JUDGMENT : Ajay Bhanot, J. 1. This appeal arises out of judgment dated 26.02.1988 rendered by the learned trial court in Criminal Misc. Case No. 1 of 1987 (State Vs Satish Kumar Jain) under Section 344 Cr.P.C. By the impugned judgment the learned trial court has convicted the appellant and sentenced him one month rigorous imprisonment. 2. The brief facts of the case are these; An FIR was got registered under Sections 147, 148, 307/149 and 426 IPC. The appellant was the first informant in the aforesaid case. In pursuance of the FIR an investigation was set on foot which resulted in the chargesheet being filed against the accused persons in the said case. The accused persons were charged and the trial commenced. The appellant appeared as a prosecution witness before the trial court and made contradictory statements regarding the identity of the accused and their criminal intent. The accused persons were acquitted by the trial court. The trial court after acquitting the accused persons in the said trial took out proceedings against the appellant under Section 344 Cr.P.C. for giving false evidence during the trial. 3. Shri Subir lal, learned counsel holding brief of Shri Swetashwa Agarwal for the appellant submits that the conditions precedent for convicting the applicant under Section 344 are not satisfied inasmuch as the applicant did not knowingly or wilfully gave any false evidence. There was a gap of three years between the examination in chief and the cross examination. There was a memory lapse which resulted in the aforesaid inconsistencies in the testimony of the appellant. The applicant was not confronted with material particulars of the contradictions in his statement which led the court to conclude that the latter statement was deliberate falsehood. The appellant was not declared hostile by the prosecution. 4. Shri Rishi Chaddha, learned AGA contends that on account of the variation in the statement under cross examination and the examination in chief, the court was left with no option but to draw proceedings under Section 344 Cr.P.C. 5. Heard Sri Subir Lal, learned counsel holding brief of Sri Swetashwa Agarwal, learned counsel for the appellant and Shri Rishi Chaddha, learned AGA for the State. 6. The examination in chief of the appellant before the trial court was conducted on 01.03.1984. Heard Sri Subir Lal, learned counsel holding brief of Sri Swetashwa Agarwal, learned counsel for the appellant and Shri Rishi Chaddha, learned AGA for the State. 6. The examination in chief of the appellant before the trial court was conducted on 01.03.1984. In the examination in chief the appellant stated that he had witnessed the incident and named Chinoti Ram, Jagannath, Pinnu, Pappu and three or four others as the principal offenders who assaulted Rahul with lathis and iron rods. He also testified that the said Jagannath was wielding a firearm, and had threatened the injured. Jagannath said that this was the lesson for litigating against accused persons. In the meantime Ambika Prasad caught hold of Chinoti Ram’s hand resulted in discharge of the firearm causing injuries to Ambika Prasad. 7. The appellant was cross examined three years later on 06.08.1987. Under cross examination, the appellant deposed that the injured Rahul, Ambika Prasad, Akhilesh were not carrying any arms. He had not seen any injuries on the person of Chinoti Ram and others. Further, under cross examination he stated that he could not identify Pappu and Pinnu, or any accused persons by their name and parentage. None of the accused persons had the intention to cause any injury or commit the murder. There was some scuffle between the parties in which some persons got injured. 8. The impugned judgment records that the trial court had confronted the accused person that his earlier statement given in the examination in chief contradicted his version under cross examination. According to the impugned judgment no convincing explanation was forthcoming. It is noteworthy, the details of the aforesaid confrontation have not been extracted in the judgment. 9. Moreover, the learned trial court neglected to consider some critical aspects of the matter. Firstly, the victim had given the statement under examination in chief, three years prior to the examination. The evidence in such situation can be lost to memory. Confrontation of the witness with his previous statements will fall within the ambit of due procedure under Section 344 CrPC only if these prerequisites are satisfied. The testimony under examination in chief and cross examination are duly read out and the contradictions in the said statements are squarely pointed out to the accused. Confrontation of the witness with his previous statements will fall within the ambit of due procedure under Section 344 CrPC only if these prerequisites are satisfied. The testimony under examination in chief and cross examination are duly read out and the contradictions in the said statements are squarely pointed out to the accused. Defence of lapses in memory due to delays in the examinations which resulted in the contradictions have to be ruled out before a finding of wilful intent to give false evidence is made. From the record it appears that the said procedure was not adopted by the trial court. 10. Section 344 CrPC contemplates prosecution of the witness only if the said witness has knowingly or wilfully given false evidence. Evidence becomes false only if the witness is duly confronted not only with material contradictions in the manner aforesaid and the ingredients of wilfully making false statements are present. With passage of time there could be loss of memory. In such situations contradictions may result from memory lapse and not wilful intent. The witness in situations has to be given time and opportunity to refresh his memory. These aspects of fair procedure were absent in the instant proceedings. The mens rea to give a false statement could not be established by lawful evidence and adopting a procedure known to law. 11. Section 344 CrPC is summary in procedure but penal in consequence. Adherence to norms of processual fairness in these proceedings is mandatory. The departure from such established procedure of law is not a curable defect but had a vitiating act. The impugned judgment is unsustainable in law for the above said reasons. 12. The narrative shall also be fortified by some authorities in point. The Chattisgarh High Court in D.R. Thakur S/o Late Shri Johan Thakur vs. State of Chhattisgarh through District Magistrate, Kabirdham, Distt. Kabirdham C.G., while examining the scope of knowingly and wilfully giving false evidence held as under: "6. Chapter 36 of the Cr.P.C. provides provisions with regard to the offences effecting the administration of justice and to preserve its decorum and to maintain its dignity. Kabirdham C.G., while examining the scope of knowingly and wilfully giving false evidence held as under: "6. Chapter 36 of the Cr.P.C. provides provisions with regard to the offences effecting the administration of justice and to preserve its decorum and to maintain its dignity. The condition precedent for the exercise of power under Section 344 of Cr.P.C. requires that the at the time of delivering judgment or final order the witness appearing before it has knowingly or willfully given false evidence or has fabricated false evidence with the intention that such evidence should be used in such proceeding, and that the Court is satisfied that it is necessary and expedient and in the interest of justice to try him summarily for such offence. Therefore, mens rea is essential ingredient to examine real facts and whether the witness had knowingly or willfully given such evidence. 6. Applying the aforesaid parameters in the instant case, it can be said that the evidence was given by the petitioner as prosecution witness No.2 before the trial Court on 28.02.2013 to prove the identification memo Ex.P-3. The petitioner has categorically deposed that the complainant has identified the iron rods before him and further, in the cross-examination nothing was brought on record in this regard and even the witness was not declared hostile by the prosecution. Therefore, only because of some infirmity in the statement, it cannot be held that the witness knowingly or willfully had given the false evidence." 13. The Bombay High Court in Shri Manikrao s/o Shivram Wagh vs. The State of Maharashtra while examining the scope of Section 344 CrPC held as under: “COMPLIANCE OF PROCEDURE : 08] When a person comes to the Courts and offers himself as a witness, it is expected that he will speak truth as per his understanding. In a criminal prosecution, evidence of prosecution witness plays important role because his evidence is one of the determining factor for deciding the guilt. At the same time, law does not compel a witness to depose particular fact only. Before expressing any opinion on merits, something needs to be said about procedural aspect. 09] Broadly, there are two remedies available when a person commits perjury. One is under Section 340 and another is under 344 of Cr.P.C. They are included under the Chapter XXVI "PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE". Before expressing any opinion on merits, something needs to be said about procedural aspect. 09] Broadly, there are two remedies available when a person commits perjury. One is under Section 340 and another is under 344 of Cr.P.C. They are included under the Chapter XXVI "PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE". If we read both the provisions, we may find that scope of Section 340 is much wider than the scope of Section 340 of Cr.P.C. When remedy under Section 344 of Cr.P.C. is resorted, summary inquiry is contemplated whereas wordings of Section 340 of Cr.P.C. does not say so. Court seized of the matter exercises power under Section 344 of Cr.P.C. at the time of delivery of judgment/final order. Whereas, it is not so under Section 340 of Cr.P.C. Furthermore, Court seized of the matter only punishes the perjurer under Section 344 of Cr.P.C. Whereas, Court seized of the matter conducts an inquiry, lodges a complaint and some different court tries the perjurer and punishes him under Section 193 or other sections of I.P.C. One more distinguishable factor is punishment. It is prescribed in Section 344 of Cr.P.C. itself. This is a rare section in Code of Criminal Procedure which lay down the punishment. 10] This attempt is made to make the stakeholders aware about difference in procedure in two remedies. Learned Special Judge has decided to take recourse to the power under Section 344 of Cr. P .C. On minute reading, we find the following requirements of Section 344 of Cr.P.C. - (a) the witness had given false evidence, (b) he gave it willfully/knowingly, (c) he gave it with intention of using it in such proceeding, (d) Court forms an opinion about giving of false evidence by such witness, (e) it is necessary and expedient in the interest of justice to try the witness summarily. On fulfilling above conditions, the Court should - (a) give reasonable opportunity to show cause against possible conviction. (b) then sentence him appropriately. SUBSTANTIVE LAW : 11] Always there is tendency to confuse in between the two different procedures laid down under Section 340 and under Section 344 of Cr.P.C. There is also tendency to confuse oneself on the question of sentence. (b) then sentence him appropriately. SUBSTANTIVE LAW : 11] Always there is tendency to confuse in between the two different procedures laid down under Section 340 and under Section 344 of Cr.P.C. There is also tendency to confuse oneself on the question of sentence. There are various offences those can be inquired under Section 340 of Cr.P.C. read with Section 195 of Cr.P.C., one of them is giving false evidence defined under Section 193 of Cr.P.C. There is punishment up to seven years and unrestricted fine amount. Whereas, Section 344 of Cr.P.C. (which is procedural as well as substantive in nature) lays down three months imprisonment or Rs.500/-fine amount or with both. 12] Before commenting on merits, we must appreciate the courage shown by learned Special Judge in proceeding under Section 344 of Cr.P.C. against this appellant. But, the issue does not stops there. There should be restraint on emotions in exercising with such power and almost precaution is to be taken in compliance of procedure and satisfaction of substantive law. Otherwise, there is a tendency of overlooking procedural requirement, during the zeal to punish perjurer. ..........… 19] The true test for determining whether statement is false or not 'is whether two statements are contradictory or irreconcilable to each other.' Certainly, the amount can either be paid as an illegal gratification or it can be paid for laying of water pipeline [legitimate purpose]. It cannot be for both the purposes. This test is certainly satisfied. 20] When we tried to satisfy another test of 'willful/knowingly' disclosure, we find that the case fails on this forum. It means, the witness must tell the contrary fact knowingly or willfully. According to evidence, it is a second statement which is false. As discussed above, there is a reason for the appellant to give explanation for payment of Rs.500/-and it being for laying of water pipeline. He gave it as per interaction between him and complainant, Deshmukh. So, we can certainly say that there is some foundation for that. Under such circumstances, it cannot be said that second statement was willful/with knowledge. Learned Special Judge has not considered this aspect. 21] In this background, if we will consider the reasoning for acquitting the accused, Bhusari, we will come to know that learned Special Judge opined that the amount might have been accepted for obtaining water supply. Under such circumstances, it cannot be said that second statement was willful/with knowledge. Learned Special Judge has not considered this aspect. 21] In this background, if we will consider the reasoning for acquitting the accused, Bhusari, we will come to know that learned Special Judge opined that the amount might have been accepted for obtaining water supply. When prosecution adduces evidence, the materials must fall within the definition of "legally accepted evidence". Unless and until legally admissible evidence is produced, prosecution materials cannot be considered. In other words, merely because any accused is acquitted, it does not mean that he has not committed that offence. As said above, failure of the prosecution to examine Lanjewar and Patil is one of the ground for acquittal. It also includes lack of bona fide on the part of complainant, Deshmukh. He was already having a tenement and he feared about cancellation of allotment. On considering the reasons quoted by learned Special Judge while acquitting the accused, Bhusari, learned Special Judge, apart from considering above reasons, also considered probable reason for payment as for laying water pipeline. Learned Special Judge could have discarded the explanation given by this appellant about payment. But, when he has accepted it, then it may not wise to initiate action against him. If it is so, then I do not think that it will be proper to call explanation of present appellant. Admittedly, nothing is produced on record to show that the acquittal of accused, Bhusari, is challenged on behalf of the prosecution. So, on this aspect also, the learned trial Judge has erred. 22] In case of Empror Vs. Bankatram Lacchiram reported in ILR 1904 28 (Bom) 513, the two depositions given after a gap of time were the foundation for initiating action for the perjury. The ratio of this judgment is that the circumstances under which a witness gives answer at a particular point of time and at a later point of time needs to be considered. A witness always deposes by recollecting his memory and belief. It will also be material to consider the evidence as a whole and not the objectionable answers isolately. 23] In case of Empror Vs. A witness always deposes by recollecting his memory and belief. It will also be material to consider the evidence as a whole and not the objectionable answers isolately. 23] In case of Empror Vs. Ningappa Ramappa Kurbar reported in ILR 1942 (Bom) 26, the witness deposed a particular fact in a statement under Section 164 of Criminal Procedure Code, 1898 and deposed a contrary fact before committing Magistrate was the foundation. Only when Court finds later statement to be untrue, then only prosecution can be justified. 24] Similar occasion arose in case of K. K. Gupta Vs. Devkumar Agrawal [2014 ALL MR (Cri.) 3869]. The appellant made a particular statement when his statement was recorded by Income Tax Officer at the time of search. Whereas at a later point of time while submitting Income Tax Return, he claimed ownership over certain articles. There was a private complaint for perjury. The appellant was acquitted for the reason that mere contradiction in two statements is not sufficient, but prosecution need to prove falsehood. 25] On the other hand, learned Addl. Public Prosecutor relied upon the judgment in case of In Re : Suo Motu Proceedings against R. Karuppan, Advocate [ (2001) 5 SCC 289 ]. One Advocate from Madras made a false complaint about verification of the age of Dr. Justice A.S. Anand in an affidavit. Hon'ble Supreme Court emphasized on decline in moral values and erosion of sanctity of oath. There was a direction to file complaint under Section 193 of Indian Penal Code. 26] There cannot be any doubt that Court being the guarantor and protector of justice delivery system has to be cautious while encouraging truthful evidence. And, whenever the sanctity of oath is being misused for telling lie, the Court has to intervene and to set the law in motion. In case before us, I find that the learned Special Judge was courageous enough to initiate action for perjury, but, he lost sight to the fulfillments of ingredients of giving false evidence. 27] There is one more issue wherein the learned Special Judge has failed. Satisfaction is required at two stages. One is at the time of calling of explanation and second is at the time of final order. The decision to call explanation can be seen from the direction given in the operative order dated 20th June, 2005. 27] There is one more issue wherein the learned Special Judge has failed. Satisfaction is required at two stages. One is at the time of calling of explanation and second is at the time of final order. The decision to call explanation can be seen from the direction given in the operative order dated 20th June, 2005. But, if the entire judgment of acquittal is perused, we do not find any observation why there is a need to proceed against the appellant and that too in the interest of justice. While showing the zeal to proceed for perjury, learned Special Judge has overlooked to this procedure requirement. So also, while convicting the appellant, I do not find any reasoning as to how he arrived at giving false answer knowingly. Merely saying that he gave false answers knowingly is not sufficient unless supported by reasoning. On this count also, the impugned judgment cannot be sustained. 28] For all these reasons, I conclude that the decision cannot be sustained, mainly for the reason of non-fulfillment about the condition as to willful or knowingly giving false answer. It also fails for recording satisfaction for initiating action and supporting the conclusion by giving reasons. So, I am inclined to allow the appeal. Hence order -. (i) The appeal is allowed. (ii) The judgment dated 4th December, 2006 passed in Misc. Criminal Application No.440 of 2005 convicting the appellant under Section 193 of Indian Penal Code is set aside. (iii) Fine if paid, be returned to the appellant. [iv] The appellant is discharged from personal bond and surety bond." 14. The judgments rendered in Shri Manikrao (supra) and D. R. Thakur (supra) are applicable to the facts of this case. The impugned judgment is in the teeth of section 344 of Cr.P.C. and the law laid down in Shri Manikrao (supra) and D. R. Thakur (supra). 15. Moreover, I see merit in the submission of learned counsel for the appellant that the appellant has undergone 15 days of imprisonment. The trial court records that the appellant was taken into custody on 26.02.1988. The appellant was enlarged on bail by this Court on 11.03.1988. 16. The appellant has already undergone a major part of the sentence. 17. In this wake also the appeal is liable to be allowed. 18. The order dated 26.02.1988 passed by Additional Sessions Judge, Meerut in Criminal Misc. The appellant was enlarged on bail by this Court on 11.03.1988. 16. The appellant has already undergone a major part of the sentence. 17. In this wake also the appeal is liable to be allowed. 18. The order dated 26.02.1988 passed by Additional Sessions Judge, Meerut in Criminal Misc. Case No. 1 of 1987 convicting the appellant under Section 344 CrPC is set aside. 19. The criminal appeal is allowed.