Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 274 (GAU)

Utpal Ghosh Biswas v. State of Assam

2019-03-01

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. A.M. Bora, learned senior counsel appearing for and on behalf of the petitioner as well as Mr. M.P. Goswami, learned Addl. P.P., Assam representing the State respondent No.1 and Mr. R. Sarma, learned counsel appearing for the respondent No.2. 2. The petitioner herein has been arrayed as one of the accused in the Sessions Case No.50(T)/2015, pending before the learned Sessions Judge, Tinsukia. The case is at the hearing stage, after framing of charge. 3. During the course of hearing, two witnesses were examined by the prosecution on 05.05.2016 out of 16 witnesses (PW.1, Smti Jugo Verma and PW.2, Smti Mamon Verma) who turned hostile and they have denied their statement before the I.O. as well as the Magistrate. Persuaded by the fact that these witnesses have given false evidence by deviating from their earlier statement, the learned trial Court by its order dated 05.05.2016, directed the Sheristader of the establishment of District & Sessions Judge, Tinsukia to file a complaint against both the witnesses, under Section 193 of the IPC, by holding that "it transpires that both the witnesses are giving false evidence in the court, which is punishable u/s.193 of I.P.C.". 4. Now assailing the aforesaid order, one of the accused of Sessions Case No.50(T)/2015/present petitioner has turned up before this Court with the present petition challenging the aforesaid order under Section 482 read with Section 483 Cr.P.C., for quashing the order on the twin grounds: firstly that the learned trial Court has not at all adhered to the prescribed procedure while initiating such criminal proceeding against the witnesses and secondly, the Court has not conducted any inquiry as provided under Section 340 of the Cr.P.C, prior to initiation of such criminal proceeding, as mandated under the law and ultimately the petitioner will be prejudiced if the case ended against him by relying upon such evidence at the conclusion of the trial. Accordingly prayer has been made to quash the aforesaid order in the interest of justice. 5. I have gone through the impugned order so passed by this Court and considered the submission of learned counsel for the petitioner as well as the learned counsel for the State respondent and respondent No.2, the informant. 6. Accordingly prayer has been made to quash the aforesaid order in the interest of justice. 5. I have gone through the impugned order so passed by this Court and considered the submission of learned counsel for the petitioner as well as the learned counsel for the State respondent and respondent No.2, the informant. 6. According to both the respondents, there is no illegality in the order as the witnesses apparently has raised from their earlier evidence made before the Court as well as before the I.O. and it has also been pointed out that the aforesaid witnesses against whom such criminal proceeding is contemplated are not before this Court and the question of prejudice by the accused/petitioner is merely an apprehension, in a reality. 7. On the other hand, Mr. A.M. Bora, learned senior counsel for the petitioner has strenuously argued before this Court that such an order which is palpably illegal and has been passed by blatant violation of law and procedure, is not maintainable and it is of no consequence of it is challenged by the present petitioner or by the aggrieved persons (witnesses). It is submitted that the question of prejudice on the part of the accused also come into play, as any decision by the Court on the matter will ultimately affect the status of the accused while arrive at the guilt or innocence in the said case. 8. The provision of Sections 193/195 of the IPC as well as Section 340 of the Cr.P.C. have been elaborated before this Court to submit that to take cognizance of an offence under Section 193 IPC, the enquiry under Section 340 Cr.P.C. is mandatory, as cognizance is barred unless such enquiry is conducted. Section 340 Cr.P.C. also prescribe such an enquiry on the part of the Court prior to initiation of such proceeding. It is mentioned that provision of Section 340 Cr.P.C. itself come under the heading of "Provisions as to Affecting the Administration of Justice" and Section 340 speaks about procedure to be maintained in cases mentioned in Section 195 IPC. 9. In support of his contention, the learned senior counsel for the petitioner has also relied and referred to the decision of the Hon'ble Apex Court in Shabir Hussain Bholu vs. State of Maharashtra, AIR 1963 SC 816 and K.T.M.S. Mohd. 9. In support of his contention, the learned senior counsel for the petitioner has also relied and referred to the decision of the Hon'ble Apex Court in Shabir Hussain Bholu vs. State of Maharashtra, AIR 1963 SC 816 and K.T.M.S. Mohd. and another vs. Union of India reported in, (1992) 3 SCC 178 , which also speaks about that prior to initiation of a criminal proceeding against such witnesses who turn up hostile, an enquiry under Section 340 Cr.P.C. is mandatory. 10. I have considered the submission of learned counsel for both the parties as well as gone through the provisions relied referred into. 11. Section 340 Cr.P.C. reads as follows: "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 interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (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 of 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 sub-section (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 sub-section (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." 12. Now what is the importance of provision of Section 340 Cr.P.C. has been prescribed by the Hon'ble Supreme Court in K.T.M.S. Mohd. (Supra) and the relevant observation is quoted below: "35. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading "Provisions as to offences affecting the administration of justice". This section confers an inherent power on a Court to make a complaint in respect of an offence 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, if that Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-section (1) of Section 195 and authorises such Court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under subsection (1) of Section 340. The words "in or in relation to a proceeding in that Court" show that the Court which can take action under this section is only the Court operating within the definition of Section 195 (3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340(1) which corresponds to Section 476(1) of the old Code was examined by this Court in K. Kanunakaran v. T. V. Eachara Warrier and Another, (1978) 1 SCC 18 and in that decision, it has observed: "At an enquiry held by the Court under Section 340 (1), Cr.P.C., irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if un-rebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. ................................................. ....................The two pre-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC." 36. The above provisions of Section 340 of the Code of Criminal procedure are alluded only for the purpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statement in a judicial proceeding. 37. The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under Section 193 IPC but it must be established that the deponent has intentionally given a false statement in any stage of the 'judicial proceeding' or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice.". 13. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice.". 13. On close appreciation of the matter, now it became apparent that the learned trial Court has examined only two witnesses out of sixteen and the remaining witnesses are yet to be examined and the fact that the said witnesses who have made statement before the I.O. under Section 161 Cr.P.C., is not confronted with the I.O. and so the same is not yet conclusive as to whether such statement was made before the I.O. On the next, as regard the statement made before the Magistrate under Section 164 Cr.P.C. also, the Court is to ascertain itself so as to sufficiently justify for a prosecution for perjury, under Section 193 IPC and the fact that the deponent intentionally given such false statement, which has been indicated by the Hon'ble Supreme Court in K.T.M.S. Mohd. (Supra) in para-37 is no way conducted by the learned trial Court, as mandated under the procedure. 14. Although the aforesaid witnesses are not before this Court to challenge the impugned order but it is apparently made out that such an order has been made without following the prescribed procedure of law. It is the requirement of the law that when a function is discharged by the Court of law, it is to be conducted as per the procedure prescribed. The question of prejudice that has been raised by the accused/petitioner cannot also brush aside. It is also appeared that the learned trial Court has hurriedly come to such conclusion at the initial stage of trial, while trial is yet to go ahead with lot number of witnesses and similar matter of hostile witness may come up, as regards other witnesses also and such matter can be summed up at concluding part of prosecution hearing. 15. Taking into account all above, the aforesaid order dated 05.05.2016, passed in Sessions Case No.50(T)/2015 is not being sustainable in the eye of law, is quashed and set aside with a direction to the learned trial Court to proceed with the hearing of rest of the witnesses and can file proper complaint, if so advised, by adhering to the required procedure as indicated above. 16. With this observation, the petition stands disposed of.