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2011 DIGILAW 1163 (PAT)

Shambhu Prasad @ Shambhu Lal v. State of Bihar

2011-06-22

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ORDER This appeal has been filed under Section 341 of the Code of Criminal Procedure on account of a finding which has been recorded by the learned 1st Additional Sessions Judge-cum-Special Judge, Nawadah, in Special(H) Case No.1 of 2009. The finding prompting the filing of the present appeal, has been recorded in paragraph 14 of the impugned judgment which reads as under: "In this case accused Shambhu Prasad had filed a petition u/s 340 Cr.P.C. for lodging a case against the complainant and responsible police officer. In this respect I have to say that as I have held above that Mamta Devi alias Meena Devi is not a fake lady and if any police officer made a defective or collusive investigation against the accused then he may file a petition before a higher police authority. The petitioner Shambhu Prasad has also option that he may file a case of malice prosecution against the responsible persons. I do not think to initiate the proceeding u/s 340 Cr. PC. against the complainant and others." 2. The contention was that on the very finding recorded by the learned trial Judge as regards the evidence of RW the prosecutrix, it was apparently clear that she was even denying recording of her statement under Section 164 Cr. P.C. which at least could have convinced the learned trial Judge to at least issue a notice to the informant lady Meena Devi (P.W.2) as to why an enquiry should not be held as against her in indulging in perjury by making false statement on oath. The contention was that the lady P.W. 2 was going lock, stock and barrel in making false statement and, thus, was perjuring on oath when she was going to the extent of making statement that she was neither produced before a medical man nor was she examined medically by any one. The contention was that by virtue of Section 340 Cr. P.C., the Court was required to hold an inquiry on the aspect of commission of an offence in relation to above noted Special(H) case No.1 of 2009 as regards the evidence of P. W. 2 Meena Devi alias Mamta Devi. The contention was that by virtue of Section 340 Cr. P.C., the Court was required to hold an inquiry on the aspect of commission of an offence in relation to above noted Special(H) case No.1 of 2009 as regards the evidence of P. W. 2 Meena Devi alias Mamta Devi. It was contended that without holding an inquiry as was envisaged by Section 340 Cr.P.C., the learned trial Judge was rejecting the petition in one line that he was not inclined to initiate the proceeding under Section 340 Cr.P.C. against the complainant and others, though a finding was recorded indicating that a maliciously false case had been filed against the appellant. Section 340 Cr. P.C. reads as under: "340. Procedure in cases mentioned in section 195.-(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of subsection(1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section(1) in respect of an offence may in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of subsection(4) of Section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such Officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this section, "Court" has the same meaning as in section 195:' 3. A perusal of the above provision may indicate that on an application made before any court, if it is satisfied that an offence appeal s committed as described in Section 195(1)(b) Cr.P.C. which in opinion of the court may make it expedient as also in the interest of justice to hold an inquiry, that court may initiate an inquiry. It further appears from the reading of the above provision that any offence mentioned in Section 195(1)(b) Cr. P.C. might appear committed on account of the evidence adduced in or in relation to the proceeding pending before the court and that evidence may be due to the production of the documentary evidence also. What appears further is that there could not be any particular stage of the proceeding which could be pending before the court that a court could initiate an inquiry under Section 340 Cr.P.C. rather the language of the provision indicates that the inquiry might be initiated in spite of the conclusion of the proceeding which may be a full-fledged trial as in the present case. 4. When I was considering the discussion of the evidence of the proseclutrix, P.W.2 Meena Devi alias Mamta Devi, in paragraph 8 of the impugned judgment dated 21.4.2011, I came across the findings noted down by the learned trial Judge that the lady witness had deposed that she did not know anything about the occurrence and that she had never given any statement under Section 164 Cr. P.C. nor had she put her L.T.I. on any such statement. This could be simply futile to point out that a statement under Section 164 Cr. P.C. is recorded by a Magistrate and carries its own authenticity of being a true statement made by a persons before a Judicial Magistrate knowing fully well that the authority before whom the statement was given was a Judicial Magistrate and further that the statement was recorded as a part of investigation but on the Judicial side of it. P.C. is recorded by a Magistrate and carries its own authenticity of being a true statement made by a persons before a Judicial Magistrate knowing fully well that the authority before whom the statement was given was a Judicial Magistrate and further that the statement was recorded as a part of investigation but on the Judicial side of it. It is true that the Judicial Magistrate was not examined by the prosecution during the trial of the above noted case before the Special Judge, Nawadah, but when one considers Section 35 of the Evidence Act one may find that on account of being the record as regards the performance of the duties of a public servant enjoined upon him to be performed under the law of the land, it was the relevant fact and, as such, admissible in evidence and could be considered even if the Magistrate was not produced nor was examined. 5. The other aspect which has engaged the attention of this Court is that the lady had travelled to such a long distance in perjuring herself that she was even castigating before the court the medical examination report. My memory discloses a judgment rendered by the Supreme Court in Om Prakash Kumar Vs. State of Himachal Pradesh reported in 1974 Cr. L.J.556 in which the Supreme Court was holding that the medical report was an admissible piece of evidence under Section 35 of the Evidence Act even without examination of the medical man. The learned trial Judge appears not keeping-these aspects of the matter in his mind while he was summarily rejecting the petition under Section-340 Cr. RC. filed before him though he was recording that the appellant may file a case for being maliciously prosecuted. It was desirable that the learned trial Judge ought to have paid his attention to the above aspects of the matter while he was sitting up to write down the judgment in question. 6. The courts have been really concerned about the rising trend of witnesses initially filing serious cases against persons due to which any person has to languish in prison for quite some times and the same person coming forward to the witness box to be administered oath when they make rank false statement. The Judges of the lower courts have been found remaining mute spectators and allowing such incidents occurring in their view and in their presence. The Judges of the lower courts have been found remaining mute spectators and allowing such incidents occurring in their view and in their presence. There are provisions in the Cr.P.C. which take care of such situation when any act of perjury is committed by anyone in view of the court or in its presence that the Judge could proceed summarily to deal with such situations. That is not being done. Which appeared most disturbing to this Court was that the lady was giving false statement on oath castigating the records of a Judicial Magistrate made after due recording of the statement under proper direction of Section 164 Cr.P.C. There could be little doubt about it that unless Meena Devi alias Mamta Devi had made the statement of the class and nature as was made under Section 164 Cr.P.C. no Judicial Officer had noted it down certifying that he had recorded the statement as per the provision of Section 164 Cr.P.C. This was the minimum the court was expected to appreciate and it ought to have made an inquiry by putting such questions himself to the witness so as to judging as to what was the degree of. perjury the lady was indulging into. It was not only the mere act of perjury but it was also a case which was undermining the authority of the Judge or the purity of our judicial system. The Court is concerned the petition under Section 340 Cr. P.C. was negated. 7. There could not have any doubt that the learned trial Judge could have disposed of the petition under Section 340 Cr. P.C. through his judgment also but from some of the aspects which have been noted by the learned trial Judge in the relevant paragraph which I have just extracted, that petition appears disposed of in a summary manner. The Judge was more concerned about the responsibility of the police Officer while delivering judgment. He was writing that the complaint which was to be lodged by the court after holding an inquiry under Section 340 Cr.P.C. may be against some responsible Police Officers. Responsibility is carried by all public officers, but that responsibility is never to be considered if such Officer is found creating allegation on facts or fabrication of some of the documents implicating innocent persons. Responsibility is carried by all public officers, but that responsibility is never to be considered if such Officer is found creating allegation on facts or fabrication of some of the documents implicating innocent persons. If the court could be concerned about the responsibility of the Police Officer, it has to be more concerned to ensure that an innocent person was not harassed. The issue required some inquiry, deep on it, after giving notice suo motu by the court and there was no necessity for anyone to file a petition under Section 340 Cr. P.C. 8. It is, as such, hereby, directed that the learned trial Judge shall issue a notice to P. W. 2 Meena Devi alias Mamta Devi and all concerned, to appear before him and to show cause on holding an enquiry and filing of a complaint, in the light of the evidence available on record. After considering the show cause, ,if it is convinced that any Offence appeared committed in or in relation to the evidence adduced in that proceedings which required the filing of a complaint as envisaged by Section 195(i) Cr.P.C. for eradicating the commission of such offence or offences in future, it shall file the complaint. 9. In the result, this appeal is disposed of in the terms as indicated above, at the admission stage itself.