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2022 DIGILAW 461 (CHH)

XYZ v. State of Chhattisgarh

2022-10-20

SANJAY K.AGRAWAL

body2022
ORDER : 1. The petitioner was victim and also stood as witness in Special Criminal Case No. 8/2018, State of Chhattisgarh vs. Bhupendra Rathore. The accused in that special criminal case was acquitted by the learned Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Act of 1989’) of the charges under Section 376(2) of the IPC as well as Section 3(2)(v) of the Act of 1989 finding that the victim/petitioner herein has not supported the case of the prosecution and the prosecution has failed to prove the aforesaid offences beyond reasonable doubt, and while acquitting, in paragraph 11 of the impugned judgment, the learned Special Judge has directed that separate proceeding be registered against the petitioner herein for giving false evidence, punishable under Sections 181, 182, 211 and 191 to 193 of the IPC, as application has been filed by the prosecution for the said purpose, pursuant to which fresh proceeding has also been registered being MJC No. 59/2018. 2. This petition under Section 482 of the Cr.P.C. has been filed for quashing the direction contained in paragraph 11 of the judgment dated 6-10-2018 passed by the Special Judge under the Act of 1989, Bilaspur, in Special Criminal Case No. 8/2018. 3. The petitioner was examined and cross-examined and discharged by the Special Judge under the Act of 1989 in which she has not supported the case of the prosecution and has also not supported her written report and her statement under Section 164 of the Cr.P.C. recorded before the Judicial Magistrate which led to acquittal of accused Bhupendra Rathore for offences under Sections 376(2) of the IPC and 3(2)(v) of the Act of 1989, and upon conclusion of trial in that proceeding, the prosecution has filed an application under Section 344 of the Cr.P.C. for prosecuting the victim/petitioner herein for giving false evidence. Accordingly, a separate proceeding has been registered against the petitioner herein and the petitioner has been proceeded against for giving false evidence which has been challenged in this petition under Section 482 of the Cr.P.C. 4. Mr. Accordingly, a separate proceeding has been registered against the petitioner herein and the petitioner has been proceeded against for giving false evidence which has been challenged in this petition under Section 482 of the Cr.P.C. 4. Mr. C.K. Kesharwani, learned counsel appearing for the petitioner, would submit that though the learned Special Judge directed for registration of fresh case under Section 344(1) of the Cr.P.C. for giving false evidence, but he has not recorded a finding in Special Criminal Case No. 8/2018 that the petitioner knowingly or willfully given false evidence which is sine qua non for proceeding against the petitioner under Section 344(1) of the Cr.P.C. in absence thereof, the proceedings are liable to be set aside. 5. Per contra, Mr. Arjit Tiwari, learned Panel Lawyer appearing for the State/respondent No. 1, would support the impugned judgment and submit that since the petitioner has given false evidence and has not supported the statement under Section 164 of the Cr.P.C. and her written report lodged against the accused therein, the learned Special Judge has rightly passed order directing for registering separate case against the petitioner herein which is strictly in accordance in law and the petition is liable to be dismissed. 6. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the material available on record with utmost circumspection. 7. It is correct to say that the petitioner herein was victim and also stood as witness in the criminal proceeding launched on the written complaint made by her in which her statement under Section 164 of the Cr.P.C. was also recorded and in the said statement, she did not support the case of the prosecution and ultimately, the Special Judge acquitted the accused finding no evidence and further finding that the petitioner has not supported the case of the prosecution, but after acquittal, the trial Court/Special Judge has recorded a finding as stated in paragraph 11 of the judgment as under: ^^11- bl ekeys esa vfHk;kstu ds ihfM+rk ds fo:) naM Áfd;k lafgrk dh /kkjk&344 ,oa feF;k lk{; nsus ds laca/k esa Hkkjrh; n.M lafgrk dh /kkjk&181] 182] 211] 191 ls 193 ds varxZr dk;Zokgh fd;s tkus ds laca/k esa vkosnu is’k fd;k gSA mDr vkosnu ij i`Fkd ls fof/kd nkf.Md dk;Zokgh lafLFkr fd;k tkosaA** 8. Pursuant to the direction given by the learned Special Judge, criminal proceeding MJC No. 59/2018 has been registered and notices have been issued to the victim by the learned Special Judge on 7-10-2018 for the aforesaid offences, copies of order sheets of the said MJC have been filed by the State/respondent No. 1 herein as Annexure R-1. 9. Now, the question is, whether the Special Judge is justified in registering the said proceeding against the petitioner herein for giving false evidence under Section 344(1) of the Cr.P.C. 10. Section 344(1) of the Cr.P.C. states 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.” 11. This provision corresponds to Section 479-A of the old Code. The object of this provision is to eradicate evil of perjury in summary way. 12. The prosecution for perjury should be sanctioned by the Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. There must be a prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. In dealing with perjury prosecutions, the question of long lapse of time of more than ten years is relevant. [See Chajoo Ram vs. Radhey Shyam and Another, 1971 (1) SCC 774 ] 13. This provision is also intended to protect witness from harassment of frivolous prosecution for perjury. In dealing with perjury prosecutions, the question of long lapse of time of more than ten years is relevant. [See Chajoo Ram vs. Radhey Shyam and Another, 1971 (1) SCC 774 ] 13. This provision is also intended to protect witness from harassment of frivolous prosecution for perjury. [See Dhansingh Khadaksingh Raghubansi vs. Ramsaran Dariya, AIR 1961 M.P. 305 ] 14. Before the Court can issue show cause notice under Section 344 of the Cr.P.C. it must be satisfied first that the witness appearing in the proceedings knowingly or willfully has given false evidence or fabricated false evidence and secondly, it is necessary and expedient in the interests of justice that the witness should be tried as provided under Section 344 of the Cr.P.C. 15. In the matter of Dr. B.K. Pal Chaudhary vs. State of Assam, AIR 1960 SC 133 the Supreme Court has held that the combined effect of sub-sections (1) and (5) of Section 479A of the old Cr.P.C. is to require the court intending to make a complaint, to record a finding that in its opinion a person appearing as a witness has intentionally given false evidence and that for the eradication of the evils of perjury and in the interests of justice, it is expedient that such witness should be prosecuted for the offence and to give the witness proposed to be proceeded against, an opportunity of being heard as to whether a complaint should be made or not. 16. Furthermore, the Supreme Court in the matter of Mohammad Ibrahim vs. B. Rama Rao, AIR 1976 SC 1822 held that the Court must form prima facie opinion at the time of judgment that witness had intentionally given false evidence and that it is expedient in the interests of justice that he should be prosecuted. 17. 16. Furthermore, the Supreme Court in the matter of Mohammad Ibrahim vs. B. Rama Rao, AIR 1976 SC 1822 held that the Court must form prima facie opinion at the time of judgment that witness had intentionally given false evidence and that it is expedient in the interests of justice that he should be prosecuted. 17. In the matter of Shabir Hussain Bholu vs. State of Maharashtra, AIR 1963 SC 816 their Lordships of the Supreme Court have held that if no opinion is recorded at the time of judgment, no action can be taken subsequently and observed as under: “Where the Court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interests of justice to make a complaint, it has a discretion not to make a complaint.” 18. Thus, from the provisions contained in Section 344(1) of the Cr.P.C. as well as the aforesaid pronouncements rendered by their Lordships of the Supreme Court, it is quite vivid that for initiating proceedings under Section 344(1) of the Cr.P.C. the Court shall, at the time of delivery of judgment, express 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. Mere giving false evidence in a proceeding is not sufficient to initiate action under sub-section (1) of Section 344 and it would not be advisable, nor would it be feasible to launch proceedings against all such witnesses in all such cases. It is only when the Court is of opinion that a witness has “willfully or knowingly” given false evidence that the Court can consider whether action against him is necessary in the interest of justice. The expression of opinion in the basic judgment that the witness “had knowingly or willfully given false evidence or had fabricated false evidence” is sine qua non for initiating further action under Section 344(1) of the Cr.P.C. in absence thereof the proceedings are liable to be set aside. 19. The expression of opinion in the basic judgment that the witness “had knowingly or willfully given false evidence or had fabricated false evidence” is sine qua non for initiating further action under Section 344(1) of the Cr.P.C. in absence thereof the proceedings are liable to be set aside. 19. Reverting to the facts of the case finally in the light of the provisions contained in Section 344(1) of the Cr.P.C. and the aforesaid pronouncements of the Supreme Court (supra), it is quite vivid that in the instant case, the learned Special Judge has only mentioned that an application has been filed on behalf of the prosecution in paragraph 11 of its judgment and did not render any specific finding that the petitioner has willfully or knowingly given false evidence which is sine qua non for initiating proceeding under Section 344(1) of the Cr.P.C. The Supreme Court in Shabir Hussain Bholu (supra) has clearly held that it has the discretion even to make complaint or not to make complaint. Even otherwise, there is no objective satisfaction recorded by the learned Special Judge that it is expedient in the interest of justice to initiate action against the petitioner. 20. In that view of the matter, the direction issued by the learned Special Judge to register a fresh case against the petitioner and the subsequent case registered being MJC No. 59/2018 in the Court of Special Judge under the Act of 1989, Bilaspur, is hereby quashed. 21. The petition is allowed to the extent indicated herein-above.