Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 215 (GAU)

MD. EUSUF ALI v. STATE OF ASSAM

2018-02-05

MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : 1. Heard Mr. P. Kataki, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P., Assam for the State. 2. This appeal is directed against the order dated 30.12.2008 passed by the learned Additional Sessions Judge (FTC) , Darrang in Misc. Case No. 7/2008 arising out Sessions Case No. 56 (D/M) 2007, convicting the accused appellant under Section 344 CrPC and sentencing him to simple imprisonment for three months. 3. The accused appellant herein lodged an FIR alleging that one Abu Sama Ali was in possession of fake currency note of Rs. 100/- denomination and on the basis of the said FIR, police registered a case and eventually submitted charge sheet. The offence being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and Sessions Case No. 56 (DM) /2007 was registered. The accused Abu Sama Ali stood trial in the Sessions Case No. 56 (DM)/2007. During, trial the accused appellant, who was the informant and other witnesses did not support the prosecution case, resulting in acquittal of the accused Abu Sama Ali in Sessions Case No. 56 (DM) /2007. 4. While passing the judgment of acquittal in Sessions Case No. 56 (DM) /2007, learned Addl. Sessions Judge made an observation that the present appellant, who was the informant in the said case adduced false evidence and accordingly decided to proceed against the accused appellant summarily under Section 344 CrPC for giving false evidence to screen the accused. A show cause notice was issued on the same day and in reply to the said show cause, the accused appellant stated that there might be differences between the statement recorded under Section 161 CrPC and the evidence in court and such anomaly and difference might have arisen because of the fact that his statement was more or less depended on the version of his employee and he could not ascertain actually who gave the fake currency note. He stated in the show cause reply that if there was any difference in between his statement before court and the statement recorded under Section 161 CrPC that was due to mistake on his part and prayed for pardon. Acting upon the said show cause reply, learned Sessions Judge convicted the appellant under Section 344 CrPC for giving false evidence. 5. Acting upon the said show cause reply, learned Sessions Judge convicted the appellant under Section 344 CrPC for giving false evidence. 5. Learned Trial Court mentioned in the order that the substance of offence was explained and the accused admitted his guilt and prayed for mercy. But, from the record, it appears that no such plea of guilt was recorded by the learned Trial Court. 6. Section 344 CrPC reads as under: "344. Summary procedure for trial for giving false evidence. (1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both. (2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials. (3) Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section. (4) Where, after any action is initiated under sub- section (1) , it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub- section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision." 7. From a plain reading of Section 344 CrPC, it transpires that while passing any judgment, the Court or Magistrate, if expresses an opinion that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence and the Court or Magistrate if satisfied that it is necessary and expedient in the interest of justice that such witness should be tried summarily for giving fabricating evidence, may take cognizance of the offence after giving reasonable opportunity of showing cause why he should not be tried for such offence summarily. Sub-Section (2) provides that in such case, court shall follow as nearly as may be practicable, the procedure prescribed for summary trials. 8. In the instant case, from the impugned order and the show cause reply given by the accused appellant, it appears that in the show cause reply the appellant simply stated that there might be differences in between the statement made under Section 161 CrPC and the evidence before Court and such anomalies having occurred due to mistake, the appellant also prayed for pardon. This show cause reply as appeared from the impugned order has been taken as an admission of guilt by the learned Trial Court. 9. As intended by Section 344 CrPC, the Court or Magistrate has to satisfy whether an accused should be tried for the offence of giving false evidence or not. After giving show cause, if Court or Magistrate is satisfied that it is necessary in the interest of justice, that a witness is required to be tried and punish for giving false evidence, then the Court or Magistrate has to follow the procedure prescribed for summary trial. Before putting any accused into trial, even by summary procedure, the offence has to explain to the accused and as per Section 251 CrPC. If the accused admit his guilt, court shall record such guilt and convict him on such plea of guilt. In the instant case, what appears is that after having been satisfied to proceed against the accused on getting show cause reply, learned Trial Court has not recorded the plea of guilt of the accused. There is also no material on record to show whether the particular of the offence of giving false evidence were explained. It is apparent from the order that no any plea of guilt was recorded. There is also no material on record to show whether the particular of the offence of giving false evidence were explained. It is apparent from the order that no any plea of guilt was recorded. Learned Trial Court is found to have convicted the appellant on the basis of his show cause reply assuming the same to be a plea of guilt. The show cause reply given by the accused appellant could not be construed as plea of guilt, for the simple reason that in the show cause reply, the accused did not admit his guilt that he had given any false evidence. Therefore, apparently, learned Trial Court immediately after expressing his view in the judgment, hurriedly convicted the accused appellant under Section 344 CrPC without following the required procedure for a summary trial and therefore, the conviction and sentence in the instant case, in absence of any trial as contemplated under Section 344 CrPC cannot be sustained and accordingly, the same is set aside. 13. The appeal stands allowed. 14. Send down the LCR.