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Allahabad High Court · body

2011 DIGILAW 2701 (ALL)

BARKAT AHMAD SIDDIQUI v. STATE OF U. P.

2011-11-30

SHRI KANT TRIPATHI

body2011
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard Mr. M. Islam for the petitioner and learned Additional Government Advocate for the State and perused the record. 2. The petitioner has filed the instant petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) for quashing the proceedings of Criminal Case No. 1814 of 1982, State v. Barkat Ahmad Siddiqui, pending int he Court of Special Chief Judicial Magistrate, Allahabad. 3. The petitioner was a witness in sessions trial No. 423/1980, State v. Anoop Kumar and was examined during the trial as PW-5. It is alleged that the petitioner was scribe of the written report, Exhibit ka-2, alleged to have been lodged by the complainant Jang Bahadur. The petitioner stated in the witness box that he was scribe of the report and had also signed the same but stated that he wrote down the report in the police station Kotwali on the dictation of Deewan and the complainant Jang Bahadur had not put up his signature on the report in his presence. The prosecution declared the petitioner hostile and with the leave of the Court subjected him to cross-examination. The learned Additional Sessions Judge, Court No. 2, Allahabad rendered the final judgment of 30.4.1982 convicting and sentencing the accused Anoop Kumar, the husband of the deceased Radha and father of other deceased Km. Ranjana, under Section 302 IPC to under go imprisonment for life. The criminal appeal No. 1120/1982 preferred by the accused Anoop Kumar has also been dismissed by a division bench of this Court on 3.4.2007. It may also be mentioned that the Additional Sessions Judge, Court No. 2, Allahabad while rendering the final judgment, found that the statement of the petitioner that he wrote the written report Ex.ka-2 on the dictation of the Deewan in the police station and the complainant Jang Bahadur had not signed the report in his presence, was false being contrary to his previous statement made before the Investigating Officer under Section 161 of the Code. Accordingly the learned Additional Sessions Judge directed the district Government counsel (Criminal)j to draft a complaint against the petitioner and other witnesses. On such direction the District Government Counsel (Criminal) drafted a complaint, which was signed by the Additional Sessions Judge and was filed in the Court of the Magistrate. 4. Accordingly the learned Additional Sessions Judge directed the district Government counsel (Criminal)j to draft a complaint against the petitioner and other witnesses. On such direction the District Government Counsel (Criminal) drafted a complaint, which was signed by the Additional Sessions Judge and was filed in the Court of the Magistrate. 4. The learned counsel for the petitioner submitted that the learned Additional Sessions Judge nowhere recorded the finding that it was just and expedient in the interest of justice to prosecute the petitioner nor he held an inquiry under Section 340 of the Code, therefore, he had no jurisdiction to file the complaint straightaway, without holding an inquiry under Section 340 of the Code and without arriving at the conclusion that it was just and expedient in the interest of justice to file the complaint against the petitioner. 5. Learned counsel for the petitioner further submitted that merely on account of the fact that the statement of the petitioner in the Court was contradictory to his previous statement, the learned Additional Sessions Judge was not justified to hold that the statement of the petitioner in the Court was false. It was next submitted that the whole of the contradictory part of the statement made by the petitioner under Section 161 of the Code was not put up to him during the cross-examination, therefore, he was not confronted with the previous statement and as such the previous statement could not be taken as the basis for holding that the statement in the Court was false. It was next submitted that the Investigating Officer was not examined during the trial to prove the statement of the petitioner recorded under Section 161 of the Code. 6. The learned AGA on the other hand submitted that the statement of the petitioner recorded during the trial being contrary to his previous statement recorded under Section 161 of the Code was apparently false, therefore, the petitioner by making such statement, committed the offence under Section 193 IPC. 7. In my opinion, the submissions of the counsel for the petitioner have sufficient merit. 7. In my opinion, the submissions of the counsel for the petitioner have sufficient merit. It is alleged that the petitioner had made previous statement under Section 161 of the Code that he wrote up the report according to the instructions of the complainant Jang Bahadur, who had put up his signature in his presence but during the trial he resiled from that statement and stated that the report was written on the direction of the Deewan in the police station and the complainant did not put up his signature in his presence. The Investigating Officer was not examined to prove the statement of the petitioner recorded by him under Section 161 of the Code. Despite that, the learned trial Court has cited the Investigating Officer Awadh Raj Singh SSI as one of the witnesses of the complaint. The previous statement of a witness recorded under Section 161 of the Code can be used to contradict his statement in the Court provided he is confronted with his previous statement as required by Section 145 of the Evidence Act and the same is proved during the trial. When the Investigating Officer was not examined during the trial how the statement of the petitioner recorded under Section 161 of the Code could be held to be proved. In absence of such a proof, the petitioner’s previous statement could not be treated as the basis for launching the prosecution against the petitioner. 8. Copy of the statement of the petitioner recorded during the trial has been filed as Annexure 1A. This witness was confronted with his following previous statement recorded under Section 161 of the Code: “MAINE JANG BAHADUR KE KAHNE PAR ...... PARANTU SAFAL NAHINHO SAKE HAIN” In the aforesaid portion of the statement recorded under Section 161 of the Code with which the petitioner was confronted, the petitioner had nowhere stated that the complainant Jang Bahadur had signed the report in his presence. He had further nowhere stated that the report was written on the dictation of Jang Bahadur. PARANTU SAFAL NAHINHO SAKE HAIN” In the aforesaid portion of the statement recorded under Section 161 of the Code with which the petitioner was confronted, the petitioner had nowhere stated that the complainant Jang Bahadur had signed the report in his presence. He had further nowhere stated that the report was written on the dictation of Jang Bahadur. Moreover, the aforesaid quoted portion of the statement of the petitioner clearly indicates that a vague portion was referred to the petitioner, who denied to have made the aforesaid statement to the Investigating Officer, therefore, it was necessary for the State to prove his previous statement by examining the Investigating Officer but it was not done, therefore, the statement recorded under Section 161 of the Code was not relevant at all. 9. If a person makes contradictory statements at different stages, his statement in the Court cannot, on the basis of previous contradictory statement, be treated as false only on that ground. It is further required from the Court to see as to which of the statement was false. Ordinarily, the statement made on oath is presumed to be true unless contrary is proved, therefore, the Additional Sessions Judge was not justified in holding the petitioner’s statement in the Court as false only on the basis of his previous statement recorded under Section 161 of the Code, which was neither properly proved nor was put up to the petitioner during the trial. The learned Additional Sessions Judge was further required to ascertain as to whether the statement in the Court was false and if it was so, then, on what basis. The learned Additional Sessions Judge should have collected relevant materials on this point to arrive at the conclusion that in fact the petitioner wrote up the FIR on the dictation of Jang Bahadur but he made a false statement in the Court. 10. It is also well settled that no statement of a witness can be treated to be false evidence within the meaning of Section 193 IPC unless it is proved that the false statement was deliberate and intentional. This proposition has been held by the Apex Court in the case of S.P. Kohli v. High Court of Punjab & Hariyana, AIR 1978 SC 1753 . Para 16 of the judgment being relevant is reproduced as follows: “All this apart, the impugned order cannot be sustained for another reason. This proposition has been held by the Apex Court in the case of S.P. Kohli v. High Court of Punjab & Hariyana, AIR 1978 SC 1753 . Para 16 of the judgment being relevant is reproduced as follows: “All this apart, the impugned order cannot be sustained for another reason. It is now well settled that prosecution for perjury should be sanctioned by Courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well recognised that there must be a prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. (See Chajoo Ram v. Radhey Shyam and another. In the present case, as the examination of smegma lost all importance after the lapse of 24 hours of the performance of the alleged sexual intercourse as shown above, the aforesaid statement of the appellant was, in our judgment, not on a matter of substance and the appellant does not appear to have made any false statement with a mala fide intention. In the circumstances, we do not think that any useful purpose will be served by subjecting the appellant to a lengthy vexatious and expensive trial which is not likely to end in his conviction.” 11. In the case of B.K. Gupta v. Damodar H. Bajaj and others, 2001 (1) U.P. Crl Ruling 380, the Apex Court propounded the principle that the Court filing a complaint must record the finding that it was expedient in the interest of justice to make an inquiry and file a complaint. But the learned Additional Sessions Judge has not made any such observation. Moreso, the learned Additional Sessions Judge did not invoke the provisions of Section 340 of the Code before launching the prosecution against the petitioner. The offence alleged to have been committed by the petitioner is an offence referred to in clause (b) of sub-section (1) of Section 195 of the Code committed in a judicial proceeding of the Court of Additional Sessions Judge, Court No. 2, Allahabad. The offence alleged to have been committed by the petitioner is an offence referred to in clause (b) of sub-section (1) of Section 195 of the Code committed in a judicial proceeding of the Court of Additional Sessions Judge, Court No. 2, Allahabad. Therefore, it was necessary for the Additional Sessions Judge to hold an inquiry under Section 340 of the Code and record a specific finding but in the present matter the Additional Sessions Judge instead of holding an inquiry under Section 340 of the Code, filed the complaint straightaway, which was not proper in view of the mandatory provisions of Section 340 of the Code. For the reasons stated above, the petition is allowed. The proceedings of the aforesaid criminal case are quashed. ——————