K. J. VAIDYA, J. ( 1 ) THIS suo motu Criminal Misc. Application was initiated by this Court on 5. 7. 1996 while allowing the State appeal (Criminal Appeal No. 803 of 1995) against the order of acquittal passed by the learned Special Judge, Panchmahals at Godhra. While allowing the said appeal, we were prima facie of the view that the Complainant Nathabhai lambabhai and Panch Kamlesh Mohanlal Shah, who did not support the prosecution, were guilty of deliberately giving false evidence before the Court which accordingly constrained us to issue notice to them for the alleged offences punishable under Secs. 193 and 194 of the Indian Penal Code, calling upon them to show cause as to why they should not be prosecuted for the alleged offences. ( 2 ) TO briefly refresh the background of the case, Mansurbhai M. Damor, Head constable, Ranakpur, for demanding bribe of Rs. 1000/- and ultimately accepting Rs. 800/- on 18. 9. 90 from Nathalal Lambabhai, on being charge-sheeted was tried for the alleged offences punishable under Sees. 7, 13 (1) (d) and 13 (2) of the Prevention of corruption Act, 1988, by the learned Special Judge, Panchmahals at Godhra wherein on the complainant and Panch witnesses turning hostile, was acquitted. The State challenged the acquittal order by filing Criminal Appeal No. 803/95 which came to be allowed by this Court (Coram: K. J. Vaidya and D. G. Karia, JJ.) on 29. 6. 1995. While allowing the appeal, we had directed the office to issue notice to the complainant, and Panch as stated above in para 1 of this judgment, giving rise to the present proceedings. ( 3 ) HEARD Mr. N. R. Shukla, Ld. APP for the State and Mr. Jamshed Pardiwala and mr. J. C Sheth, Ld. Advocates appearing for the complainant and panch witnesses respectively. Both the Ld. Advocates have tendered affidavits-in-reply of their clients, which are directed to be taken on record. ( 3 ) HEARD Mr. N. R. Shukla, Ld. APP for the State and Mr. Jamshed Pardiwala and mr. J. C Sheth, Ld. Advocates appearing for the complainant and panch witnesses respectively. Both the Ld. Advocates have tendered affidavits-in-reply of their clients, which are directed to be taken on record. ( 4 ) THE complainant, Nathalal Lambabhai, in his reply to show cause notice, in substance has admitted that he did not support the prosecution while giving the evidence before the Court, but that was because of the circumstances entirely beyond his control clarifying this, he has further stated that as the date of trial was fast approaching, the accused started mounting pressure everyday harassing and pressurising him and his family members even going to the extent of administering threat of killing him, thereby persuading him not to give evidence before the Court in a manner which may ultimately result in order of conviction and sentence against him. It is his further case that he being poor, timid, illiterate Adivasi with a responsibility of maintaining the family, he had indeed no courage left with him to withstand the threats and to go against dictates of the powerful accused who was police-personnel and accordingly yielding to the threat he gave evidence against the prosecution which ultimately enabled the accused in gaining unjust and illegal acquittal. The complainant, who was present before us, has also voluntarily expressed his deep sense of sorrow, repentance and regret and assured us that in future if at all he had any occasion to give evidence before the Court, he will give the version in straight foreward manner true to his conscience, because now he has realised that by submitting to threats of accused, his troubles do not come to end, as in case of giving false evidence before the Court he could be prosecuted and ultimately punished, on the basis of these averments in affidavit, complainant Nathabhai has ultimately prayed to discharge notice issued against him. ( 5 ) SIMILARLY, Panch Kamlesh Mohanlal Shah, has also filed the reply-affidavit in response to the notice issued against him. In substance, it is his case that the incident in question took place somewhere in the year 1990 and the trial came to be conducted long back thereafter in the year 1995. After the lapse of long five years, he was called upon to give evidence before the Court. In substance, it is his case that the incident in question took place somewhere in the year 1990 and the trial came to be conducted long back thereafter in the year 1995. After the lapse of long five years, he was called upon to give evidence before the Court. It is his further case that before entering the witness box for giving evidence, he was not given any opportunity to refresh his memory and "accordingly because of the lapse of time, he had forgotten the exact sequence of the incident in question. It is under these circumstances only that he could not correctly remember as to what had transpired before 5 to 6 years which appears to have constrained the trial Court to declare him hostile at the instance of the learned Public Prosecutors. It is his further case that he had no such previous experience of appearing and giving evidence before the trial Court as a Panch witness and accordingly in the instant case, while giving evidence before the Court after lapse of five years he did not exactly remember what transpired at the time of drawing the Panchnama. It was under these circumstances that he was declared hostile. It is his further case that at no point of time he had any intention of not supporting the prosecution case. He has further stated that as a hostile witness when he was confronted with his certain previous statements made in the Panchnama, he had started remembering the same and as a result started answering affirmatively whatever he remembered in support of the prosecution. The sum and substance of his say before this court is that he had no intention to give a false evidence before the Court but for the lapse of memory he suffered while giving evidence before the Court and accordingly notice issued against him by this Court be discharged. ( 6 ) TURNING first to the affidavit filed by the original complainant, it may be stated that merely because the accused had threatened him and his family-members with dire consequences including killing him, these circumstances standing by themselves are not the least sufficient to justify giving false evidence on oath before the Court and thereby to permit him commit offences punishable under Secs. 192 and 193 of IPC resulting into patently unjust and illegal acquittal. 192 and 193 of IPC resulting into patently unjust and illegal acquittal. These two circumstance at the best can be pleaded in defence at the time of trial and at the most, may, may not be accepted while recording the order of conviction and/or impossing the punishment depending upon the overall facts and circumstances of that particular case. Thus far and not further. This version prima facie at this stage in no case absolves accused of the alleged crime. Similarly, on going through the reply of the panch, Kamlesh Mohanlal Shah, having regard to the facts and circumstances of the case, whatever he has stated in defence also cannot be summarily ruled out at this stage, but once again whatever he has stated in the affidavit, at best can be pleaded in defence at the time of trial and not before that, and accordingly at this stage, on the basis of the said version, trial cannot be forestalled. ( 7 ) IT is indeed quite important to note at this juncture the two important factors-viz. turning of the complainant and a panch witness hostile to the prosecution resulting into unjust acquittal of the accused and this Court ultimately taking an overall pragmatic view of the matter reversed the acquittal order and convicted the accused. In fact, the affidavits filed by the complainant and the panch witnesses throws much needed light upon our criminal justice system-where it is necessary for every criminal Court to carefully appreciate and understand how and under what circumstances witnesses turn round, are declared hostile, before reaching rough and ready conclusion of acquittal. When witnesses turn hostile, there are very many other factors responsible in turning them hostile some of them like those stated in affidavits by the complainant and panch witness. It is not that in all cases the police records false statement of witnesses and therefore while giving evidence before the Court, they dont support the prosecution. The time-gap resulting into serious lapse of memory, coupled with the unconcerned and dozing attitude of the learned pp regarding his duty of getting refreshed the memory of Panch who could not give the correct account of what happened at the time of actual incident resulting into unwarranted acquittal is yet one more reason throwing flood of light on our inefficient public prosecutors. Why many a time Panch witnesses are declared hostile. Why many a time Panch witnesses are declared hostile. This once again further more throws flood of light on some of our inefficient Public Prosecutors because of whom good many cases are lost. This is simply intolerable and yet neither the legal dept. nor the concerned head of the department appears to have done anything to check, control this rampant inefficiency in some of the learned Public Prosecutors as if the public cause is nobodys cause! Panch Kamlesh has stated in his affidavits that the incident in question had taken place in the year 1990 and his evidence came to be recorded after five years in the year 1995! By that time, because of the memory-lapse, he could not give the exact version as given in panchnama. He has further stated that he had no intention to give false evidence before the Court. In this regard, we would also like to refresh the memory of some of the not upto mark learned PPs of the State by inviting their attention to Sec. 159 of the Evidence Act where there is a specific provision regarding refreshing the memory of the witness. The said section reads as under :"759. Refreshing memory: A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questions, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. When witness may use copy of document to refresh memory. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court refer to a copy of such document: provided the Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatise. "7. 1. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court refer to a copy of such document: provided the Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatise. "7. 1. From the aforesaid provision, it is indeed clear that moment the panch witness starts fumbling and ultimately before losing the balance collapses and as a result is declared hostile, resulting into great prejudice to the prosecution, the immediate oxygen could be and accordingly ought to be supplied to him by the concerned PP, by helping him out to refresh his memory by referring him to his previous statement, panchnama, etc. If this much legally permissible ordinary care was taken by the learned PP at the appropriate stage, then in that case and for that purpose in many such other cases like the present one, a witness can be saved from being declared hostile which will ultimately help the prosecution in removing the cloud of suspicion surrounding him, which many a time is successfully attempted and exploited at the back of witnesses by some scheming accused Bearing in mind the aforesaid vital lapses on the part of the Id. PP its indeed high time that State properly educate its public prosecutors in the first instance regarding their duty/right under Sec. 159 of the Evidence Act to refresh the memory of panch witness if he for whatever reason is found to be fumbling and not supporting the prosecution case and in the second instance if there be the further need, then to weed out its inefficient, insincere Public Prosecutors in the overall interests of justice. ( 8 ) FROM the sad experience we are Having these days, we find number of criminal case not attended ably, efficiently by the ld. PP in charge of the case. We find some of them lacking in knowledge of the elementary principle of Criminal Procedure Code and evidence Act. Take for instance the present case. Was it not the duty of the Id. PP to refresh the memory of panch witnesses by drawing his attention to the relevant contents of Panchnama? Still it is not done. We find some of them lacking in knowledge of the elementary principle of Criminal Procedure Code and evidence Act. Take for instance the present case. Was it not the duty of the Id. PP to refresh the memory of panch witnesses by drawing his attention to the relevant contents of Panchnama? Still it is not done. This may not be necessarily dishonesty on the part of the learned PP but at the same time it exposes him to lack of knowledge of Sec. 159 of the evidence Act which in turn helps accused in getting cheap acquittal. Under the circumstances, we strongly feel that like the Judicial Academy, State should also go for some special training and refresher course for PPs by having the State Public Prosecutor academy. In our opinion, case-wise the performances of Public Prosecutor are quite needed to be supervised and controlled by the Govt. In this regard, the Govt. can be best assisted by the concerned Magistrates, Judges who must carefully note the remissness and failings of the concerned ld. PPs by making appropriate observations in the judgment itself, forwarding the copy of the same to (1) the Collector, Commissioner of Police and dsp of the area, (2) Secretary, Home, (3) Secretary, Legal Department, Government of gujarat at Gandhinagar for appropriate action at their respective ends. This, very Court is duty-bound to serve the overall cause of justice. For any failure on the part of the concerned learned trial Judges or Magistrates to make suitable observation against the concerned Id. PP. If the criminal justice system ultimately starts failing, they would remain accountable. In the beginning, the concerned Id. PP not discharging duty properly should be warned. If he does not care the warning, the concerned court must make observation against him and forward the copy to higher-ups as directed above. ( 9 ) IN fact when panch appears in a witness-box to give evidence, over and above the id. Public Prosecutor, it is also the duty of the trial Court to remind him that if he because of passage of time finds it difficult to give evidence before the court he can certainly refresh his memory by looking at his previous statement, viz. panchnama. The reason is, the trial Court cannot be permitted to be a passive spectator to failure of justice when it is duty bound to uphold the cause of justice. panchnama. The reason is, the trial Court cannot be permitted to be a passive spectator to failure of justice when it is duty bound to uphold the cause of justice. By taking this much desired interest, the trial judge helps the cause of justice, prevents miscarriage of justice, which is his prime duty. ( 10 ) IN view of the aforesaid discussion, having gone through the respective replies of the complainant and thepanch witness, ordinarily we would have directed the Registrar to take the appropriate action against them for the alleged offences under Sees. 193 and 194 of the IP Code because whatever has been argued before us is at the most and best a defence version which may be accepted or rejected at the time of trial, more particularly when we have been prima facie of the opinion that the offences under Sees. 193,194 of IPC Code had taken place. Still, however, in the instant case, the type of the case being first only, we are not inclined to take any immediate legal steps, but at the same time, by issuing notices to the hostile witnesses we, in the first instance sound a bell of warning quite sufficient to put all criminal Courts on alert and likewise direct them to issue notices and also prosecute persons giving false evidence on oath before the court and in the second instance also sending warning signals to all those witnesses with tendencies of give false evidence before the Court to the effect that turning hostile to the prosecution is neither a fun nor joke but is fraught with imminent grave danger wherein while illegally helping taking the accused out of the trap of conviction and sentence, they themselves may inextricably walk into it, making themselves face the criminal trial for the offences under Secs. 191 and 193 of the IP Code, and suffer order of conviction and sentence on the case being made out against them. ( 11 ) REMINDER to trial Court of its duty to initiate proceedings in appropriate cases, against prosecution witnesses declared hostile. 191 and 193 of the IP Code, and suffer order of conviction and sentence on the case being made out against them. ( 11 ) REMINDER to trial Court of its duty to initiate proceedings in appropriate cases, against prosecution witnesses declared hostile. We all quite well know the open secret, rather the trick of the trade and the easierst way to success in criminal cases it is not always necessarily the legal ingenuity, acumen or brilliance that wins the case as it is to often winning over the prosecution witnesses at any cost by whatever means, foul or fair available administering threats, giving promises and inducement and thereby getting him declared hostile, snatching unjust and illegal acquittals bringing about personal success and glory and the miscarriage of justice. In the instant case also, because of the complainant and Panch witnesses not supporting the prosecution, the accused came to be acquitted, and when notices came to be issued against them, the real light of the day-rather the true story as to how and under what circumstances they did not support the prosecution case came out!! From this, all the criminal courts in the State must take a clue, serious note and learn a lesson as to how even good cases can be just let down by hostile prosecution witnesses which can be saved by taking overall pragmatic and common-sense substantial justice-oriented view of the matter and also by taking deterrent action of issuing notices against hostile witnesses! When indeed its the ultimate duty of and responsibility of the Courts to do justice, give justice, it is equally its further more duty to see and ensure that the offences affecting the Administration of justice are sternly dealt with. If this much care is not taken, to that extent concerned court can be said to be failing in discharge of its duty. Here, in this regard we would like to put questions to all concerned as to why in Chapter XI of IP Code pertaining to of false evidence and offences the public justice (Secs. 191 to 229) and the procedure as to provisions as to offences affecting the administration of justice (Sec. 340 onwards) in the Criminal Procedure Code is made? Here, in this regard we would like to put questions to all concerned as to why in Chapter XI of IP Code pertaining to of false evidence and offences the public justice (Secs. 191 to 229) and the procedure as to provisions as to offences affecting the administration of justice (Sec. 340 onwards) in the Criminal Procedure Code is made? The original Court must know this and in the interests of justice, must repeatedly exercise powers with a view to free the administration of justice afflicted with the chronic disease of hostile witness. ( 12 ) IN view of the aforesaid discussion, unless and until all the Courts gird up their respective loins against the offences affecting the administration of justice, there is indeed no prospect rather no hope for better justice to the people. For the diseases/offences pertaining to the administration of justice, both IP Code and the Criminal Procedure Code have shown way to diagnize the same and follow the prescription, making patient a doctor of its own cause of disease and take the prescribed medicine to cure itself! Every court accordingly must strain itself to keep itself free of the diseases affecting the administration of justice. When the law has armed it with Sees. 191, 193 of IP Code etc. , it is not meant to be rusted and worn out, but is required to be brandished and used. In fact, if the criminal justice is found to be failing in a given case, it is because of the witnesses turning hostile and the witnesses are turning hostile because in given case the ld. PP and for that purpose even the concerned Court is not discharging its duty to stop the rut by taking action against the concerned hostile witnesses. ( 13 ) IN the result, this application stands disposed of, in the light of the observations made in above paragraphs. Notice discharged. ( 14 ) THE Registry is directed to forward the copy of this judgment to (1) The secretary, Legal Department, Gandhinagar; and (2) Director, ACB, Gujarat State, ahmedabad, directing them to circulate a copy of this judgment to all the Public prosecutors of the State impressing upon them to bear in mind use of Sec. 159 of the evidence Act, and in the event of necessity, requesting the court to issue notices against the hostile witnesses for the alleged offences under Secs. 191 and 193 of the IPC. .