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2004 DIGILAW 1155 (AP)

Md. Ibrahim v. State Of A. P.

2004-10-06

C.Y.SOMAYAJULU

body2004
O R D E R This petition is filed to quash the proceedings in STC No. 134 of 2004 on the file of the Court of II Additional Judicial Magistrate of First Class, Bheemavaram, West Godavari District. 2. On the basis of a common report made by the petitioners to him, the SI of Police, I Town PS, Bheemavaram, registered a case in Cr.No.219 of 2000 under Sections 420, 384, 506(2) IPC and after investigation, laid charge sheet against one Cheerala Venkatarathana Reddy, which was taken cognizance as C.C.No.47 of 2001 by the II Additional Judicial Magistrate of First Class, Bheemavaram. Petitioners, who were cited as PWs.1 to 7, in the said CC No.47 of 2001, did not support the prosecution case, and were treated as hostile witnesses and denied their having made statements as in Exs.P.2 to P.6 recorded by the police under Section 161 Cr.P.C. Learned Magistrate while disposing of the said C.C. observed as under: “Before parting with the Judgment, I am constrained to hold that PWs.1 to 7 being the public servants, working in the cadre of hostel Welfare Officers intentionally and knowingly gave false evidence on oath and it is most unbecoming conduct on their part. Due to unbecoming conduct of these witnesses a real culprit could escape from the clutches of law. Therefore, it is a fit case to prosecute PWs.1 to 7 for the offence punishable under Section 344(1) Cr PC with a view to eradicate the evils of perjury and in the interest of justice. Hence, a complaint for giving false evidence is taken cognizance of under Section 344(1) Cr PC against PWs.1 to 7, arraying them as the accused 1 to 7 by this Court. Office is directed to serve copy of complaint to the individuals” In pursuance of the same STC No.134 of 2004 is registered against the petitioners. As stated earlier, this petition is filed to quash the proceedings in the said STC. 3. The contention of Sri E.V. Bhagiratha Rao, the learned counsel for the petitioners is that since no show cause notice as mandated by Section 344(1) Cr PC, was issued by the learned Magistrate to the petitioners, proceedings in STC No. 134 of 2004 against the petitioners are liable to be quashed. 3. The contention of Sri E.V. Bhagiratha Rao, the learned counsel for the petitioners is that since no show cause notice as mandated by Section 344(1) Cr PC, was issued by the learned Magistrate to the petitioners, proceedings in STC No. 134 of 2004 against the petitioners are liable to be quashed. It is also his contention that since principles of natural justice that a complainant should not be a judge on his complaint, would be violated if the same Magistrate who passed the order takes cognizance of the offence, complained of by him, the learned Magistrate in fairness to the petitioners should have lodged the complaint before another Magistrate or should have followed the procedure prescribed by Section 195(1)(b)(4) Cr.P.C. In support of his contentions, he relied on PYDI LAXMANNA V. DUPALA KRISHNAMURTHY(1) GOTTIMUKKALA SURAYANARAYANA RAJU V. STATE(2) and MD. LBRAHIM V. B RAMARAO(3). His next contention is that since the statements under Section 161 Cr PC, are neither made on oath nor are signed by the -witnesses, and can be used only for contradictions as per Section 162 Cr.PC, the learned Magistrate was in error in launching prosecution against the petitioners on the premise that those statements, are true, and relied on JANARDHANAN VS. STATE OF KERALA(4), in support of the said contention. 4. Heard the learned Additional Public Prosecutor. 5. Since Section 344(1) Cr PC contemplates a summary procedure for convicting persons who committed perjury, and since Section 344(3) Cr.PC saves the power of the Court to order prosecution for perjury, it is clear that the trial Court before whom false evidence is given has two options open i.e., (i) follow the summary procedure prescribed under Section 344(1) Cr PC; or (ii) follow the procedure prescribed under Section 344(3) Cr PC and cause a complaint being filed under Section 340 Cr PC. In fact a Division Bench of Bombay High Court in BALSHIRAM RAMBHAU AWATE V. STATE OF MAHARASTRA(5), held that a trial Court which discovers perjury could take action summarily under Section 344(1) and punish the person who gave false evidence then and there, by holding a summary enquiry or can decide whether a regular complaint should be filed against such person. Since Cr P C itself makes a provision for the trial court trying a person who gives false evidence before it, the contention of the learned counsel for petitioners that the Court by acting as a complainant and Judge, would be violating principles of natural justice, cannot be accepted. 6. But there is force in the contention of the learned counsel for the petitioners that non-issuance of a show cause notice vitiates the proceedings Initiated by the trial Court, because Section 344(1) Cr PC mandates a show cause notice being given to the person concerned before punishing him by taking recourse to summary procedure. .In G.Suryanarayana Raju’s case (2 supra) relied on by the learned counsel for the petitioners, it is held that the intendment of the show cause notice is to divulge the prima facie opinion with regard to the offence being committed under Section 344(1) Cr PC, and to afford an opportunity to explain with regard to the allegations or charges leveled against the notices. Pydi Lakshmanna’s case (1 supra), relied on by the learned counsel for the petitioners is of no help in deciding this petition because in that case statement of witnesses under Section 164 Cr PC was recorded, which is not the case here. Similarly Md. lbrahim case (3 supra) also has no application to the facts of the case. 7. In Janardhanan’s case (4 supra) a Division Bench of Kerala High Court while considering the desirability of taking recourse to proceedings under Section 344(1) Cr PC on the basis that the witnesses did not stand by their statements recorded under Section 161 Cr PC held as follows. “Caution requires that the Court may not form such an opinion solely on the basis of the witness’s statement recorded under Section 161 Cr PC, for under the provisions of the Evidence Act, 1872, a former statement which does not amount to a statement sworn as evidence unless it falls under Section 32, can be proved only for two purposes, firstly, under Section 155 read with Section 145 of that Act, to contradict and thus to discredit the witness, and secondly, under Section 157 of that Act, to corroborate his testimony and thus to reinforce his evidence. Hardly can it be expected that a witness hauled up for trial for the offence of giving false evidence would take the witness stand to be contradicted by his former statement, and even if he does, and he is contradicted in that manner, that will take the prosecution neither here nor there, since contradiction by itself, though sufficient to discredit the witness, is no proof of the truth of the facts stated in his former statement. Therefore, where there is no material other than a statement recorded under Section 161 Cr PC, it will be unwise to initiate proceedings under Section 344 of that Code in that the same would only be an exercise in futility. The opinion that the Court expresses at the time of delivery of judgment or final order disposing off the judicial proceeding before it that a witness examined therein has knowingly or willfully given false evidence should not be a fanciful or capricious opinion but a discreet one founded on materials sufficient to sustain the charge of perjury. It should be remembered that a Court ought not get itself into such a plight as would make it a laughing stock which will be the result of an unsuccessful prosecution for perjury at its instance. The power under Section 344 Cr PC is something like a rod which should be sparingly used, as otherwise it is likely to defeat the very purpose of making false swearing an offence (that purpose being that no one shall thwart the endeavour of the Court to find out the truth in the matter of dispensation of justice) by making people averse to get involved in achieving that object”. 8. Since, mandatory requirement of issuing a show cause notice as contemplated under Section 344(1) Cr PC, was not followed by the learned Magistrate before registering S.T.C. against the petitioners, the proceedings in S.T.C. No. 134 of 2004 are liable to be and hence, are quashed, though the petitioners, who are government servants, had after having set the criminal law into motion by giving a report to police, unfortunately chose to act in a manner highly unbecoming of government servants by making mocker of criminal proceedings, with a hope that they would mend themselves and conduct themselves like responsible government servants in future. 9. The petition is accordingly allowed. --X—