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2009 DIGILAW 578 (MP)

MEERA BAI v. STATE OF M P

2009-04-30

RAKESH SAKSENA

body2009
Judgment ( 1. ) APPELLANTS have filed this appeal under Section341 of the Code of Criminal Procedure against the Criminal Complaint No. 1716/2007, filed by the Special Judge , SC/st (Prevention of Atrocities) Act, Panna against them under Section 340 of the Code of Criminal Procedure seeking their punishment under Sections 195 and 211 of the Indian Penal Code for giving false evidence in Special Sessions Trial No. 3/2006. ( 2. ) ON the report lodged by appellant Meerabai an offence under Section 376 (1)of the Indian Penal Code and Section 3 (2) (5) of SC/st (Prevention of Atrocities)Act was registered against Khillu @ Khilawan and under Sections 201, 193 of the Indian Penal Code and Section 3 (2) (6) of the SC/st (Prevention of Atrocities)Act against accused Ram Vishwash and Omprakash. ( 3. ) COMPLAINANT/appellant Meerabai lodged the report on 18. 6. 2002 with the police that on 16. 6. 2002, accused Khillu committed rape on her. In the course of investigation, Meerabai submitted an affidavit on 1. 7. 2002 stating that Khillu did not commit rape and she had lodged the report under acute excitement and infuriation. On the same day she submitted a similar application also to the police. On 18. 7. 2002 and 20th August, 2002, again she made an application to the superintendent of Police, Panna that accused persons obtained her signatures forcibly on some blank papers by extending threats to her. On investigation by the police, the allegation of rape as well as the report lodged by her against Khillu was found false, accordingly, a final report was submitted by police. ( 4. ) ON 7. 10. 2002, complainant Meerabai filed a private complaint in the Court of Chief Judicial Magistrate, Panna making allegation of rape against Khillu. Chief judicial Magistrate called the report from the concerned police. Sub Divisional officer, Police Panna submitted report that the first information report lodged by the complainant was false. Learned Magistrate recorded the statement of Meera bai wherein she made allegations against the accused persons of commission of the offence. Learned Magistrate took cognizance and after recording the evidence committed the case to the court of Special Judge for the trial. ( 5. ) BEFORE the trial Court, in Sessions Trial No. 3/2006, Meera Bai and her husband Balare gave evidence against the accused persons. Learned Magistrate took cognizance and after recording the evidence committed the case to the court of Special Judge for the trial. ( 5. ) BEFORE the trial Court, in Sessions Trial No. 3/2006, Meera Bai and her husband Balare gave evidence against the accused persons. They also stated that the accused persons had obtained their signatures on the affidavits under threat. Trial court after appreciation of the evidence came to conclusion that the story of rape was concocted and false and the complainant had filed false complaint in the court of Magistrate and acquitted the accused on 23. 8. 2007. Learned trial judge then filed a complaint against Meera Bai and her husband Balare under Section 340 of the Code of Criminal Procedure for getting them punished for the offence under Sections 195 and 211 of the Indian Penal Code. ( 6. ) LEARNED Magistrate after taking into consideration the judgment dated 23. 8. 2007 passed by the Special Judge in the Special Case No, 3/2006, took cognizance of the offence under Section 195 of the Indian Penal Code and summoned the appellants. ( 7. ) AGGRIEVED by filing of the complaint, the complainant (appellant) viz. Meera bai and her husband Balare filed this appeal under Section 341 of the Code of criminal Procedure. ( 8. ) LEARNED counsel for the appellants submitted that before filing the complaint, learned trial Judge ought to have made a preliminary enquiry as to whether a prima facie case was made out for filing a complaint against the appellants. It was necessary that this enquiry should have been made before filing the complaint. Since no such enquiry was made by the trial Court, filing of the complaint by it was illegal. He placed reliance in the case of Vittappan Vs. State -1987 CRI. L. J. 1994 a judgment of the Kerala High Court. ( 9. ) LEARNED Panel Lawyer for the State, on the other hand, justified the fling of the compliant on the ground that the trial Court in its judgment gave clear finding that the complainant and the prosecution witness Balare had no faith in truth and they had given false evidence in the Court. ( 10. ) IN the case of Vittappan (supra) it has been observed that: "8. The provisions of S. 340 are more or less procedural. ( 10. ) IN the case of Vittappan (supra) it has been observed that: "8. The provisions of S. 340 are more or less procedural. Before directing a complaint to be lodged the court must form an opinion on being satisfied and come to the conclusion on such satisfaction that the person charged has intentionally given false evidence and that for the eradiation of the evils of perjury and in the interest of justice it is expedient that he should be prosecuted. The opinion must be formed at the time or before delivering the judgment. It may also be advantageous to consider whether there was mens rea in giving the false evidence. If there is any doubt in the mind of the court in respect of the bona fides of the defence of the person exercise of the power may not be justified. Bibhuti Bhusan Basu v. Corporation of Calcutta. 1982 Cri. LJ. 909 (Cal.)" ( 11. ) ON perusal of the record, I find that except recording the finding that the prosecution witnesses (appellants) gave false evidence, trial Court did not go into the question whether it was expedient that they should be prosecuted. The enquiry as contemplated in Section 340 of the Code of Criminal Procedure is an enquiry by the trial Court itself for reassuring that the offence which appears to have been committed is in or in relation to the proceeding in that Court. Recording a finding by the trial Court regarding commission of the offence is a condition precedent to the prosecution. Some times, in many cases lack of truthfulness may be noticed in the evidence of witnesses, but it would not call for their prosecution in all the cases. It must be a prima facie case of deliberate falsehood and the Court must be satisfied that there is reasonable foundation for the charge. ( 12. ) IN my opinion, in the instant case, since the trial Court did not keep in mind the aforesaid aspect of the matter, filing of complaint was not called for. ( 13. ) FOR the foregoing reasons, I am of the opinion that the Complaint No. 1716/ 2007, filed by the Special Judge, SC/st (Prevention of Atrocities) Act, Panna in the court of Chief Judicial Magistrate, Panna deserves to be withdrawn. Accordingly, this appeal is allowed and the Special Judge is directed to withdraw the complaint. Appeal allowed.