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2005 DIGILAW 833 (JHR)

Alamat Ansari v. State of Jharkhand

2005-11-30

AMARESHWAR SAHAY

body2005
Order Heard Mr. Sah, learned counsel appearing for the petitioner and the learned A.P.P. 2. With the consent of the parties this application is being disposed of at the stage of admission itself. 3. This revision application has been filed against the order dated 20.8.2004 whereby the petition, filed by the petitioner under Section 245 Cr.P.C. for his discharge was rejected by the learned Judicial Magistrate, Godda. 4. The relevant facts in short are that one Salimuddin Ansari was tried for offence under Sections 323 and 376 of the Indian Penal Code by the Sessions Judge. Godda in Sessions Trial No. 90/2001. The case of the prosecution in the said Sessions Trial was that in the mid night of 7.12.2000 the prosecutrix was sleeping in her house by closing the doors from inside. Her husband was not in the house. She woke up on hearing the sound of opening the door and then she saw that the accused Salimuddin Ansari was there, who abused her in filthy language. On her protest the said accused Salimuddin Ansari caught hold of her, threw her on the ground and, thereafter, forcibly committed rape on her. On her alarm her 12 years old daughter came there and then on her alarm the witnesses came there. 5. The learned Sessions Judge found serious infirmity in the prosecution version, like abnormal delay in filing the complaint petition, truthfulness in the prosecution story and thereby acquitted the accused from the charges after a detailed discussion of the prosecution evidence holding that the prosecution totally failed to prove the charge against the accused. 6. It appears that before parting with the judgment the learned Sessions Judge made observation that the complainant/ prosecutrix, Jaibun Bibi either filed a false case of rape against the accused or she gave false evidence and, therefore, she should be prosecuted for bringing a false case against the accused. It was further observed by the Sessions Judge that PW1 Alamat Ansari also gave false evidence in the Court at the stage of trial or at the stage of enquiry under Section 202 Cr. PC. It was further observed by the Sessions Judge that PW1 Alamat Ansari also gave false evidence in the Court at the stage of trial or at the stage of enquiry under Section 202 Cr. PC. therefore, he should also be prosecuted for the offence of forgery and, accordingly, directed that a separate miscellaneous case be registered asking the petitioner, who appeared as PW-1 in the said Sessions Trial and also against the prosecutrix as to why they be not prosecuted for committing the offence under Sections 182 and 211 of the Indian Penal Code. 7. On the basis of the above facts, the petitioner and the prosecutrix are being prusecuted for the offence under Section 182 and 211 IPC for giving false evidence in the aforesaid Sessions Trial. 8. The petitioner thereafter, filed an application for discharge before the learned trial court, stating therein that either at the stage of enquiry under Section 202 Cr. PC. in the complaint filed by the prosecutrix or even at the stage of trial he never stated that he was an eye witness to the occurrence rather he was only a hearsay witness and in this view of the matter, no case against the petitioner was made out for the offence under Sections 182 and 211 of the I.P.C. and, therefore, the charge against him was groundless and, as such, he may be discharged. 9. Such prayer of petitioner has been rejected by the impugned order and hence this revision application. 10. The Supreme Court in the case of Santokh Singh vs. Izhar Hussain & Anr., reported in A.I.R. 1973 SC 2190 has held that the expression "falsely charges" does not mean giving false evidence as a prosecution witness against an accused persons during the course of a criminal trial. "To falsely charge" must refer, to the criminal accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial. The words "falsely charges" have to be read alongwith the expression "institution of criminal proceeding". 11. "To falsely charge" must refer, to the criminal accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial. The words "falsely charges" have to be read alongwith the expression "institution of criminal proceeding". 11. In view of the above proposition of law set out by the Supreme Court even if a witness makes an incorrect or false statement in support of the false charge that will not make out a case for the offence under Section 211 of the I.P.C. against that witness. In this view of the matter, the petitioner, who was only a wit ness in the trial it can be said that no case under Section 211 of the IPC is made out against the petitioner. 12. So far as the offence of Section 182 of the IPC is concerned the Supreme Court in the aforesaid decision has also held that every incorrect statement or false statement made by a witness does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances, when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Two frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution. 13. It appears that the learned Sessions Judge misunderstood the evidence of the petitioner and also failed to apply his mind to the question of expediency. The learned Sessions Judge also failed to appreciate that the petitioner deposed in the trial as a hearsay witness only, which was not a substantive evidence on the basis of which the accused could have been convicted. 14. In this view of the matter, the learned Sessions Judge has gravely erred in directing prosecution against the petitioner, who was only a witness in Sessions Trial. 15. In view of the discussions and findings above, this application is allowed. 14. In this view of the matter, the learned Sessions Judge has gravely erred in directing prosecution against the petitioner, who was only a witness in Sessions Trial. 15. In view of the discussions and findings above, this application is allowed. The impugned order of the court below dated 20.8.2004 refusing to discharge the petitioner for the offence under Sections 182 and 211 of the IPC is hereby set-aside and the petitioner is discharged.