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2022 DIGILAW 981 (ALL)

Puttan @ Shivpal Singh v. State of U. P.

2022-06-29

SADHNA RANI (THAKUR)

body2022
JUDGMENT : 1. Present criminal revision has been filed against the order dated 27.02.2019 passed by the District and Sessions Judge, Auraiya in Session Trial No.57 of 2019 (State Vs. Puttan Singh @ Sripal) related to Misc. Case No.130 of 2016 under Sections 193 & 195 of I.P.C., P.S.-Ajeetmal, District Auraiya. 2. By the impugned order, the charge under sections 193 & 195 I.P.C. was framed against the revisionist. 3. As per facts of the case, Additional Sessions Judge, Auraiya passed the judgment and order dated 11.08.2016 in S.T. No.113 of 2005 (State Vs. Machlu Dohre and others) arising out of Case Crime No. 95 of 2005, under Sections 304, 336 I.P.C., P.S. Ajeetmal, District Auraiya whereby the accused persons were convicted under Sections 304 & 336 I.P.C. and were sentenced accordingly. On 12.08.2016 in the light of above judgment dated 11.08.2016 Misc. Case No.130 of 2016 (State Vs. Puttan Singh @ Sripal) under Section 340 Cr.P.C. was registered against witness Puttan Singh s/o Hardev Singh and a notice was issued to him mentioning the facts that in his examination-in-chief as P.W.-2 in S.T. No. 113 of 2005 above he had supported the prosecution case, while in the cross-examination recorded after two years of the examination-in-chief, he did not support the prosecution version, thus in the cross-examination he was declared hostile and the State Counsel was permitted to cross-examine him. The court concerned found that the statement of the witness in the examination-in-chief and in the cross-examination was contradictory, so the witness Puttan Singh was ordered to appear in the Court on 16.08.2016 and to reply as to why not a proceeding be started against him for giving contradictory/false evidence. 4. Even after the service of notice Puttan Singh did not appear in the court on 16.08.2016 and 22.08.2016, so non-bailable warrant was issued against him. On 26.08.2016 also, Puttan Singh remained absent and again a non-bailable warrant was issued against him fixing the date 31.08.2016. On 31.08.2016, Puttan Singh appeared but did not file any reply/ objection, so on the same date a complaint under Section 193 and 195 of I.P.C. was filed by Additional District and Sessions Judge against him in the court of Chief Judicial Magistrate. 5. On the same date, the Chief Judicial Magistrate registered this complaint. On 31.08.2016, Puttan Singh appeared but did not file any reply/ objection, so on the same date a complaint under Section 193 and 195 of I.P.C. was filed by Additional District and Sessions Judge against him in the court of Chief Judicial Magistrate. 5. On the same date, the Chief Judicial Magistrate registered this complaint. As the case was triable by the court of Sessions, warrant under Section 209 Cr.P.C. was made and after providing copies, the case was fixed for committal on 21.09.2016. Meanwhile, Misc. Application No.75 of 2016 was moved by Puttan Singh. The file was sent to the court of Additional Sessions Judge, from there Puttan Singh was released on bail. On 09.01.2019, the Chief Judicial Magistrate found the case to be triable by court of Sessions and, thus, committed the case to the Court of Sessions. File was sent to the Sessions Court. On 27.02.2019, learned Sessions Judge, Auraiya after hearing the parties framed charge against Puttan Singh under Sections 193 and 195 of I.P.C. 6. Against this order of framing charge, the present revision has been preferred wherein it is argued by the learned counsel for the revisionist that a show-cause notice under Section 340 Cr.P.C., calling explanation from the revisionist fixing next date on 22.08.2016 was issued and when revisionist did not appear on the date fixed, non-bailable warrant was issued and when on 31.08.2016 he appeared before the court he was taken into judicial custody. Thereafter, show cause notice under Section 193 and 195 Cr.P.C. was served and case was directed to be transferred to the Judicial Magistrate, Auraiya for compliance of the order. The Chief Judicial Magistrate registered the complaint and remanded the accused under Section 209 Cr.P.C. Meanwhile, the revisionist was released on bail. The case was committed to the court of Sessions wherein the charge was framed. 7. It is further argued that from perusal of order dated 31.08.2016, it is clear that on 31.08.2016 when the accused appeared before the court he was taken into custody without affording an opportunity of being heard against the show-cause notice. The case was committed to the court of Sessions wherein the charge was framed. 7. It is further argued that from perusal of order dated 31.08.2016, it is clear that on 31.08.2016 when the accused appeared before the court he was taken into custody without affording an opportunity of being heard against the show-cause notice. Without conducting any inquiry under Section 340 Cr.P.C., the accused was straightway called upon to face a trial under Sections 193 and 195 I.P.C., which is against the mandate of Section 340 read with Section 195 Cr.P.C. As no opportunity of being heard was provided to the revisionist and no inquiry was held by the concerned court, hence, the entire proceeding being against the mandate of Section 340 of Cr.P.C., is liable to be set aside and consequently the order of framing charge dated 27.02.2019 is also liable to be set aside. It is also argued that the provision of Section 195 Cr.P.C. are mandatory and no court has jurisdiction to take cognizance of any of the offence mentioned therein unless there is a complaint in writing as required under that Section. For Section 195 Cr.P.C., sanction of the court is must and sanction should be granted only in those cases where the perjury appeared to be deliberate and conscious and the conviction is reasonable/probable and because on the date fixed i.e. 31.08.2016 when revisionist appeared before the court, without letting him offer any explanation he was taken into judicial custody, a complaint was filed against him and he was sent to the court of C.J.M. and on the same date a complaint was registered as Case No. 1934 of 2016 (Additional District and Sessions Judge Vs. Puttan Singh Others). A warrant under Section 209 Cr.P.C. was prepared and the orders for serving the copies and committal to the court of Sessions were made. Thus, without any reply to the show cause notice the accused was taken into custody without holding inquiry under Section 340 Cr.P.C. read with Section 195 Cr.P.C. which mandate prior sanction of the prosecution against the persons, who have been facing charges under Sections 193 to 196 I.P.C. Thus, the entire proceedings initiated against the revisionist are bad in the eyes of law and are liable to be quashed. 8. In this regard, it is apposite to mention Section 195 of Cr.P.C. and also Section 340 of Cr.P.C. “195. 8. In this regard, it is apposite to mention Section 195 of Cr.P.C. and also Section 340 of Cr.P.C. “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), [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, or of some other Court to which that Court is subordinate]. 340. 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.” 9. Thus, as per Section 195 of Cr.P.C. if any offence under Section 193 to 196 of I.P.C. is alleged to have been committed in relation to any proceedings in any court, a complaint in writing of that court or by such officer of the court as that court has authorized in writing in this behalf or some other court to which that court is subordinate, is to be filed. 10. As per Section 340 of Cr.P.C. when the court is of the 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 Cr.P.C., the court may after such preliminary inquiry, make a complaint in writing. 11. Thus there is a provision that court may make a preliminary inquiry and accordingly it is argued by the learned counsel for the revisionist that this provision has also not been followed and no inquiry has been made by the officer concerned and without hearing him or without offering an opportunity of submitting an explanation he has been sent alongwith complaint under Section 340 of Cr.P.C. to the court of Judicial Magistrate. 12. 12. In this connection, learned counsel for the revisionist has drawn the attention of the court towards the judgment N.S. Nandiesha Reddy Vs. Kavitha Mahesh, 2021 LawSuit (SC) 398 wherein in paragraph 14 of this judgment the Apex Court referred the case of KTMS Mohammad and Another vs. Union of India, 1992 3 SCC 178 therein it is observed that- “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. On the basis of this legal position the Apex Court as per facts of that case reached at the conclusion that the appellant was prosecuted without the findings being recorded regarding deliberate or intentional falsehood, hence his prosecution cannot be sustained. 14. Further, the Apex Court observed that the position of law, which is well established, is that even in the case where the Court comes to the conclusion on the aspect of intentional false evidence, still the Court has to form an opinion, whether it is expedient in the interest of justice to initiate an inquiry into the offence of false evidence, having regard to the overall factual matrix as well as the probable consequences of such prosecution. The Court must be satisfied that such an inquiry is required in the interest of justice and is appropriate in the facts of the case. 15. On the basis of above legal proposition, it is argued by the counsel for the revisionist that neither the revisionist was provided an opportunity to answer a notice nor an enquiry was held nor the court recorded its satisfaction regarding the commission of an offence of intentional false evidence, hence, a complaint without such inquiry or recording such satisfaction and framing a charge therein are against the law, and also against the natural justice, so the order regarding framing of charge is required to be set aside. 16. 16. Learned A.G.A. refuted the prayer and submitted that if the revisionist was aggrieved by the order dated 31.08.2016 then he had an opportunity only to file an appeal under Section 341 Cr.P.C. but no appeal was filed by him then and now after three years of passing the order dated 31.08.2016 when the charge is framed by the Sessions Court on 27.02.2019 then by this revision the charge is being challenged and even if this order of framing charge is set aside by allowing this revision then also the order dated 31.08.2016 shall remain intact, hence, the proper course before revisionist was to initiate proceedings not against the order dated 27.02.2019 of framing charge, rather he had to challenge the order dated 31.08.2016 by which he is said to have not been granted an opportunity of filing reply to the notice for starting proceedings under Section 340 Cr.P.C. and an order was made to file a complaint. 17. Though, the objection of the learned A.G.A. has some force that the order against which the remedy is indirectly being seeked by the revisionist is order dated 31.08.2016. As the revisionist did not challenge that order within time so now by way of challenging the order dated 27.02.2019 regarding framing of charge indirectly the revisionist has seeked remedy against the order dated 31.08.2016. 18. If we go through the above mentioned Sections 340 and 195 of Cr.P.C. as per Section 340 of Cr.P.C. before filing a complaint the court may hold a preliminary inquiry to reach to the conclusion that any offence referred to in sub-clause 3 (1) of Section 195 of I.P.C. appears to have been committed, if after such preliminary inquiry the court thinks necessary, a complaint in writing can be made. 19. As per the observations of the Apex Court in the above mentioned judgments it is necessary for the Court before reaching at a conclusion to file a complaint to established that the deponent has Intentionally given a false statement at any stage of the judicial proceedings and to establish the fact that it is expedient in the interest of justice to initiate an inquiry and thus the court has to record it's satisfaction regarding deliberate or intentional falsehood and without recording such finding the prosecution cannot be sustained. 20. 20. In the present case also, if we go through the order dated 31.08.2016 when the accused/ revisionist appeared before the court of Additional District and Sessions Judge without any clarification or reply to the notice, the court neither asked him to file any reply nor made any inquiry, it also did not record its satisfaction that the revisionist has intentionally given a false statement, thus, holding no inquiry and not recording any satisfaction regarding deliberate or intentional falsehood of the statement of the revisionist, on the basis of above legal position, no prosecution against the revision can be sustained and when no prosecution can be sustained then no question of registration of any complaint, committing the case to the court of Sessions and framing charge therein arises. Otherwise also, it is law of natural justice that before initiating a proceeding against a person an opportunity of being heard be provided to him, which the revisionist could not get in the present case, hence, the revision deserves to be allowed. ORDER 21. Revision is allowed. Impugned order of framing charge dated 27.02.2019 is set aside. At the same, order dated 31.08.2016 is also set aside and file is remanded back to the court concerned to provide an opportunity to Puttan Singh (revisionist) to file his reply to the notice issued to him and to hold an inquiry to record a satisfaction of the court and to proceed further with the matter, accordingly.