by filing an affidavit totally contrary to the earlier statement on oath. Only in that circumstances Section 344 Cr.P.C. will come into play. It cannot be said that there is purjery unless the applicant as on oath, stated facts on which false statement was given and then denied the fact on subsequent action.

7. Section 344 Cr.P.C. is very clear and there is no ambiguity as it has been provided that in a proceeding any witness appearing had knowingly and willfully given false evidence or had fabricated the false evidence with an intention that such evidence should be used in such proceedings and in pursuance thereof cognizance of the offence was taken in that case, Section 344 Cr.P.C. will come into play.

8. Learned counsel for the applicant has relied upon the case of Bant Singh Vs. State of Panjab and others reported in (2014) SCC Online P& H 5406, the relevant extract is quoted hereinbelow: "In T. Bhagi Patra v. State of Orissa, 1996 Crl.L.J., 2423, the petitioner was being prosecuted for giving false evidence as he had not supported the contents of the FIR. The Orissa High Court considering the scope of Section 344 Cr.P.C. in context to the contents of FIR held that for the purpose of Section 344 Cr.P.C., FIR and the statement on oath in the Court cannot form foundation for launching prosecution under Section 344 Cr.P.C.. It was held that in order to make a person liable for false evidence he should have given a statement on oath regarding the facts on which his statement was based and then denied those facts on oath on subsequent occasion. Earlier statement regarding the said facts must be on oath and his statement also must be on oath. If both the statements become irreconcilable, there is scope for forming an opinion for initiation of prosecution. The relevant portion of the judgment is reproduced as under:- “7. Keeping the aforesaid principles in view, the order passed in the present case is to be tested. In the instant case, the informant was examined as P.W. 6 and he has categorically denied the execution of the FIR or the Zimanama. He also stated that no goat of his was ever removed from his possession. The record indicates that the informant has signed his deposition in Oriya, whereas the FIR bears his LTI. The learned Magistrate has not taken any other LTI of the informant to compare with the LTI in the FIR in the absence of any other material, the formation of opinion in an extremely cryptic manner is not appropriate. The recording of satisfaction also suffers from similar infirmity. The Magistrate has not indicated with regard to the expediency or interest of justice in proper perspective. The discretion used by the Magistrate to launch the prosecution has not been properly exercised. The approach of the Magistrate being entirely erroneous, the impugned order is unsustainable. Ex proprio motu direction of the Court is unjustified.

8. The order of the Magistrate is also not sustainable as the concept of “false evidence” in the instant case is not attracted. The informant was examined as P.W. 6 and he denied the execution of the FIR or the Zimanama. He also stated that no goat of his was ever removed from his possession. There is no material on record to show that this evidence was false, inasmuch as, there is no other statement on oath to have a clear opinion that the witness gave false evidence. The lodging of an FIR before the police cannot be treated as a statement on oath. It is not a statement in a judicial proceeding. An FIR or a complaint cannot be the basis to arrive at the conclusion that the witness has given false evidence as the same would run contrary to the language used in Section 344 of the Code, comparison between the FIR, or lodging of the FIR, and the statement on oath in Court cannot form the foundation for launching prosecution under Section 344 of the Code. It is requisite, may, essential, that is order to make a person liable for false evidence, he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on subsequent occasion. The earlier statement regarding a set of facts must be on oath and his subsequent statement also must be on oath. If both the statements become irreconcilable there is scope of forming an opinion for initiation of the prosecution. In this regard, the decision in Emperor v. Bankatram Lachiram, 1904 (1) Criminal Law Journal, 390, may be profitably quoted:- “It is a well-known rule of law, applied by eminant judges to case of perjury arising out of contradictory statements that the Court dealing with them should not convict unless fully satisfied that the statements are from every point of view irreconcilable; and if the contradiction consists in two statements opposed to each other, as to matters of inference or opinion on which a man may take one view at one time and a contrary view at another, there can be no perjury, unless he has, on oath, stated facts on which his first statement was based and then denied these facts on oath on a subsequent occasion. (Emphasis supplied)"

9. In view of the facts, circumstances and discussion made hereinabove, the order of the trial court dated 20.08.2024 only in so far it relates to registration of Misc. Case against the applicant under Section 344 Cr.P.C. in Session Trial No.840/2021 (State vs. Deepak Maurya and another), arising out of F.I.R. No.266/2020, under Sections 323, 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station - Lalganj, District - Rae Barely and the consequential order dated 20.08.2024 summoning the applicant are hereby set-aside.

10. The application under Section 482 Cr.P.C. is allowed. Order Date :- 10.4.2025 S. Kumar