JUDGMENT - R.K. JOSHI, J.:---I propose to dispose of these four appeals by a common judgment as they arise out of the same Sessions trial giving rise to a further off-shoot of trying four prosecution witnesses for the offence of perjury, an offence punish- able under section 193 of the Indian Penal Code. The learned Sessions Judge Nasik, tried Sessions Case No. 80 of 1974 against Kisan Gangaram for the murder of one Jayatu Raghu on 20-9-1973 at 3.30 p.m. These four appellants figured as prosecution witnesses in the said Sessions case, but they turned hostile. The statements of these witnesses were recorded by sub-Divisional Magistrate under section 164 of the Cri.P.C. The learned Magistrate was summoned during the course of the trial of the Sessions case and these unrepresented witnesses were asked by the learned Sessions Judge to cross-examine him then and there. The Sessions trial then proceeded and ended into an acquittal so far as the principal offender Kisan Gangaram was concerned. In the said judgment the learned Session Judge observed that these witnesses had perverted the truth and proceeded to try them summarily under section 340 of the new Code of Criminal Procedure. While trying these four appellants summarily, no fresh evidence was adduced and on the strength of the observations made by him in the Sessions case and also the measure adopted in directing the four appellants to cross-examine the Sub-Divisional Magistrate, the cross-examination being nil, be straight way convicted these appellants and awarded each of them R.I. for one month for the offence of perjury Mr. Menghde appearing for these appellants has mainly raised two contentions. In the first instance he submits that although the now Criminal Procedure Code of 1973 given the learned Sessions Judge power to try such offenders summarily for giving false evidence, he has a two-fold duty. In the first instance he has to give an opportunity to the perjurer to show cause why he should not be tried for the offence of perjury. Secondly, he has to follow the mandatory provisions contained in Chapter XX which prescribes the procedure for summary trials under the new Code. The second point raised by Mr. In the first instance he has to give an opportunity to the perjurer to show cause why he should not be tried for the offence of perjury. Secondly, he has to follow the mandatory provisions contained in Chapter XX which prescribes the procedure for summary trials under the new Code. The second point raised by Mr. Menghde was that in all such cases on the evidence to be recorded the learned Sessions Judge while acting as a Magistrate, has to come to a positive conclusion that the earlier statement given under section 164 of the Cri.P.C. was a truthful one and the witness resided from the same in the Sessions trial. There is considerable substance in both these points raised by Mr. Menghde. Provisions as to offence affecting the administration of Justice are contained in Chapter XXVI of the Code of Criminal Procedure, 1973, which would be hereafter referred to as the new Code. Section 340 lays down the procedure in cases mentioned in section 195(i)(b) of the new Code. These offences referred to in section 195(l)(b) cover the filed of perjury and other offences which it is needless to mention. The procedure prescribed by section 340 is that the Court which proceeds under section 340 in such matters otherwise than upon an application made to it in this behalf, has to hold a preliminary inquiry. Secondly, it has to record a finding to that effect that it would be expedient in the interests of justice to hold a further inquiry into the offence of perjury. Sub-section (2) confers a power upon the Court to lodge a separate complaint and if the complaint is lodged, it has to be tried by the Magistrate before whom the case comes up. Section 341 is equally important. It gives a right of appeal to the person against whom such a complaint is made. The superior Court can thereupon, after notice to the parties concerned, direct the withdrawal of the complaint. Then comes section 344 which seems to have weighed with the learned Sessions Judge considerably. Section 341 is equally important. It gives a right of appeal to the person against whom such a complaint is made. The superior Court can thereupon, after notice to the parties concerned, direct the withdrawal of the complaint. Then comes section 344 which seems to have weighed with the learned Sessions Judge considerably. What it says is that if at the time of delivery of any judgment, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding has knowingly or wilfully given false evidence and if it is satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why (he should not be punished for such offence, try such offender summarily and sentence him to imprisonment which may extend to three months), or to fine which may extend to five hundred rupees, or with both. Sub-section (2) is equally mandatory. It lays down that in every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials. Sub-section (3) gives the Court of Session a latitude to make a complaint under section 340 where it does not choose to proceed under this section. The language is quite explicit and a two-fold duty is cast upon the Court of Session which prefers to try such offenders summarily rather than to lodge a complaint under sub-section (3). The first duty cast is to give a reasonable opportunity of showing cause to the offenders and secondly, the trial prescribed for summary cases has to be followed. Section 260 of the new Code which finds place in Chapter XXI deals with summary trials. Section 262 further lays down that in trials under this Chapter (summary trials), the procedure specified in this Code for the trial of summon cases shall be followed. Section 260 of the new Code which finds place in Chapter XXI deals with summary trials. Section 262 further lays down that in trials under this Chapter (summary trials), the procedure specified in this Code for the trial of summon cases shall be followed. Now adverting to the provisions contained in Chapter XX which deals with trial of summons cases by a Magistrate, and which is pro tanto applicable to summary trials, it would be clear that where in a summons case the accused appears or is brought before the Court, the particulars of the offence of which he is accused are required to be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. If he pleads guilty, the Magistrate can act under section 252 and on recording the plea as nearly as possible in his words may, in his discretion convict him. Then comes the important section 254 which deals with cases in which the accused pleads not guilty or the Magistrate is not inclined to convict the accused under section 252 i.e., on 1 a plea of guilty. In all such cases the Magistrate is not relieved of his duty to hear the prosecution and take such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. Section 255 further gives a discretion to the learned Magistrate on recording the evidence of the prosecution and the accused, to get additional evidence suo motu and either to convict or acquit the accused. These are all mandatory provisions. Now, going back to the procedure adopted by the learned Sessions Judge in this case, it is apparent that when these appellants turned hostile, he summoned the Sub-Divisional Magistrate who had recorded their statements under section 164. He asked these appellants who were present in the Court hall, but unrepresented, to cross-examine the learned Sub-Divisional Magistrate then and there. The appellants who are illiterate fishermen had very little to ask to the Sub-Divisional Magistrate, nor did they know for what they were called upon to cross-examine the Sub-Divisional Magistrate which had assumed the shape of a trial within a trial. The matters rested there. The appellants who are illiterate fishermen had very little to ask to the Sub-Divisional Magistrate, nor did they know for what they were called upon to cross-examine the Sub-Divisional Magistrate which had assumed the shape of a trial within a trial. The matters rested there. The learned Magistrate proceeded with the Sessions trial, recorded the remaining evidence and on taking the statements of the two accused in the Sessions case, with strictures against these appellants, acquitted accused No. 1 and convicted accused No. 2. While delivering that judgment in the Sessions case, he observed in Paragraph 24 that these appellants claimed to have eye-witnessed the principal occurrence viz., the murder of Jaytu. Their statements were later on recorded during the course of investigation under section 164 of the Code of Criminal Procedure by the Sub-Divisional Magistrate Mr. Purohit, P.W. 14. On referring to the evidence of Mr. Purohit and the statements recorded under section 164 proceeded the learned Sessions Judge to add that these witnesses unanimously told the learned Sub-Divisional Magistrate that they had actually seen Jaytu (deceased) being struck on the head by means of an axe by accused No. 1 Kisan Gangaram. The next observation runs thus : "............When they came to be examined during this trial before me, all of them underwent a complete metamorphosis, and denied any knowledge of any such accident having been witnessed by them, and denied having made any such statement before the S.D.M. on oath". Next he observed that these appellants had given evidence during the trial was in sharp conflict with their earlier statements before the S.D.M. and these two statements were wholly irreconcilable. Another important observation made reads as under : "If one is true, the other must necessarily be false." This conclusion cannot be said to be necessarily correct. A possibility of both the statements being untrue or false cannot be ruled out. In the opinion of the learned Session Judge, these witnesses by their own conduct had amply demonstrated that the matter sworn to during the trial was either false in fact, or if true, they must not have known it to be really so. This again does not seem to be a correct observation on the material which he had before him. This again does not seem to be a correct observation on the material which he had before him. At the end of the paragraph the learned Sessions Judge observed : "It is, therefore, highly expedient in the interest of justice, and necessary for the eradication of the evil of perjury that such persons should be prosecuted for the offence of perjury, least the people at large should feel that a Court of law is a safe place to make a tryst with the fato of the litigants and culprits deflect the course of justice and yet get away scot-free. A separate action on the conclusion of this trial would be taken up under section 344 of the Code of Criminal Procedure (New) against these five witnesses." To the extent of recording his finding that this was a fit case in the interest of justice to be inquired into, the learned Judge was right; but he has fallen in error in disposing of the matter in the manner he did. It seems the judgment in the Sessions case was delivered on 20-2-1975. Probably all these appellants who had no concern with the Sessions trial after they had given their evidence, were called upon to remain present on 20-2-1975. As directed by the learned Sessions Judge, cases for perjury were registered and were directed to be heard as summary cases. On the very day immediately after delivery of the judgment of the Sessions Court, the learned Sessions Judge barely recorded the statements of these appellants without formally reading out the substance of the case made out against them and recording any evidence, and made the orders under appeal. I have already taken a survey of the relevant provisions contained in the new Code dealing with the powers of the Sessions Court in such cases and the procedure which it is required to follow. With respects, in a word I may say that the learned Sessions Judge has observed the new procedure in its breach. As a matter of fact it is only at the conclusion of the Sessions trial he could make up his mind whether this was a fit case for proceeding ahead against these appellants for perjury in the interest of justice. Unless that finding was recorded, he had no occasion to call upon these accused to cross-examine Mr. Purohit. The Sub-Divisional Magistrate in the midst of the Sessions trial. Unless that finding was recorded, he had no occasion to call upon these accused to cross-examine Mr. Purohit. The Sub-Divisional Magistrate in the midst of the Sessions trial. Secondly, he has utilised the evidence in the Sessions trial viz., the statement of Mr. Purohit and the alleged cross-examination by these five witnesses who were taken unawares, as a piece of evidence for convicting them in these cases. Another grave error into which the learned Sessions Judge has fallen, is to ignore totally the procedure prescribed for the trials of summons cases which is pro tanto applicable to summary trials in all such cases as observed a little earlier. He has to read out the particulars of the offence to the accused and their plea has to be taken. When these appellants pleaded not guilty, as required by section 254 it was incumbent upon the learned Sessions Judge to proceed to hear the prosecution and take all such evidence as would be produced in support of it. It was at this stage he should have called upon the learned Prosecutor who figured in the Sessions trial or the Government Pleader for the State to reappear, adduce his evidence by summoning Mr. Purohit once again and also by producing such other evidence to make out a case against these appellants who figured as accused before him in summary trials. After that evidence was closed, he should have given an opportunity to these appellants to adduce their evidence, if any. The procedure adopted by the learned Sessions Judge is, to say the least, uncalled for and not countenanced by the statute. This has resulted into grave miscarriage of justice to these appellants and the convictions will have to be quashed. There is another aspect which does not seem to have been touched in the lower Court, probably because the summary trials were hustled, nobody seems to have applied their mind to this aspect. Corresponding provisions to accord sanction for perjury and prosecute such liars, find place under the old Code under section 476. There is another aspect which does not seem to have been touched in the lower Court, probably because the summary trials were hustled, nobody seems to have applied their mind to this aspect. Corresponding provisions to accord sanction for perjury and prosecute such liars, find place under the old Code under section 476. It lays down that before the Court can sanction the prosecution of a person for perjury i.e. for making one statement under section 164 of the Code and a contrary statement subsequently before the committing Magistrate (it was the case before their Lordships) or even in the Sessions trial, it is absolutely essential that the Court should be satisfied that the latter statement was untrue. There can be no prosecution if the former statement is untrue; and a fortiori there can be no prosecution if the Court is not in a position to find out which of the two statements is falsa. This is the ratio of the case decided by a Division Bench of this Court in (Emperor v. Nigapa Bamappa Kurbar)1, 43 Bom.L.R. 864. Sir John Beumont, the learned Chief Justice, speaking for the Court, has considered this scope of the statements recorded under section 164 of the Cri.P.C. during the course of investigation and the ambit of their user for proceeding further for offences of perjury. On considering the previous case law, which seems to have taken a somewhat contrary view, the learned Chief Justice observed that it is absolutely essential that the Court should make up its mind whether it was the statement before the Magistrate under section 164 or the statement subsequently made in Court which was false. Proceeded the learned Chief Justice to add : "I gather from the judgment of the learned Additional Sessions Judge that he is disposed to think that it was the statement made under section 164 which was false; but there is really no evidence to enable us to determine which of the two statements was false. If the statement in Court was false, then I agree that in the interests of justice there should be a prosecution; but supposing it was the statement under section 164 which was false, what then ? If the statement in Court was false, then I agree that in the interests of justice there should be a prosecution; but supposing it was the statement under section 164 which was false, what then ? No doubt, a man making a statement on oath before a Magistrate under section 164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently he goes into the witness box. To prosecute a man who has realised from a false statement made under section 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment under section 164 than that he should be induced to believe that it is to his interest, however false the statement may have been, to ahdere, to it and thoro by save himself from prosecution." The observations, it would be clear from the authority, cast an important duty on the Court in such cases to find out from the material on record which of the statement is" false. On this aspect of the matter the learned Sessions Judge, as observed a little earlier, has said that these two statements are irreconcilable and proceeded on the assumption that the statement under section 164 of the Cri.P.C. is true. In the alternative he has said that if one is true the other must be necessarily false. This cannot be said to be true in all cases. A livelihood of both of them being false cannot be ruled out and that is why an imperative duty is cast upon the Court to find out on the material before it, which of the statement is false, record a finding to that effect and then to proceed with such trials. The learned Judge seems to have misdirected himself on both these aspects and the order of conviction cannot be sustained. In the result, all these appeals are allowed. The orders of conviction and sentence are set aside and the accused are ordered to be acquitted and discharged. Their bail bonds stand cancelled. -----