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2021 DIGILAW 605 (JK)

Gh. Sabar v. Union Territory of J&K

2021-11-18

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present petition has been filed by the petitioner for quashing the order dated 01.01.2021 passed by the learned Additional Sessions Judge, Kathua (hereinafter to be referred as the trial court) subsequently, after the disposal of challan titled, “State vs. Shifiq Alam” by virtue of which, the learned trial court has directed for initiation of proceedings against the petitioner under section 479-B of the Code of Criminal Procedure (Cr.P.C.). 2. The petitioner was cited as a witness in the aforesaid challan in which it was stated that on 25.07.2014 at about 10 AM, a telephonic message was received at Police Station, Billawar regarding the death of one lady, namely, Parveen Akhter under mysterious circumstances and the body of deceased was lying in mortuary of Hospital Billawar. Inquest proceedings were initiated and during the course of inquest proceedings, several statements were recorded including the statement of father of deceased and it was found that the deceased was given severe beating in the night intervening 24/25 of July, 2014 by the accused and as a consequence of the same, the deceased died. Thereafter, FIR bearing No. 95 of 2014 was registered and after the conclusion of the investigation, the charge-sheet was filed, that was subsequently transferred to the court of learned Additional Sessions Judge, Kathua. The prosecution relied upon the testimonies of 16 witnesses cited in the charge-sheet and the petitioner was shown as one of the witnesses in the charge-sheet. The statement of the petitioner was also got recorded by the Investigating Agency under section 164-A Cr.P.C. After the conclusion of the trial, learned trial court dismissed the challan vide judgment dated 31.12.2020. It is further stated that from the perusal of the judgment of acquittal passed by the learned trial court, it is evident that the learned trial court acquitted the accused on several grounds. The case purely rested on circumstantial evidence as there was no eye witness cited by the prosecution. 3. In the said judgment, the learned trial court has neither expressed any opinion regarding the conduct of the petitioner nor had drawn any satisfaction that the petitioner was guilty of willfully giving false evidence or fabricating false evidence with intention that such evidence shall be used in such proceedings but had simply acquitted the accused, after the learned trial court found that the material relied upon by the prosecution is insufficient to maintain conviction. It is further stated that after the accused was acquitted vide judgment dated 31.12.2020, the learned trial court on the very next day directed initiation of proceedings against the petitioner under section 479-B Cr.P.C. and that too against the mandate of plain language of the provision, as it was incumbent upon the learned trial court to express the opinion in the judgment or the final order disposing of the judicial proceedings that the witness has subsequently retracted his statement in material particulars and has changed his version by narrating new facts which were destructive to the case of prosecution and further that such retraction as well as contradiction is of such a nature that the witness was guilty of knowingly or willfully giving false evidence or fabricating false evidence with the intention that such evidence should be used in such proceedings. 4. It is further stated that the prosecution case not only rested upon the petitioner but the case of the prosecution was based upon circumstantial evidence as there was no eye witness account available on record and the prosecution had miserably failed to prove the chain of circumstances connecting the accused to the crime and once there were inherent defects in the prosecution evidence making it almost improbable for the trial court to convict the accused, the version of the petitioner could not have been given much credence as the petitioner had not denied the recording of his statement under section 164-A Cr.P.C. 5. Mr. Anil Khajuria, learned counsel for the petitioner has reiterated the submissions those have been made in the petition. 6. On the contrary, Mr. Aseem Sawhney, has vehemently argued that the section 479-B Cr.P.C. was added to the statute only to ensure that the witnesses whose statements have been recorded under section 164-A Cr.P.C. do not turn hostile, subsequently for any reason whatsoever and as the petitioner has retracted from his earlier statement, so the learned trial court has rightly proceeded against the petitioner. 7. Heard and perused the record. 8. From the record, it is evident that the petitioner was cited as PW-1 in challan and he is in fact was a witness to the extra judicial confession made by the accused before whom the accused had impliedly confessed that he had killed his wife. 9. 7. Heard and perused the record. 8. From the record, it is evident that the petitioner was cited as PW-1 in challan and he is in fact was a witness to the extra judicial confession made by the accused before whom the accused had impliedly confessed that he had killed his wife. 9. Admittedly, the statement of the said witness was recorded under section 164-A Cr.P.C., however, during his deposition before the learned trial court during the course of trial, the petitioner admitted to have made statement recorded under section 164-A Cr.P.C. but retracted from the material particulars of his statement and the details of the retracted statement made by the accused on being confronted by the prosecution, are reproduced as under:- “..........The witness admitted that his statement was recorded under section 164-A Cr.P.C. ............ On further cross-examination by learned APP, on 24.03.2016, the witness denied that he had narrated in his statement recorded, under section 164-A of Cr.P.C., that when he enquired from the accused that why did he kill the deceased, the latter had told him that he has made a mistake, the latter had told him that he has made a mistake and, further, asked the witness that what should be he (the accused) do (in the matter)? The witness further deposed that he had not deposed in his statement, recorded u/s 164-A of Cr.P.C., that: the accused used to inflict frequent beating/s to the deceased; the accused was involved in a criminal case for offence of murder on earlier occasion as well and had remained in Jail for about 7 to 8 months; even after coming out from the Jail, his conduct towards his wife was not good as he always suspected his wife of not having food moral character and that was why he used to inflict beating/s to her and ultimately killed her. The witness asserted that he had not deposed any of the said in his statement(supra). The witness denied the fact that the contents of his statement, recorded on 26.08.2014 u/sec. 164- A Cr.P.C., were read over and explained to him. The witness added that the said contents must have been recorded by the Presiding Officer of the Court of his own for he had not deposed anything like that. The witness denied the fact that the contents of his statement, recorded on 26.08.2014 u/sec. 164- A Cr.P.C., were read over and explained to him. The witness added that the said contents must have been recorded by the Presiding Officer of the Court of his own for he had not deposed anything like that. However, the witness further denied the suggestion that he was making a wrong statement before the Court in order to save the accused. The witness identified his signature on the seizure memo/s with respect to seizure/s of blood-stained clay, plain-clay and the cloth (Chadar) when shown to him in the Court but denied the contents thereof.” 10. This is a fact as is evident from the testimony of the petitioner that he has turned hostile and had categorically stated that he had not made such statement before the concerned Magistrate. There is no doubt that the witness was required to be proceeded against under section 479-B Cr.P.C. Now, it is to be seen whether the learned trial court has rightly proceeded against petitioner in accordance with the provisions contained in section 479-B Cr.P.C. or not. 11. There is no doubt that the witness was required to be proceeded against under section 479-B Cr.P.C. Now, it is to be seen whether the learned trial court has rightly proceeded against petitioner in accordance with the provisions contained in section 479-B Cr.P.C. or not. 11. Section 479-B Cr.P.C. is reproduced as under:- “479-B. Summary Procedure for trial of witnesses deposing contrary to statements recorded under section 164-A by Magistrate (1) If, at the time of any judgment or final order disposing of any judicial proceeding, a court of Sessions or Magistrate of the first class expresses an opinion to the effect that, any witness, whose statement recorded under sub-section (2) of section 164A in respect of one offence or in respect of a different offence as referred to in sub-section (2) of section 221, appearing in such proceedings and subsequently retracted his statement in material particulars by stating inconsistent facts or had changed his version by narrating new facts which were destructive of the prosecution case and the Court of Sessions or a Magistrate of first class is satisfied that such retraction, contradiction or change of version is of such a nature that the witness is guilty of knowingly or willfully giving false evidence or fabricating 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 notwithstanding anything contained in the provisions of this Code, sentence him to imprisonment for a term which shall not be less than three months but which may extend to two years and shall also be liable to fine: Provided that the provisions of this section shall apply only where the giving or fabrication of false evidence relates to be conduct of the witness subsequent to the recording of his statement under sub-section (2) of section 164A. (2) The provisions of sub-section (2), (3) and (4) of section 479A shall apply for trial of an offence under this section as they apply to the summary trial of any offence referred to in sub-section (1) of that section.” 12. Section 479-B was added to the Code of Criminal Procedure with the salutary purpose to ensure that the witnesses in serious cases, whose statements have been recorded under section 164-A, do not turn hostile subsequently during the course of trial for any reason whatsoever. 13. The opening words of the section read as “if at the time of any judgment or final order disposing of any judicial proceeding” meaning thereby that when the Magistrate or the court of Sessions is passing any judgment or final order disposing of judicial proceedings expresses an opinion that a witness whose statement was recorded under section 164-A Cr.P.C. has subsequently retracted in his statement in material particulars by stating inconsistent facts or had changed his version by narrating new facts those were destructive of the prosecution case and the Court of Sessions or a Magistrate is satisfied that such retraction, contradiction or change of version is of such a nature that the witness is guilty of knowingly or willfully giving false evidence or fabricating false evidence with the intention that such evidence should be used in such proceeding and further if he is satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating 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 shall not be less than three months but which may extend to two years and shall also be liable to fine. 14. A perusal of the judgment dated 31.12.2020 reveals that the learned trial court while acquitting the accused thereby disposing of the charge-sheet filed against the accused, has nowhere expressed an opinion that the petitioner has retracted his statement in material particulars by stating inconsistent facts or had changed his version by narrating new facts those were destructive of the prosecution case. The learned trial court has simply translated and reproduced the statement of the petitioner and proceeded to hold that the said witness has not supported the prosecution in the judgment dated 31.12.2020. Further in case the learned trial court intended to proceed against the petitioner under section 479-B Cr.P.C., it was obligatory on the part of the trial court to record its satisfaction in the judgment itself that the petitioner whose statement was recorded under section 164- A Cr.P.C. has subsequently retracted in his statement in material particulars by stating inconsistent facts or had changed his version by narrating new facts those were destructive of the prosecution case and further it was incumbent for the trial court to further record its satisfaction in the judgment itself that such retraction, contraction or change of version was of such nature that the witness was guilty of knowingly or willfully giving false evidence or fabricating false evidence with intention that such evidence should be used in such proceedings and further satisfaction was also required to be recorded that it was necessary and expedient in the interest of justice that the witness/petitioner should be tried summarily for giving or fabricating the false evidence. In the judgment dated 31.12.2020, neither the trial court has expressed its opinion with regard to the retraction, contraction or change of version made by the petitioner nor satisfaction that such retraction/change of version was of such nature that the petitioner was guilty of knowingly or willfully giving false evidence or fabricating false evidence, has been recorded. Also no satisfaction has been recorded in the judgment that it was necessary and expedient in the interest of justice to proceed summarily against the petitioner. Rather one day after passing the judgment, the learned trial court proceeds against the petitioner by invoking the provision of section 479-B Cr.P.C. vide order dated 01.01.2021. 15. I am of the considered opinion that once the learned trial court passed the judgment, the trial court became functus officio as there were no proceedings pending before the learned trial court and in case the trial court had to proceed against the petitioner under section 479-B Cr.P.C., then the trial court was required to proceed on the same date when the judgment was passed and after expressing its opinion and recording its satisfaction in the judgment itself. 16. 16. Hon'ble Apex Court in Mahila Vinod Kumari v State of Madhya Pradesh, (2008) 8 SCC 34 , had an occasion to deal with section 344 Cr.P.C.(Central Code). The Apex Court in paragraph No. 8 has held as under:- “8. For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be punished. All these conditions are mandatory”. 17. In view of all what has been discussed above, the order dated 01.01.2021 passed by the learned trial court is not sustainable in the eyes of law, as such, the same is set aside.