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2021 DIGILAW 684 (KAR)

JAGDISH CHANDRA SIDDARAMAPPA PATIL v. STATE

2021-06-15

RAJENDRA BADAMIKAR

body2021
JUDGMENT : Rajendra Badamikar, J. 1. The petitioner has filed this petition under Sec. 482 of Cr.P.C. for setting aside the order dtd. 18/4/2015 passed in C.C.No. 2621/2015, arising out of Crime No. 50/2013, which is pending on the file of I Additional JMFC, Kalaburagi. 2. The facts leading to this case are that the petitioner was a complainant in Crime No. 50/2013 against four accused persons registered for the offences punishable under Ss. 341, 323, 324, 504, 506 read with Sec. 34 of the Indian Penal Code, 1860 (for short 'IPC')- The investigating officer has subsequently submitted the charge sheet and case was registered in C.C.No. 3199/2013 against the accused therein. The matter went for trial and after appreciating the evidence on record, the learned Magistrate by order dtd. 18/4/2015 acquitted accused Nos.1 to 4 for the offences punishable under Ss. 341, 323, 324, 504, 506 read with Sec. 34 of IPC and set them at liberty. However, he has passed further order that in view of the observations made in paragraph Nos.29 to 31 against PW.1/complainant/present petitioner, he shall be tried summarily for giving false evidence before the Court and in his further order, the learned Magistrate has directed to register a case in Register No. 111 against the complainant/present petitioner for the offence punishable under Sec. 193 of IPC and ordered to place the judgment copy and copy of the depositions of the complainant with a direction to issue show cause notice to him. The order regarding issuing show cause notice to the petitioner came to be challenged in this petition. 3. The learned counsel for the petitioner contended that the learned Magistrate ought to have lodged a complaint, which is mandatory under Sec. 195(l)(b)(i) of Cr.P.C. when he has making a complaint for the offence punishable under Sec. 193 of IPC, but, that was not done in the present case. He further argued that the learned Magistrate has also not proceeded summarily and his directions are inconsistent in operative portion of the judgment. Hence, he has sought for setting aside the said order. 4. He further argued that the learned Magistrate has also not proceeded summarily and his directions are inconsistent in operative portion of the judgment. Hence, he has sought for setting aside the said order. 4. Per contra, the learned High Court Government Pleader submitted that the petitioner herein has given a false evidence and the trial Court has observed the same in paragraph Nos.29 to 31 in its judgment and that is the base for issuing show cause notice to him and hence, it is contended that no illegality is there and sought for dismissal of the petition. 5. The complainant has lodged a complaint against the accused persons therein in the original case C.C.No. 3199/2013 by setting the law in motion. However, when the trial has been commenced, the complainant has given go bye to the allegations made in the complaint and denied the entire case of the prosecution by turning hostile. The learned Magistrate has observed that the complainant/petitioner herein went on changing his stances as per his whims and fancies and he has given false evidence and hence, directed him to prosecute. The said observation cannot be said to be illegal considering the facts placed on record. 6. The offence punishable under Sec. 193 of IPC is pertaining to intentionally giving false evidence in any stage of a judicial proceeding and it is punishable with imprisonment, which may extend up to seven years and with fine. Hence, it is evident that a person to be prosecuted for the offence punishable under Sec. 193 of IPC and such case to be tried as a warrant trial. 7. Sec. 195(l)(b)(i) of Cr.P.C. deals with the prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. The said sec. stipulates that any offence under the provisions of Ss. 193 to 196 of IPC if committed, or in relation to, any proceeding in any Court, no Court shall take cognizance except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf. Admittedly, the offence under Sec. 193 of IPC is a warrant trial, which is punishable with imprisonment up to seven years and fine. Admittedly, the offence under Sec. 193 of IPC is a warrant trial, which is punishable with imprisonment up to seven years and fine. Further, the provisions of Sec. 195 of Cr.P.C. states that, when there is allegation of fabrication, the Court must lodge a complaint. In the instant case, the learned Magistrate did not lodge any complaint. He straight away issued a show cause notice and Sec. 195 of Cr.P.C. mandates the lodging of the complaint, which is not followed in this case. 8. At the same time, Sec. 344 of Cr.P.C. deals with the summary procedure for trial for giving false evidence and said Sec. 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 wilfully 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 sec. shall affect the power of the Court to make a complaint under sec. 340 for the offence, where it does not choose to proceed under this sec. . (4) Where, after any action is initiated under sub- sec. (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- sec. . (4) Where, after any action is initiated under sub- sec. (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- sec. 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. 9. The said sec. clarifies that if the Court while delivering the judgment comes to the conclusion that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evident with the intention that such evidence should be used in such proceeding, may take cognizance after giving the offender a reasonable opportunity of showing cause why he should be punished for such offence and then after trying him by imposing a sentence, which may extend up to three months or fine to the extent of rupees five hundred or both. 10. In the instant case, the allegations and observations of the learned Magistrate were regarding the complainant giving false evidence by turning hostile and denying the complaint allegations. The learned Magistrate initially directed that the complainant should be tried summarily, but, subsequently, he further directed to register a case in register No. 111 for the offence punishable under Sec. 193 of IPC. Both cannot be acted simultaneously, as the offence under Sec. 344 of Cr.P.C. is a summary trial, while the offence under Sec. 193 of IPC is a warrant trial procedure. The order sheet of the learned Magistrate also clearly discloses that in terms of Sec. 344 of Cr.P.C, the Court has registered the case, but, the further order goes to show that show cause notice came to be issued as to why he shall not be punished for the offence under Sec. 193 of IPC. Sec. 193 of IPC cannot be tried summarily. The observations made by the learned Magistrate are inconsistent and contrary to each other. Hence, to this extent, the order of the learned Magistrate regarding registration of the case against the present petitioner is improper and calls for interference. Sec. 193 of IPC cannot be tried summarily. The observations made by the learned Magistrate are inconsistent and contrary to each other. Hence, to this extent, the order of the learned Magistrate regarding registration of the case against the present petitioner is improper and calls for interference. However, the learned Magistrate is required to decide as to whether he wants to proceed under Sec. 344 of Cr.P.C. or under Sec. 193 of IPC and in that event, he is required to follow the procedure as contemplated under Ss. 195 of Cr.P.C. Hence, the petition needs to be allowed and accordingly, I proceed to pass the following: ORDER: The petition is allowed. The impugned order passed by the learned Magistrate in C.C.No. 2621/2015 dtd. 18/4/2015 is set aside. However, the learned Magistrate is directed either to try the matter summarily regarding the offence of giving false evidence under Sec. 344 of Cr.P.C. or else he is required to follow the procedure as contemplated under Sec. 195(l)(b)(i) of IPC for trying of the offence under Sec. 193 of IPC. In any event, the learned Magistrate shall dispose of the entire proceedings against the present petitioner/complainant within an outer limit of nine months from the date of receipt of certified copy of this order, as entire case is based on the documentary evidence as oral evidence has no role to play.