JUDGMENT 1. - By this misc. petition, notice dated 15.12.2001 has been challenged. 2. It is contended by learned counsel. for the petitioner that by invoking the provisions of section 344 Cr.P.C. notice has been issued to the petitioner. Challenging the legality and validity of the notice, it is contended that a notice under Section 344 Cr.P.C. can be issued only when a competent court, while delivering the judgment or final order disposing any judicial proceedings, expresses an opinion to the effect that any witness appearing in such proceedings had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceedings. Referring to the aforesaid provision it is contended that while delivering the final judgment acquitting the accused therein, no opinion was formed by the court to show that false evidence was given or fabricated by the petitioner. In view of above arguments, prayer of the learned counsel for the petitioner is to quash the notice given herein. 3. Learned P.P. opposed the petition and submits that the petitioner is the initiator of the case but did not cooperate the prosecution while his statement was recorded and he made statement favourable to the accused so as to benefit him, thus, proceedings against the petitioner under Section 344 Cr.PC. have rightly been initiated by the court below. 4. I have considered rival submissions of learned counsel for the parties and perused the record. 5. Bare reading of provision of section 344 Cr.PC. shows that notice under the aforesaid provision can be issued by the court of Session or Magistrate of First Class if, at the time of delivery of any judgment or final order disposing of any judicial proceeding, expresses an opinion to the effect that any judicial proceeding, expresses an opinion to the effect that any witness appearing in such proceedings had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceedings then on being satisfied that it is necessary and expedient in the interest of justice the witness should be tried summarily for giving or fabricating false evidence, take cognizance of offence. Since perusal of the order passed in trial does not show that any opinion of the nature indicated under Section 344 Cr.PC. Since perusal of the order passed in trial does not show that any opinion of the nature indicated under Section 344 Cr.PC. was formed, hence, issuance of notice under the aforesaid provision is not sustainable in absence of an opinion in the order of acquittal. In view of aforesaid; so far as issuance of notice dated 15.12.2001 in the present case is concerned, being in contravention to the provision of section 344 Cr.P.C., it is set aside. The petition stands allowed.Petition Allowed. *******