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2002 DIGILAW 511 (ORI)

SANKARLAL AGRAWAL v. SPECIAL JUDGE (C. B. I. )

2002-08-13

R.K.PATRA

body2002
JUDGMENT : R.K. Patra, J. - In this application u/s 482, of the Code of Criminal Procedure, the Petitioner seeks quashing of the order dated 14.10.1999 by which the learned Sub-Divisional Judicial Magistrate, Bhubaneswar in 2(c) C.C. Case No. 294 of 1999 has taken cognizance u/s 193, IPC and issued summons to him. 2. The aforesaid case (2)(c) C.C. Case No. 294 of 1999) has been registered on the basis of the complaint made by the learned Special Judge (C.B.I.), Bhubaneswar on 14.10.1999. 3. The facts leading to filing of the complaint against the Petitioner are as follows: The learned Special Judge was trying one Bishnu Charan Das in T.S. Case No. 104/41 of 1999/1996 on his file under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 13(2) of the said Act. The case of the prosecution against the said accused-Bishnu Charan Das was that during the relevant year 1996, he was working as Assistant Grade-II (Depot) and Head-in-charge of the F.C.I., Food Storage Report in Kesinga. The Petitioner used to supply levy rice to the F.C.I., through trucks which used to make entry through, the main gate of the Depot of the F.C.I, at Kesinga. On 24.1.1995 the truck bearing registration number OMI 2748 was sent by the Petitioner with 132 bags of levy rice. Although the truck entered into the depot at about 4.30 p.m., the same was not unloaded. In the evening of that day the Petitioner's staff members informed him that the accused-Bishnu Charan Das had been demanding money for unloading the truck. On the next day, i.e. on 25.1.1995 the Petitioner went to the accused and discussed with him. The accused demanded Rs. 1000/- as bribe for permitting the truck to be unloaded. With reluctance, the Petitioner agreed to meet the demand made by the accused. As the demand of bribe for permitting the truck to be unloaded was illegal, the Petitioner lodged FIR with the CBI staff alleging demand of bribe. The CBI staff after discussion with the Petitioner decided to lay a trap on 26.1.1995. The accused as per the programme arrived in the Mill premises of the Petitioner on the date fixed and sat on the sofa placed in front of the Gadia. The CBI staff after discussion with the Petitioner decided to lay a trap on 26.1.1995. The accused as per the programme arrived in the Mill premises of the Petitioner on the date fixed and sat on the sofa placed in front of the Gadia. He was offered with some snacks and in course of eating, when he reiterated his demand, the Petitioner brought out the tainted money of Rs. 1000/- from his shirt pocket and gave it to him. The accused accepted the money by his left hand and kept the same in. his chest pocket. As per the pre-arrangement, the Petitioner gave signal by rubbing his head. The CBI staff immediately rushed in and caught hold of the accused with the money. On the aforesaid allegations, as indicated, the accused was placed on trial before the learned Special Judge to face charges under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 13(2) of the said Act. 4. During trial the Petitioner was examined as P.W.1 by the prosecution. Besides him, five more witnesses were examined. The learned Special Judge after perusing the evidence on record acquitted the accused Bishnu Charan Das of the charge by giving him the benefit of doubt as per the judgment dated 13.10.1999. While recording the order of acquittal, the learned Special Judge in paragraph 31 of the judgment recorded as follows against the Petitioner who, as stated earlier, was -examined as P.W.1 in the case. 21. Also I feel that P.W.1 namely Sankarlal Agarwal having supported the case of the prosecution in his examination in chief has denied the same in his cross-examination. When he was asked as to how he did so, he even could not give a satisfactory explanation in that regard. This indicates that he has suppressed the truth and has given false evidence in the Court. In order to stop this type of practice In future and to punish the mischief monger I propose to prosecute him u/s 193 of the IPC in the appropriate forum by filing a complaint. 5. This indicates that he has suppressed the truth and has given false evidence in the Court. In order to stop this type of practice In future and to punish the mischief monger I propose to prosecute him u/s 193 of the IPC in the appropriate forum by filing a complaint. 5. The gravamen of allegation made in the complaint lodged against the Petitioner is that he gave false evidence, in as much as, he did not support the prosecution and changed his version and because he could not give any satisfactory explanation for such change of version, he has committed an offence punishable u/s 193, IPC for the sake of convenience, the first part of Section 193, IPC, with which the present case is concerned is extracted hereunder: (1) whoever intentionally gives false evidence in any stage of a judicial proceedings, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; (2) and From the above provision it may be seen that there are two principal heads under which offences relating to false evidence are class (i) giving false evidence in any judicial proceeding; and (ii)fabricating false evidence with a view to use the same in any judicial proceeding. As indicated above, the present matter deals with the allegation of intentionally giving false evidence only. Section 191, IPC defines the offence of "giving false evidence" which is made punishable u/s 193, IPC. In order to sustain the charge under the heading "giving false evidence" punishable u/s 193, IPC, the following facts are necessary to be established: (i) accused was legally bound to state the truth either by oath or by an express provision of law (ii) he accordingly made the statement; (iii) he did make the statement intentionally; and (iv) the statement is false. At this stage, it is relevant to refer to Section 340. Code of Criminal Procedure which lays down that only if the Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into an offence referred to in Section 195(1)(b) such Court may make a complaint thereof in writing. 6. As held by the Supreme Court in Chajoo Ram Vs. Code of Criminal Procedure which lays down that only if the Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into an offence referred to in Section 195(1)(b) such Court may make a complaint thereof in writing. 6. As held by the Supreme Court in Chajoo Ram Vs. Radhey Shyam and Another giving of false evidence no doubt is an evil which must be effectively curbed with a strong head but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defects its very purpose. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent and not merely because there is a sone inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. A Division Bench of Kerala High Court in Kuriakose Vs. State of Kerala, held that it is not in all cases when witnesses speak falsehood that section shall be initiated against him for perjury by invoking Section 340 Code of Criminal Procedure. There must be prima facie satisfaction on the part of the Court that such a proceeding should be initiated "for the interest of justice" and that there is prima facie evidence to come to the conclusion that false evidence was tendered. In absence of these conditions, the Court will not be justified in proceeding with the matter. The proceedings u/s 340, Code of Criminal Procedure should not be initiated as a matter of course even when the witnesses give contradictory evidence. The Court should act with utmost circumspection in launching prosecution. In the said judgment. Presiding Officers of subordinate Courts have been cautioned to be circumspect in its proceedings in launching prosecution. against witnesses u/s 193, IPC. A learned Single Judge of this Court in State v. Bhubaneswar Nayak 41 (1975) CLT 341, observed that prosecution for perjury should be launched only in those cases where perjury appears to be deliberate and conscious. In K.T.M.S. Mohd. and another Vs. against witnesses u/s 193, IPC. A learned Single Judge of this Court in State v. Bhubaneswar Nayak 41 (1975) CLT 341, observed that prosecution for perjury should be launched only in those cases where perjury appears to be deliberate and conscious. In K.T.M.S. Mohd. and another Vs. Union of India the Supreme Court held that the mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury u/s 193. IPC but it must be established that deponent has intentionally given a false statement in any stage of the judicial proceeding' or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further such a prosecution for perjury should be taken only if it is expedient in the interest of justice. 7. Keeping the aforesaid Observations made in view let me examine the facts of the present case. I have perused the judgment dated 13.10.1999 passed by the learned Special Judge (C.B.I.), Bhubaneswar in T.R. Case No. 104/41 of 1999/1996. In paragraph-6 of the judgment, the Special Judge has discussed the evidence of P.W.1 (Petitioner). Mi observed that though he supported the case to the hilt in his examination in-chief, in his cross-examination however he gave a go-by to the case of the prosecution and turned hostile. In his examination-in-chief he stated that the accused reiterated the demand of Rs. 1000/- for the work done by him on the previous day and asked him to pay Rs. 1000/-. On his demand, he paid him Rs, 1000/- which he had kept in his shirt chest pocket. He received the said amount of Rs. 1000/- by his left hand and kept the said amount in his shirt chest pocket without counting. He was taking snacks in his right hand by the time he received Rs. 1000/- in his left hand, in his cross-examination, the Petitioner (as P.W.1) stated that he put the tainted money in the shirt pocket of the accused while he was taking snacks. To the suggestion made by the defence he (P.W.1) stated that it is not a fact that he inserted the tainted money in the shirt pocket of the accused while he was leaving his office room and was caught red-handed by the CBI Officers. To the suggestion made by the defence he (P.W.1) stated that it is not a fact that he inserted the tainted money in the shirt pocket of the accused while he was leaving his office room and was caught red-handed by the CBI Officers. After the Public Prosecutor filed a petition to put him leading questions u/s 154 of the Evidence Act, P.W.1 stated in his cross-examination as follows: 19.1 cannot say if my statement in chief that the accused further reiterated the demand of Rs. 1000/- for the work done by him on the previous day and asked me to pay Rs. 1000/- and on his demand I paid him Rs. 1000/- which he had kept inside his shirt chest pocket and that he received the said amount of Rs. 1000/- by his left hand and kept the said amount in his shirt chest pocket without counting is correct or not. 8. I have carefully perused the deposition of P.W.1 as well as the so-called offending Statements noted in the complaint filed by the Special Judge. No doubt the Petitioner, as P.W.1, made inconsistent statements with regard to the manner of giving bribe to the accused. In the examination-in-chief he deposed that he handed over the bribe amount of Rs. 1000/- to the accused, who received the same by his left hand and kept it in his shirt chest pocket. In the cross-examination he stated that he put the tainted money in the shirt pocket of the accused while he was taking snacks. The aforesaid statement of the witness cannot be read in isolation. Just before he stated so, he deposed that there was no talk regarding any monetary transaction pertaining to the FCI when he was taking snacks and before supply of snacks. He further denied the suggestion by saying that "it is not a fact that I inserted the tainted money in the shift pocket of the accused, while he was leaving the office room and was caught red-handed by the CBI Officers". From the aforesaid; I have no doubt in my mind that he stuck to the version that he paid Rs. 1000/- to the accused as bribe as per his previous demand. The manner of handing over or giving the amount of Rs. 1000/- is not very material and inconsequential. The witness might have got confused while answering questions put to his in the cross-examination. 1000/- to the accused as bribe as per his previous demand. The manner of handing over or giving the amount of Rs. 1000/- is not very material and inconsequential. The witness might have got confused while answering questions put to his in the cross-examination. As it appears, he was examined for three days which started on 18.9.1997 and was closed on 20.9.1997 standing in a witness box for three successive days and answering questions put in cross-examination is grueling. He must have gone through a lot of trauma during these three days and might have made some varying statements in course of his deposition. His failure to give any satisfactory explanation for giving inconsistent or contradictory statements does not lead to the conclusion that he gave false evidence. There is nothing oh record to suggest that he deliberately made any contradictory or inconsistent statements in course of his entire examination. 9. The judgment of the learned Special Judge would further show that the acquittal of the accused was not based solely on the evidence of P.W.1. The prosecution examined P.Ws. 3 and 4, bank officials to corroborate the evidence of P.W.1. They were trap witnesses. In paragraph 13 of the judgment the Special Judge has recorded a finding that no reliance can be placed on the evidence of P.Ws. 3 and 4 to establish that the accused demanded and accepted money from P.W. 1. In paragraph 17 of the judgment the Special Judge has held that though P.Ws. 3 and 4 gave vivid description of the occurrence, in view of the suppression of facts made by them it is risky to rely on them. 10. May it be stated that in the judgment the Special Judge has not-recorded any finding that P.W.1 intentionally made a false statement. In the complaint lodged by him there is also no such mention, is already stated, the main ingredient to attract 193. IPC is that the accused made the statement intentionally and the. 10. May it be stated that in the judgment the Special Judge has not-recorded any finding that P.W.1 intentionally made a false statement. In the complaint lodged by him there is also no such mention, is already stated, the main ingredient to attract 193. IPC is that the accused made the statement intentionally and the. statement was false: Besides this, the Special Judge has not recorded in his judgment (or even in the complaint) that prosecution for perjury is necessary in the interest of justice as mandatorily required u/s 340, Code of Criminal Procedure for all the reasons stated above, the complaint made by the learned Special Judge is not a valid one and the learned S.D.J.M. therefore, clearly erred in law in taking cognizance on such invalid complaint. 11. The Petitioner has, therefore, made out a case for exercise of this Court's inherent jurisdiction to quash the criminal proceeding initiated against him. I am therefore of the opinion that to prevent the abuse of the process of the Court and to secure the ends of justice, exercise of the power u/s 482. Code of Criminal Procedure is necessary to quash the entire proceeding pending against the Petitioner on the file of the S.D.J.M., Bhubaneswar. I order accordingly. Criminal Misc. Case is allowed.