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2012 DIGILAW 358 (PAT)

Vindeshwari Pd. Sah v. State of Bihar

2012-02-28

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
JUDGMENT Ashwani Kumar Singh, J. The appellant has filed the present appeal under Section 341 of the Code of Criminal Procedure whereby he seeks direction for withdrawal of Complaint Case No. CII-07 of 2011 which was filed in terms of Section 195 read with Section 340 of the Code of Criminal Procedure by the learned Sessions Judge. Madhepura in which cognizance of the offence under Section 193 of the Indian Penal Code has been taken by order dated 7.7.2011 by the learned Chief Judicial Magistrate, Madhepura which is presently pending in the Court of Mr. Avinash Sharma, the learned Judicial Magistrate, 1st Class, Madhepura. The present appeal was admitted by order dated 11.8.2011 by this Court. 2. It is contended on behalf of the appellant that while the appellant was posted as a Medical Officer at Kumar Khand Primary Health Centre on 16.6.2000 at about 10 a.m. an injured Muneshwar Rai son of late Jamum Rai was brought in the Primary Health Centre for treatment as he had sustained injury by arrow. A metallic• arrow injury penetrating the lower abdomen on left side leading to peritonitis besides some bruises on the person of the injured was found. On the person of the injured, the arrow injury was found to be grievous in nature. 3. It appears that the injured had instituted a police case in which pursuant to investigation charge-sheet was submitted and the learned Magistrate after taking cognizance of the offence committed the case to the Court of sessions for trial since the charge was under Section 307 of the Indian Penal Code. In the said trial the appellant was examined as PW 4 on 17th May, 2008 before the learned Additional Sessions Judge, FTC-V, Madhepura. The appellant described the injuries in his examination-in-chief as was noted in the injury report issued by him. He had clearly stated in his deposition that injury No. 1 was grievous in nature and was dangerous to life. He had also stated that the said injury might have been caused by a metallic arrow. The appellant was cross-examined by the defence. In cross-examination it appears that a question was put to him as to whether such injury was possible due to fall on some pointed object. The appellant answered the question in affirmative. He had also stated that the said injury might have been caused by a metallic arrow. The appellant was cross-examined by the defence. In cross-examination it appears that a question was put to him as to whether such injury was possible due to fall on some pointed object. The appellant answered the question in affirmative. In other words he replied that such injury may also be possible due to fall on some pointed weapon or object. The trial court on the basis of evidence available on record convicted the accused persons in the said sessions trial. By judgment and order dated 24.12.2010 and 27.12.2010 respectively they were convicted and sentenced to undergo rigorous imprisonment for five years each under Section 307/34 of the Indian Penal Code. One of the convict namely Sheikh Manir filed Cr. Appeal (SJ) No. 183 of 2011 before this Court. While admitting the said appeal by order dated 27.4.2011, a Bench of this Court referring to the deposition of PW 4 in course of trial directed the court below to hold an enquiry under Section 340 of the Code of Criminal Procedure and file a complaint for giving false evidence on oath against PW 4, the present appellant. After receipt of the said order dated 27.4.2011, the learned Sessions Judge, Madhepura issued a notice in terms of Section 340 of the Code of Criminal Procedure to the appellant to show cause as to why he may not be prosecuted for giving false evidence. On receipt of show cause notice the appellant filed an explanation to the show cause notice before the learned District and Sessions Judge, Madhepura on 22.6.2011 stating therein that he had not stated that injury No. 1 was possible by fall on sharp cutting weapon as understood by the Court but he had stated that the same may be possible by fall on sharp pointed weapon. He had also• stated that arrow is a sharp pointed weapon and thus he had not made any false statement while deposing in Court. The appellant, thus, prayed that his explanation to the show cause notice may be accepted and the enquiry proceeding in terms of Section 340 of the Cr PC may be dropped. The learned Sessions Judge, Madhepura thereafter by order dated 6.7.2011 passed in Cri. Misc. The appellant, thus, prayed that his explanation to the show cause notice may be accepted and the enquiry proceeding in terms of Section 340 of the Cr PC may be dropped. The learned Sessions Judge, Madhepura thereafter by order dated 6.7.2011 passed in Cri. Misc. Case No. 11 of 20 11 found a prima facie case to be made out against the appellant under Section 193 of the Indian Penal Code and, thus, directed a complaint to be prepared and filed in the Court of Chief Judicial Magistrate, Madhepura. Upon such complain being filed the Chief Judicial Magistrate, Madhepura by order dated 7.7.2011 took cognizance of the offence under Section 193 of the Indian Penal Code and summoned the appellant for his appearance. 4. We may note it here that while passing the order dated 6.7.2011 the learned Sessions Judge, Madhepura has recorded that when the doctor (appellant) found the arrow in the body of the injured, the injury was caused only by arrow and it was not possible due to fall on a pointed article and, as such, the appellant was guilty of giving a wrong and false evidence in Court making him liable to face prosecution for the offence punishable under Section 193 of the Indian Penal Code. 5. Section 193 of the Indian Penal Code, prescribes punishment for intentionally giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose being used in any stage of a judicial proceeding. Sections 191 and 192 of the Indian Penal Code explain giving and fabricating false evidence which reads as follows :- "Sec.191. Giving false evidence.-Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false and which he either knows or believes to be false or does not believe to be true, is said to give false evidence." "Section 192. Fabricating false evidence.-Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic• record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement so appearing in evidence may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence"." 6. We find from the evidence of PW 4 that he neither gave any false evidence nor fabricated any false evidence in course of his deposition in Court. He had clearly narrated all the injuries sustained by the injured in his examination-in-chief. He had stated that he found intact metallic arrow injury penetrating the gut at three sides leading to peritonitis. In cross-examination when a question was put to, him by the defence he simply answered that such injury could also be possible on account of fall on some sharp pointed article/weapon. The doctor is an expert. His opinion is an opinion of expert. An identical injury may be possible in different circumstance by different weapon. What we find surprising here is that the appellant had simply stated that such injury may also be possible due to fall on some sharp pointed weapon. An arrow is a sharp pointed weapon. Therefore, there is no ambiguity in the deposition of the appellant. He has neither made any intentional false statement nor is guilty of fabricating false evidence. He has only rendered an expert opinion. 7. We may note here that Section 340 of the Code of Criminal Procedure provides the procedure for the offence enumerated in Section 195(1)(b). Section 195(1)(b) is one of the exceptions to the general rule that any person can lodge complaint of an offence when an offence is committed in relation to a public servant. As per Section 195(1)(a) sanction of the public servant must be obtained before, taking cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code. When offence is related to a Court the sanction of the Court should be obtained first. As per Section 195(1)(a) sanction of the public servant must be obtained before, taking cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code. When offence is related to a Court the sanction of the Court should be obtained first. Where the offence is not included in Section 195, Cr PC, a notice under Section 340 of the Code of Criminal Procedure for institution of an enquiry is not legal. The Court can initiate a proceeding under Section 340. Cr PC only for the offences mentioned in Section 195. Cr PC. There must be direct evidence fixing culpability on the accused persons. Prima facie case of deliberate falsehood and reasonable probability of conviction. For initiating a proceeding under Section 340 of the Cr PC, a complaint should be instituted only in those cases where perjury appears to be deliberate. It has repeatedly been held that to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful materials defeat the very end. Some inaccuracy in a statement, which may be innocent or inadvertent or immaterial may not justify a prosecution in the interest of justice. It is well settled that the proceeding under Section 340 of the Cr PC should not be instituted as a matter of course, even where the witness has given contradictory evidence. Every incorrect or wrong statement does not make it incumbent on the Court to order for prosecution. The Hon'ble Apex Court in a case of Shabir Hussain Bholu v. State of Maharashtra, since reported in AIR 1963 SC 816 , Chajoo Ram v. Radhe Shyam, since reported in AIR 1971 SC 1367 , and Iqbal Singh Marwah v. Meenakshi Marwah. since reported in (2005) 4 SCC 370 has clearly held that the Court must be satisfied that there is a prima facie case of deliberate falsehood on a matter of substance and there is a reasonable foundation for the charge and also it is expedient in the interest of justice to file a complaint. 8. We, thus, find that omission to record a finding that it is expedient in the interest of justice to make a compliant is not curable but goes to the root of the matter. 8. We, thus, find that omission to record a finding that it is expedient in the interest of justice to make a compliant is not curable but goes to the root of the matter. In a direction to lodge a criminal complaint for the offence under Section 193 of the Indian Penal Code finding in the order that lodging of the complaint was expedient in the interest of justice is essential. The Court must also form an opinion that the person charged has intentionally given false evidence and such formation of opinion must be on consideration of materials duly placed. Unfortunately, in the present case as discussed above, we find that before lodging a complaint the learned District and Sessions Judge. Madhepura neither recorded a finding that it is expedient in the interest of justice to lodge a complaint nor he recorded that the appellant had given false evidence much, less intentionally. Recording of such falsification by the Sessions Judge before lodging the complaint was imperative. We are of the view that in the facts and circumstances of the case as enumerated above there was no material on the basis of which it could have been recorded that the appellant gave any false evidence much less intentionally gave false evidence in a judicial proceeding. The appellant is aggrieved by the order by which the complaint has been filed against him as also by the prosecution report sent by the District and Sessions Judge, Madhepura pursuant to which cognizance of the offence punishable under Section 193 of the Indian Penal Code has been taken by learned Chief Judicial Magistrate, Madhepura by his order dated 7.7.2011 passed in Complaint Case No. 7 of 2011. 9. We are of the view that in the background of the facts stated above allowing the prosecution to continue would be an abuse of process of the Court. Allowing such a prosecution to continue will neither be expedient in the interest of justice nor will serve any fruitful purpose. 10. Having heard the parties and having considered the materials on record we are of the view that the appeal in terms of Section 341 of the Code of Criminal Procedure must be allowed. We, therefore, set aside the order dated 6.7.2011 passed in Cri. Misc. 10. Having heard the parties and having considered the materials on record we are of the view that the appeal in terms of Section 341 of the Code of Criminal Procedure must be allowed. We, therefore, set aside the order dated 6.7.2011 passed in Cri. Misc. Case No. 11 of 2011 by the learned Sessions Judge, Madhepura whereby he directed his office to file a complaint in the Court of Chief Judicial Magistrate, Madhepura and the order dated 7.7.2011 passed in Complaint Case No.7 of 2011 by the learned Chief Judicial Magistrate, Madhepura whereby he took cognizance of the offence under Section 193 of the Indian Penal Code and summoned the appellant. We also direct the learned Sessions Judge. Madhepura to withdraw the Complaint Case No 7 of 20 11 presently pending in the Court of Mr. Avinash Sharma, the learned Judicial Magistrate, 1 st Class, Madhepura. Navaniti Prasad Singh, J.-I agree. Decided accordingly.