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2003 DIGILAW 681 (JHR)

Israil Mian @ Israil Ansari v. State Of Bihar

2003-06-17

AMARESHWAR SAHAY

body2003
JUDGMENT Amareshwar Sahay, J. 1. The present appeal has been filed by the appellant under Section 351 of the Code of Criminal Procedure (hereinafter to be referred as the "Code") against the Judgment and order 27.1.1994 passed by the IInd Additional Sessions Judge, Godda in a proceeding for prosecution under Section 344 of the Code for producing false evidence in Bail Petition No. 345 of 1993 being Cr. Misc. No. 10 of 1993, whereby the learned Additional Sessions Judge convicted the appellant for knowingly producing false evidence with the intention that such evidence be used by the Court for disposal of the bail petition and sentenced him to pay a fine of Rs. 500/-. 2. The facts in short relating to the aforesaid proceeding are that the appellant had filed a complaint petition in the Court of Chief Judicial Magistrate, Godda, against Hazrat Ali, Khuda Buksh, Abjun Bibi, Talib Hussain and Khairan Bibi alleging therein that the accused persons had severely beaten his daughter namely Ajina Bibi who was pregnant, in order to ensure compliance of their demand for dowry, as a result of beating, his daughter died in Sadar Hospital, Godda. 3. By the order of the Court, the aforesaid complaint petition, was registered as Godda (T) P.S. case No. 178 of 1993. The accused persons applied for bail before the Chief Judicial Magistrate, Godda, which was rejected. Thereafter, they applied for bail before the Sessions Judge, Godda which was registered as Bail Petition No. 345 of 1993. In the aforesaid bail petition, a photo copy of the death certificate was received from the Deputy Superintendent of Sadar Hospital in which cause of death was show as "ECALAMPSIA". In the original Death Certificate No. 552285 dated 20.11.1992 produced by the Public Prosecutor, in column of cause of death, in addition to "ECALAMPSIA" it was written as "CAUSE OF ECALAMPSIA" beaten by husband and mother-in-law, 4. In course of hearing of the Bail Petition the learned Additional Sessions Judge, Godda, called for the original death certificate book from Sadar Hospital, Godda and then it was found that description of death in the original counter foil differed from that of the original death certificate produced by the Public Prosecutor. 5. In course of hearing of the Bail Petition the learned Additional Sessions Judge, Godda, called for the original death certificate book from Sadar Hospital, Godda and then it was found that description of death in the original counter foil differed from that of the original death certificate produced by the Public Prosecutor. 5. The learned Additional Sessions Judge found that alleged original copy of the death certificate filed by the Public Prosecutor on 2.11.1993 was manipulated and the whole sentence written in column cause of death was a forgery and manipulation in evidence in order to manufacture a false evidence intended to mislead the Court to give a wrong judgment. 6. The learned Additional Sessions Judge further found that with regard to the death of the deceased two different Death Certificate being 552285 dated 20.11.1992 and another 552293 dated 18.8.1993 were issued by the authorities of the Hospital. 7. In that view of the matter the learned Additional Sessions Judge issued notices to the Deputy superintendent of Sadar Hospital, Godda to disclose the name of the persons who filed the Death Certificate being No. 552285 dated 20.11.1992 and Death Certificate No. 552293 dated 18.8.1993 so that the action be initiated against the guilty persons for manufacturing false evidence by manipulating a public document. 8. Subsequently by order dated 13.12.1993 the learned Sessions Judge took cognizance of the offence under Section 344 of Code for adducing false evidence and a separate Misc. case being Misc. case No. 10 of 1993 was registered and notices to show cause were issued to the Deputy Superintendent of Sadar Hospital, Godda as well as the Public Prosecutor, Lakhan Mahato and the informant Israil Mian, as to why they should not be punished for manufacturing false evidence to mislead the Court. 9. Pursuant to the notices of show cause, separate show causes were filed by the Deputy Superintendent of Sadar Hospital, Godda the Public Prosecutor, Lakhan Mahato and the Informant Israil Mian. 10. Considering the show causes, the learned Sessions Judge by his impugned order dated 27.1.1994 accepted the show causes filed by the Deputy Superintendent of Sadar Hospital and of the Public Prosecutor and exonerated them. However, the learned Sessions Judge found the informant Israil Mian to be guilty for producing false . evidence in Court and thereby convicted him under Section 344 of the Code and sentenced him to pay fine of Rs. However, the learned Sessions Judge found the informant Israil Mian to be guilty for producing false . evidence in Court and thereby convicted him under Section 344 of the Code and sentenced him to pay fine of Rs. 500/- only. 11. The appellant has filed the present appeal against the aforesaid judgment and order dated 27.1.1994 passed by the Sessions Judge convicting and sentencing him as aforesaid. 12. Learned counsel for the appellant has contended that the learned IInd Additional Sessions Judge has committed grave error in law as well as on facts in convicting the appellant under Section 344 of the Code. It has been contended that the impugned order is without jurisdiction as Section 344 of the Code is not attracted in the facts and circumstances of the case and therefore, the whole procedure adopted by the Court below in convicting and sentencing the appellant is absolutely bad in law. It has further been contended that the learned Additional Sessions Judge has wrongly adopted two standards in considering the show cause filed by the appellant and other persons. It has also been contended that without examining the persons who were named in the show cause and merely on the basis of the show cause, no order of conviction and sentence could have been passed. It has further been contended that the Court below failed to follow the requirement of the procedure of summary trial, causing Serious prejudice to the appellant resulting in failure of justice. 13. In order to appreciate the contentions of the learned counsel for the appellant it is relevant and necessary to examine Section 344 of the Code which is quoted herein below : "Section 344. 13. In order to appreciate the contentions of the learned counsel for the appellant it is relevant and necessary to examine Section 344 of the Code which is quoted herein below : "Section 344. Summary procedure for trial for giving false evidence.--(1) If, at the time of delivery 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 the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, of satisfied that it necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, 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 for a term which may extend to three months, or to fine which may 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 this Court to make a complaint under Section 340 for the offence, where it does not choose to proceed under this section. (4) Where, after any action is Initiated under Sub-section (1), it is made to appear to the Court of Session or Magistrate of the first Class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub-Section has been expressed, it or he shall say further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision." 14. From plain reading of Section 344 of the Code it is clear that this Section gives special power to the Court of Sessions and the Magistrate of the First Class to take cognizance of an offence of forgery committed by witness in a proceeding before it. 15. From plain reading of Section 344 of the Code it is clear that this Section gives special power to the Court of Sessions and the Magistrate of the First Class to take cognizance of an offence of forgery committed by witness in a proceeding before it. 15. This power is to be exercised after having the matter considered by the Court only at the time of delivery of judgment or final order, the offence has to be given a reasonable opportunity of showing cause before he is punished. 16. For exercising the power under this Section, the Court, at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interest of justice the witness concerned should be punished summarily by it for the offence, which appears to have been committed by the witness The above conditions are mandatory in nature. 17. This Section has limited application. It applies to a witness appearing before the Court who has intentionally given false evidence or has intentionally fabricated false evidence for the purpose of being used in the proceeding before the Court. 18. The words "of any witness appearing in such proceeding" appearing in Section 344 of Code are to be construed strictly. From the language of this Section, it is clear that this section applies, only in case of a persons who gives false evidence by physically appearing in Court, therefore, the crucial point to be noticed in the Section is that it is only when a witness who appears before the Court and gives false evidence or fabricates such evidence can be proceeded against. This Section cannot be applied even if a person filing a sworn affidavit or a document in a Court because hie cannot be said to have appeared as witness. 19. This Section cannot be applied even if a person filing a sworn affidavit or a document in a Court because hie cannot be said to have appeared as witness. 19. Therefore, under this section this Court assumes jurisdiction only when a witness physically appears and gives false evidence or adduces false or manufactures document in that Court, intentionally to mislead the Court then only the said Court if he finds that the evidence is false or documents produced was forged and fabricated then he can proceed against that witness under Section 344 of the Code in accordance with the procedure provided in the said section. 20. In the present case from the facts which appears, that the learned IInd Additional Sessions Judge has exercised that jurisdiction envisaged under Section 344 of the Code against the informant, Israil Mian who allegedly produced a manufactured death certificate though the Public Prosecutor in Court. In fact, he did not appear as a witness before the learned Additional Sessions Judge. 21. That apart, the learned Additional Sessions Judge had not given any finding to the effect that it was necessary and expedient in the interest of justice that the witness should be tried for committing such offence. 22. Therefore, in my opinion, the mandatory conditions of Section-344 of the Code as discussed above were not at all fulfilled for proceeding against the appellant. The learned IInd Additional Sessions Judge has committed grave error of law in applying of Section 344 of the Code against the informant, Israil Mian and consequently convicting and sentencing him under the aforesaid provision as aforesaid. 23. In view of my discussions and findings above it is held that the order of conviction under Section 344 of the Code against the appellant was absolutely bad in law and is without jurisdiction. Consequently, this appeal is allowed and conviction and sentence passed against the appellant by the learned IInd Additional Sessions Judge, Godda is hereby set aside. 24. Since this appeal has been allowed on the very first point submitted by the learned counsel for appellant, hence it is not necessary to deal with other points submitted by the learned counsel for the appellant. 25. However, the learned IInd Additional Sessions Judge is at liberty to proceed against the informant, Israil Mian, under Section 340 of the Code in accordance with law.