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2017 DIGILAW 954 (HP)

Court on its own motion v. Bakshi Ram

2017-08-22

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Respondent Bakshi Ram (PW-6) is one of the witnesses in Sessions Trial No.51 of 2010 having arisen out of FIR No.143/10, registered in Police Station, Balh, District Mandi, H.P. against one Arun Kumar on 26.4.2010, under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Accused Arun Kumar was convicted by learned Special Judge, Mandi, District Mandi vide judgment dated 17.4.2015. In Criminal Appeal No.181 of 2015, preferred by the accused-convict, though the findings of conviction recorded against him was affirmed by us, however, he was sentenced to the imprisonment, he had already undergone and the fine was also reduced to Rs.10,000/- from Rs.1,00,000/- vide judgment dated 21.10.2016. At the same time, we also formed an opinion that the respondent herein has deposed falsely while in the witness-box as PW-6 to the reasons best known to him. He, as such, prima facie, was found to have committed an offence within the meaning of Section 193 of the Indian Penal Code. We also deemed it appropriate to make a complaint in writing to the Magistrate having jurisdiction over the matter, in terms of the provisions contained under Section 340 of the Code of Criminal Procedure against the respondent, after holding preliminary inquiry in the matter and affording an opportunity of being heard to him. We have dealt with this aspect of the matter in our judgment passed in the main appeal as under: “12.……………..PW-6 Bakshi Ram is the conductor of the bus, whereas, Hari Singh was its driver. As per prosecution case which even has been admitted by the convict also while answering question No. 3 in his statement recorded under Section 313 of the Code of Criminal Procedure, the bus reached at village Nagchala where the police had laid the ‘nakka’ at 4.15 p.m. No doubt, PW-6 Bakshi Ram who has been associated as an independent witness has stated that the bus reached at the place of ‘nakka’ i.e. Nagchala at 4.00 p.m., however, when he had already issued the ticket to the convict at 16:07:37 hours (04:07:37 pm) well before the arrival of the bus at Nagchala, as is apparent from the xeroxed copy of the original ticket Ext. PA allowed to be placed on record by learned defence counsel, how the bus could have reached at Nagchala at 4.00 p.m. The ticket has been recovered from the convict vide memo Ext. PW-6/C. PW-6 though has denied this aspect of the prosecution case, however, in the same breath when he has admitted that ticket Ext. PA was issued by him, his testimony to the contrary is absolutely false. It would not be improper to conclude that he has deposed falsely in connivance with the convict may be for some extraneous considerations. The bus was fully packed because as per admitted case of the parties on both sides, some passengers were even standing also in the bus. The prosecution case that during the checking of the bus the convict occupying seat No. 36 was found to be holding a bag on his legs find support from the documentary evidence such as seizure memo Ext. PW-6/A and the rukka Ext. PW- 7/A. Such version even finds corroboration from the testimony of PW-1 HC Kamal Kant and the I.O. PW-9. The seizure memo Ext. PW-6/A and other documents such as Ext. PW-6/B, Ext. PW-6/C and Ext. PW-6/D bear signature of Hari Singh, the driver of the bus and its conductor Bakshi Ram PW-6. Bakshi Ram PW-6 has admitted so while in the witness box. Sh. Bakshi Ram in his cross-examination conducted on behalf of the prosecution has stated that the contents of these documents were not gone into by him when put his signatures thereon. He admits that he is matriculate and can read as well as understand Hindi language. He is a conductor, therefore, he is not expected to have signed the documents, that too, in a case of this nature involving the freedom and liberty of an individual without going through the contents thereof. Being so, to our mind he is a liar and to the reasons best known to him, he has concealed the factual position from the Court. Neither in his examination-in chief nor in his cross-examination conducted on behalf of the prosecution, he has no-where stated that papers on which aforesaid documents i.e. Ext. PW- 6/A, Ext. PW-6/B, Ext. PW-6/C and Ext. PW- 6/D have been reduced into writing were blank………” xxx xxx xxx xxx xxx xxx xxx xxx xxx “21. Neither in his examination-in chief nor in his cross-examination conducted on behalf of the prosecution, he has no-where stated that papers on which aforesaid documents i.e. Ext. PW- 6/A, Ext. PW-6/B, Ext. PW-6/C and Ext. PW- 6/D have been reduced into writing were blank………” xxx xxx xxx xxx xxx xxx xxx xxx xxx “21. Before parting with the case, we would be failing in our duty, if ignore the manner in which PW-6 Bakshi Ram, the conductor of the bus has conducted himself while in the witness box. Taking note of the statement, he made while in the witness box, we have prima-facie formed an opinion that he is a liar and has not disclosed true facts to the Court. Admittedly, he was on duty as conductor with HRTC bus intercepted by the police at the place of ‘nakka’ at village Nagchala. As per the prosecution case, during the checking of luggage charas was recovered from the bag which the convict was holding on his legs. As we already observed in earlier part of this judgment, PW-6 is a liar and has deposed falsely to help the convict to the reasons best known to him, may be for some extraneous considerations. In our opinion, he while in the witness box has made a false statement, most probably, at the behest of the convict. When he has issued the ticket Ext. PA at 16:07:37 hours (04:07:37 pm) i.e. in all probability at Mandi or on the way at a place behind Nagchala, how he could have said while in the witness box that the bus reached at Nagchala at 4.00 p.m. that too, well before the issuance of ticket to the convict. According to him, the charas was recovered from the bag on the spot itself. When no evidence to the contrary that the police had enmity with the convict has come on record, it is proved that the charas was recovered from the bag which the convict was carrying with him. His denial to this part of the prosecution case itself speaks in plenty about his conduct and credibility. In his cross-examination conducted on behalf of the convict, he has introduced a new story that when the bag from which the charas recovered was not claimed by any passenger, the police directed the driver to take the bus to police station. His denial to this part of the prosecution case itself speaks in plenty about his conduct and credibility. In his cross-examination conducted on behalf of the convict, he has introduced a new story that when the bag from which the charas recovered was not claimed by any passenger, the police directed the driver to take the bus to police station. Such plea in his defence raised by the convict is an afterthought because had it been so, he could have examined someone to substantiate this aspect of this matter. Had the bus been taken to police station, some record like entries in the log book of the bus etc., would have been there with the HRTC. Otherwise also, some evidence that permission was sought by the driver to take diversion from Ner Chowk for driving the bus to police station should have been there and produced during the course of trial. He has admitted the issuance of ticket, however, denied the same having been taken into possession in his presence, irrespective of he has admitted his signature on the recovery memo Ext. PW- 6/C. It was no-where his version in his examination-in-chief or in his cross-examination conducted on behalf of the prosecution that he along with the driver of bus Hari Singh were made to sign blank papers. Interestingly enough, in his cross-examination conducted on behalf of the prosecution, he has admitted his signature on the seizure memo Ext. PW-6/A, personal search of accused vide memo Ext. PW-6/B, search of police officials given vide memo Ext. PW-6/C and arrest of accused vide memo Ext. PW-6/D. When he tells us that he has not gone through the contents of these documents, it leads to the only conclusion that contents were duly written in these documents. He is a matriculate and as per his version, not only he can read and write Hindi but he can also understand the same. When he is conductor, it cannot be expected that he would have signed blank papers, that too, at the instance of police and in a case of recovery of charas involving the freedom and liberty of an individual. There fore, to our mind PW-6 has intentionally and deliberately made a false statement with a view to screen the evidence and to save the convict from the prosecution and as such liable himself to be dealt with in accordance with law. 22. There fore, to our mind PW-6 has intentionally and deliberately made a false statement with a view to screen the evidence and to save the convict from the prosecution and as such liable himself to be dealt with in accordance with law. 22. Section 340 of the Code of Criminal Procedure takes care of such a situation. The provisions contained under the Section ibid reveal that if on an application made to it or otherwise, the Court is of the opinion that it is expedient and in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-Section (1) of Section 195 of the Code, which appears to have been committed in relation to proceedings of a case in that Court, the Court shall hold a preliminary inquiry and after recording a finding that by producing a document or giving a statement in evidence, an offence referred to in clause (b) of sub-Section (1) of Section 195 of the Code is made out, order to make a complaint in writing to a Magistrate of the first class having jurisdiction over the matter. 23. Section 340 of the Code of Criminal Procedure Code contemplates a preliminary inquiry to be conducted by the Court to form an opinion that it is expedient and in the interest of justice to hold inquiry into the offence which appears to have been committed. It is not mandatory for the trial Court to hold preliminary inquiry, because it has the opportunity to see the witness while in the witness box and to observe his demeanour. We, however, feel that the appellate Court, having no such opportunity to observe the demeanour of the witness, should hold an inquiry and give an opportunity of being heard to him, before forming an opinion that an offence within the meaning of clause (b) of sub- Section(1) of Section 195 of the Code of Criminal Procedure appears to have been committed by him. It is only thereafter, an order qua filing a complaint, as contemplated under Section 340 of the Code of Criminal Procedure, should be passed. 24. It is only thereafter, an order qua filing a complaint, as contemplated under Section 340 of the Code of Criminal Procedure, should be passed. 24. Therefore, before initiating any action against PW-6 Bakshi Ram, we deem it expedient and in the interest of justice to call upon him to show cause as to why an action be not initiated against him in the light of the observations in this judgment. Consequently, there shall be a direction to the Registry to issue show cause notice to PW-6 Bakshi Ram for 30.12.2016 and the proceedings be registered against this witness separately. A copy of judgment be also sent to him alongwith show cause notice. Office of learned Advocate General to collect notice from the Registry of this Court for onward transmission to the Superintendent of Police, Mandi, for effecting service thereof upon the witness aforesaid well before the date fixed. The record of the trial Court be retained for being referred to at the time of further consideration of the matter, after taking on record the version of the witness, to be referred to as ‘the respondent’ in the proceedings ordered to be drawn separately against him.” 3. Consequent upon the above directions, notice to show cause was issued to the respondent herein. In response thereto he filed reply. The relevant portion where of reads as follows: “2. That the replying respondent is a simple layman having no knowledge of technicalities of law. Replying respondent with bonafide intention helped the police official and at their instance appended his signature as per the directions of police officials. Since the passengers were getting late and making pressure over the driver, conductor and police party to do hurry and continue the journey, the police official taken the signatures of the driver conductor and some passengers on some blank papers and clothes. The reply respondent signed the documents at the instance of police officials in good faith. It is respectfully submitted that the replying respondent appeared first time in his life as witness in the court of law and before police and having no knowledge of the technicalities of law. It is admitted that the contraband has been found and recovered in the bus No.HP65 1768 and enquired about the bag from the passengers and staff of the bus and police detained five to several passenger in the Police Station for investigation. 3. It is admitted that the contraband has been found and recovered in the bus No.HP65 1768 and enquired about the bag from the passengers and staff of the bus and police detained five to several passenger in the Police Station for investigation. 3. That it is submitted that the replying respondent stated the truth before learned trial court below and further explained in his statement that how the signature of the replying respondent was got appended by the police during investigation. The replying respondent signed the blank documents in good faith at the instance of police party and while appeared before the learned court in pursuance to summons issued by the trial court, the replying respondent/witness No.6 deposed true facts on oath before the ld. Trial Court. The replying respondent admitted the fact that ticket Ex.PA is issued by him but replying respondent do not know whether Ex.PA was given to the accused or any other person. The replying respondent admitted his signature on the exhibits PW-6/A, Ex.PW-6/B, Ex.PW-6/C and Ex.PW-6/D and further deposed in his cross examination that he signed the aforesaid exhibits/documents in blank at the instance of Police and having no knowledge about the contents of aforesaid exhibits. The replying respondent has not actively participated the complete investigation hence, failed to state the facts which were not witnesses by him. The replying respondent has stated true facts on oath from his personal knowledge in his statement before ld. Trial Court.” 4. The explanation so forthcoming is neither plausible nor reasonable for the reason that normally a man of ordinary prudence is not expected to act at the behest of anyone else, more particularly, at that of the Police, investigating a criminal case involving high stakes. As a matter of fact, we have considered and discussed the role of the respondent as a witness in detail in the judgment and formed an opinion that a person like the respondent is not expected to sign the document that too during the search and seizure conducted by the Police in a case registered under Narcotic Drugs and Psychotropic Substances Act. Therefore, prima-facie the respondent has committed an offence punishable under Section 193 of the Indian Penal Code. Therefore, prima-facie the respondent has committed an offence punishable under Section 193 of the Indian Penal Code. In terms of the provisions contained under Clause ‘b’ (i) of sub-section (1) of Section 195 of the Code of Criminal Procedure, the cognizance of such an offence can only be taken on a complaint to be filed in writing against a person found to have indulged in the commission of offence punishable under the provisions of the Indian Penal Code mentioned, which in the case in hand is Section 193 IPC, in the Court of Judicial Magistrate 1st Class having jurisdiction to entertain and try the same. 5. In view of what has been said here in above, the respondent has deliberately deposed falsely and made contradictory statement while in the witness box and thereby perjured and his prosecution, as such, is expedient in the interest of justice. There fore, we hereby direct the Registrar (Judicial) of this Court to file a complaint against respondent Bakshi Ram (PW-6) in the Court of Chief Judicial Magistrate, Mandi, in terms of Section 340 read with Section 195 (b) (1) of the Code of Criminal Procedure. The respondent to furnish personal bond in the sum of Rs.10,000/- to the satisfaction of learned Registrar (Judicial) of this Court today itself, undertaking thereby to appear in the Court below as and when summoned in the complaint. These proceedings stand disposed of accordingly. 6. The observations, if any, here in above shall remain confined to the disposal of these proceedings alone and shall have no bearing in the complaint to be filed against the respondent, which has to be decided on merits, after affording opportunity of being heard to the parties and uninfluenced there by.