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2023 DIGILAW 1694 (ALL)

Ram Kumar v. State of U. P.

2023-07-14

GAJENDRA KUMAR

body2023
JUDGMENT : 1. Heard Mr. Satya Prakash Chaturvedi, learned counsel for the applicant and learned A.G.A. for the State. Perused the record. 2. This application under Section 482 Cr.P.C. has been filed by applicant to quash as well as to stay the effect and operation of the entire proceedings of Criminal Misc. Case No.1 of 2023 (State of U.P. Vs. Vijay Singh and others) along with cognizance cognizance order dated 12.01.2023 and notice dated 18.5.2023 arising out of judgement and order dated 03.11.2022 having S.T. No.38/2018 (State vs. Narayandas Kushwaha and another), under Section 344 Cr.P.C., Police Station Nadigaon, District Jalaun, peding before the learned Special Judge SC/ST Act, Jalaun at Orai. 3. Brief facts of the case is that the applicant is government teacher posted in a Primary School. The father of the applicant namely Durga Prasad lodged a first information report against Narayan Das Kushwaha, Suratan Singh and Lakhan Singh under section 306 IPC and 3(2) (V) SC/ST Act, Police Station Nadigaon, District Jalaun on 20.10.2018. Applicant is the writer of the tahrir spoken by his father and villagers. 4. Learned counsel for the applicants submits that applicant was informed through mobile phone that his mother committed suicide infront of the house of Narayan Das Kushwaha in the night. It is also submitted that the charge sheet in the matter was submitted and statements were recorded by the concerned investigating officer. It is also submitted that the court after examining the entire facts of the case did not found the accused guilty and the accused were exonerated. It is further submitted that the applicant has been alleged of providing false evidence to the court and has been issued a show cause notice under section 344 Cr.P.C. Submission is that the applicant is merely a formal witness of the incident. He was neither present on the spot on the date and place of occurrence nor he is an eye witness of the alleged incident. Submission is that the applicant has only written a tahrir that was spoken by his father Durga Prasad and villagers. Contention is that if the proceedings against the applicant are allowed to go on it will result in shear abuse of process of law. 5. Learned counsel for the applicant in order to demonstrate the truthfulness upon his submissions has placed reliance upon following judgements :- (i) Lalit Kumar Sharma and Anr. Vs. Contention is that if the proceedings against the applicant are allowed to go on it will result in shear abuse of process of law. 5. Learned counsel for the applicant in order to demonstrate the truthfulness upon his submissions has placed reliance upon following judgements :- (i) Lalit Kumar Sharma and Anr. Vs. State of U.P. 2009 LawSuit(All) 2058 (ii) Sanjay Baburao Gitte Vs. State of Maharashtra 2017 LawSuit(Bom) 2798 6. Per contra, learned A.G.A. has opposed the submissions made by the counsel for the applicant but could not dispute the aforesaid facts. 7. The Apex Court in the case of Mahila Vinod Kumari v. State of Madhya Pradesh [2008] 10 S.C.R. 869 has laid down the guidelines regarding summoning of accused under section 344 Cr.P.C. : “2.1. The purpose of enacting Section 344, Cr.P.C. appears to be further arm the Court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to the courts to take recourse to Section 340(1) in cases in which they are failed to take action under Section 344 Cr.P.C” 2.2. For exercising the powers under s.344/ the Code 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 so punished. All these conditions arc mandatory. The object of the provision is to deal with the evil of perjury in a summary way. [Narayanswamy v. State of Muharashtra, (1971) 2 SCC 182 ] 2.3. All these conditions arc mandatory. The object of the provision is to deal with the evil of perjury in a summary way. [Narayanswamy v. State of Muharashtra, (1971) 2 SCC 182 ] 2.3. The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done.” 8. Learned trial court while issuing notice to the applicant has passed the order dated 03.11.2022. Relevant portion of the order reads as under :- ^^vfHk;kstu lk{khx.k ihŒMCywŒ02 fot; flag] ihŒ MCywŒ03 lksoju flag] ihŒMCywŒ04 jkedqekj] ihŒ MCyw05 /kesZUnz flag }kjk foospd dks fn, x, /kjk 161 nŒizŒlaŒ ds c;ku ds fo:) U;k;ky; esa lk{; izLrqr dh x;h gSA vr% lk{khx.k mijksDr ds fo:) vkijkf/kd okn vurxZr /kjk 344 nŒizŒlaŒ iathd`r dj dkj.k crkvks uksfVl tkjh fd;k tk;s fd D;ksa u U;k;ky; esa feF;k lk{; nsus gsrq nafMr fd;k tk;s\^^ 9. Considering the entire facts and circumstances of the case as well as the statements of witnesses it does not appear that the applicant had willfully and knowingly given false statements. He was merely a tahrir writer. He has not even seen the alleged incident. From perusal of the impugned order, it is apparent that condition no.1 and 2 have not been complied with while passing the impugned order. No opinion to the effect that witnesses concerned before it has either intentionally given false evidence or fabricated such evidence nor that the court has come to the conclusion that in the interest of justice the witnesses concerned should be punished summarily by it for the offence which appears to have been committed by the witnesses. Therefore both the condition no.1 and 2 as given in the judgement of Mahila Vinod Kumari v. State of Madhya Pradesh (supra) laid down have not been complied with. Thus, the impugned order is not sustainable in the eyes of law. The application therefore deserves to be allowed. 10. The application therefore is allowed and the impugned cognizance order dated 12.01.2023 and notice dated 18.5.2023 as well as entire proceedings of Criminal Misc. Case No.1 of 2023, under section 344 Cr.P.C., Police Station Nadigaon, District Jalaun, arising out of Sessions Trial No.38 of 2018 (State Vs. Narayandas Kushwaha and another) is hereby set-aside.