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1999 DIGILAW 1048 (DEL)

VISHNU BHAGWAN v. STATE OF DELHI

1999-11-30

DALVEER BHANDARI

body1999
Dalveer Bhandari ( 1 ) THIS appeal is directed against the judgment of the Special Judge/additional Sessions Judge, Delhi dated 6. 2. 1978 by which theappellant was convicted under Sections 193/181 of the Indian Penal Code forperjury. In accordance with the provisions of Section 344 of the Code of Criminalprocedure, the appellant was sentenced to simple imprisonment for three monthsand a fine of Rs. 300. 00. In default of payment of fine, the appellant was furtherdirected to undergo simple imprisonment for one month. ( 2 ) THE present appeal is an off shoot of Corruption Case No. 29 of 1977, Statev. Radhey Shayam Garg and Others. The arguments which have been advanced inthis case are confined to the interpretation of the provisions of the law. Therefore,i do not deem it appropriate to burden this judgemnt with the detailed facts. Thefacts which are absolutely necessary for disposing of this appeal are recapitulatedas under. ( 3 ) THE appellant, Vishnu Bhagwan was the complainant and the case wasregistered on the complainant s statement dated 3. 9. 1976. The learned Special Judgecame to the conclusion that the appellant wilfully and knowingly made a falsestatement before the Court with the object of shielding the accused person in thecorruption case. The Court issued a show cause notice and reply to the said noticewas filed on 6. 2. 1977. In the reply ,it is indicated that the incident had taken placeone and a half years ago. It is also mentioned in the reply that his Statement, Exhibitpw 2/a, Memo-PW 6/p and statement Public Witness 7/a do not form part of the judicialproceedings and Section 344, Criminal Procedure Code is not applicable to the proceedings before aspedaijudge. This argument was rejected by the learned Spedaijudge. The learnedspecial Judge arrived at the conclusion that according to the Section 8 of thecriminal Law Amendment Act, 1952, a Spedal Judge can take cognizance ofoffences, without the accused being committed to trial. He also mentioned in hisorder that in trying the accused persons, he has to follow the procedure prescribedby the Code of Criminal Procedure for the trial of warrant cases by the Magistrates. On this understanding of law and procedure the learned Special Judge tried andconvicted the accused appellant. ( 4 ) AGGRIEVED by the order of the learned Special Judge, present appeal has beenpreferred TO by the accused/appellant. Mr. On this understanding of law and procedure the learned Special Judge tried andconvicted the accused appellant. ( 4 ) AGGRIEVED by the order of the learned Special Judge, present appeal has beenpreferred TO by the accused/appellant. Mr. B. B. Lall, the learned Senior Counsel,submitted that there has been gross violation of the provisions of the Code ofcriminal Procedure and the conviction recorded by the learned Special Judge istotally unsustainable in law. Mr. Lall, learned Counsel for the appellant has drawnmy attention to Section 344 of the Criminal Procedure Code Section 344 reads as under:344. Summary procedure for trial for giving false evidence- (1) If, at the time ofdelivery of any judgment or final order disposing of any judicial proceeding,a Court of Sessions or Magistrate of the First Class expresses an opinion to theeffect that any witness appearing in such proceeding had knowingly orwilfully given false evidence or had fabricated false evidence with theintention that such evidence should be used in such proceeding, it or he may,if satisfied that it is necessary and expedient in the interest of justice that thewitness should be tried summarily for giving or fabricating, as the case maybe, false evidence, take cognizance of the offence and may, after giving theoffender a reasonable opportunity of showing cause why he should not bepunished for such offence, try such offender summarily and sentence him toimprisonment for a term which may extend to three months, or to fine whichmay extend to five hundred rupees, or with both. (2) In every such case the Court shall follow, as nearly as may be practicable,the procedure prescribed for summary trials. (3) Nothing in this section shall affect the power of the Court to make acomplaint under Section 340 for the offence, where it does not choose toproceed under this section. ( 5 ) MR. Lall submitted that both in the reply and in the statement of accused, theappellant had pleaded not guilty and in the reply he categorically denied thecharges, levelled against him. Therefore, it was incumbent on the Court to try theaccused/appellant, according to the procedure prescribed by the law. Admittedly,there has been no trial in this case and according to appellant, his conviction isunsustainable and liable to be set aside. ( 6 ) IN the Section 344, Cr. P. C. , the words "try such offender summarily" havebeen specifically incorporated. Therefore, it was incumbent on the Court to try theaccused/appellant, according to the procedure prescribed by the law. Admittedly,there has been no trial in this case and according to appellant, his conviction isunsustainable and liable to be set aside. ( 6 ) IN the Section 344, Cr. P. C. , the words "try such offender summarily" havebeen specifically incorporated. The learned Counsel for the appellant submitted that Section 344 (1) require confirmity with the procedure provided for summary trials and in case where the accused pleaded not guilty, there has to be a trial andany conviction without the trial would be clearly violative of the provisions ofsection 344, Cr. F. C. ( 7 ) THE learned Counsel appearing for the State, Mr. Bhutalia submitted that noprejudice has been caused to the appellant because a show cause notice was givenand reply was also filed by the accused appellant. The conviction was recorded onlyafter reply of the appellant was taken into consideration. ( 8 ) ON the other hand, the learned Counsel appearing for appellant vehementlycontended that the procedure as laid down under Section 344, Criminal Procedure Code has to befollowed and no conviction can be recorded unless there is a trial. In reply, theaccused/appellant pleaded not guilty and denied the charges. According to theplane language of the Section 344, Cr. P. C. , the Court had no option but to try theoffender in the facts and circumstances of the case. ( 9 ) THE Legislature in Sub-section (2) of Section 344 has clearly laid down thatthe trial shall follow, as nearly as may be practicable, the procedure prescribed forthe summary trials under the said section. ( 10 ) MR. Lall has also drawn my attention to Sections 252 to 254 in the Chapter20 of the Code of Criminal Procedure, 1973. These sections are reproduced as under: "252. Conviction on plea of guilty-If the accused pleads guilty, the Magistrateshall record the plea as nearly as possible in the words used by the accused andmay, in his discretion, convict him thereon. 253. Conviction on plea of guilty in absence of accused in petty cases- (1) Where asummons has been issued under Section 206 and the accused desires to pleadguilty to the charge without appearing before the Magistrate, he shall transmitto the Magistrate, by post or by messenger, a letter containing his plea and alsothe amount of fine specified in the summons. 253. Conviction on plea of guilty in absence of accused in petty cases- (1) Where asummons has been issued under Section 206 and the accused desires to pleadguilty to the charge without appearing before the Magistrate, he shall transmitto the Magistrate, by post or by messenger, a letter containing his plea and alsothe amount of fine specified in the summons. (2) The Magistrate may, in his discretion, convict the accused in his absence,on his plea of guilty and sentence him to pay the fine specified in the summons,and the amount transmitted by the accused shall be adjusted towards that fine,or where a Pleader authorised by the accused in this behalfpleads guilty onbehalf of the accused, the Magistrate shall record the plea as nearly as possiblein the words used by the Pleader and may, in his discretion, convict theaccused on such plea and sentence him as aforesaid. 254. Procedure when not convicted- (1) If the Magistrate does not convict theaccused under Section 252 or Section 253, the Magistrate shall proceed to hearthe prosecution and take all such evidence as may be produced in support ofthe prosecution, and also to hear the accused and take all such evidence as heproduces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecutionor the accused, issue a summons to any witness directing him to attend or toproduce any document or other thing. (3) The Magistrate may, before summoning any witness on such application,require that the reasonable expenses of the witness incurred in attending forthe purposes of the trial be deposited in Court. " ( 11 ) CONJOINT reading of Sections 252 to 254 lead to irresistible conclusion thatin the case where accused does not plead guilty, the Magistrate has to proceed to hearthe prosecution and take all such evidence as may be produced in support of theprosecution, and also to hear the accused and take all such evidence as he producesin his defence. ( 12 ) MR. Lall placed reliance on the judgment of Dr. M. M. Pasrich v. The Stateof Punjab, The Punjab Law Reporter Vol. 18 (1978) 160. The Division Bench ofpunjab High Court in the case in somewhat similar circumstances, set aside theconviction because requirement of Section 344 (1) was not followed by the Trialcourt which according to the said judgment is mandatory and could not be givenagoby. M. M. Pasrich v. The Stateof Punjab, The Punjab Law Reporter Vol. 18 (1978) 160. The Division Bench ofpunjab High Court in the case in somewhat similar circumstances, set aside theconviction because requirement of Section 344 (1) was not followed by the Trialcourt which according to the said judgment is mandatory and could not be givenagoby. ( 13 ) IN my considered view in the instant case, the procedure, as laid down bysection 344 of the Code of Criminal Procedure, 1973, has not been followed by thespecial Judge and the conviction of the appellant cannot be sustained. In view of thisconclusion, I do not think it necessary to deal with other arguments of the learnedcounsel for the appellant. ( 14 ) IT is the basic principle of Criminal Jurisprudence that in cases where theaccused has not pleaded guilty, there has to be a trial before recording the conviction. The learned Special Judge had given go by to the mandatory requirements of law. In this view of the matter, this Court is left with no option but to set aside theconviction of the appellant. ( 15 ) ORDINARILY, I would have remanded the case and directed that the accusedbe tried afresh in accordance with law, but in the instant case, the conviction wasrecorded in 1978 and that also because the learned Special Judge did not follow theprocedure as laid down under the Criminal Procedure Code. Therefore, remandingthe case for fresh trial after 21 years would hardly be proper, particularly, in the factsand circumstances of this case. In any event the appellant had faced the rigmaroleand agony of the criminal proceedings for over 21 years. ( 16 ) ON consideration of the totality of the facts and circumstances of this case,the conviction of the appellant is set aside. Consequently the appeal is allowed anddisposed of.