Andhra HC (Pre-Telangana)
Vidadala Maruthi Hari Prasad Rao Alias ... vs Special Judge For Spe And Acb Cases And ... on 19 October, 2006
Equivalent citations: 2007CRILJ710
JUDGMENT Gopalakrishna Tamada, J.
1. This appeal is directed against the complaint filed by the learned Special Judge for SPE and ACB Cases, Vijayawada, under Section 340 read with Section 195(1)(b) Cr.P.C., which was registered as C.C. No. 472 of 2001 on the file of the V- Metropolitan Magistrate, Vijayawada, for punishing the appellant-accused of the offence under Section 193 of I.P.C.
2. Brief facts of the case are that the appellant was the decoy and was examined as P.W.1 in C.C. No. 11 of 1996 on the file of the Court of the Special Judge for SPE and ACB Cases, Vijayawada, and at his instance a trap has been arranged and in the alleged trap one Kethavath Kasana Naik @ Kasana (accused-officer in the said case) was charged for the offence under Sections 7, 13 (1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act'). It appears immediately after the trap, Section 164 Cr.P.C. statement of the appellant-Ex.P6 was recorded by the learned VIII Metropolitan Magistrate, Vijayawada. However, as the appellant while giving evidence as P.W.1 deposed contrary to what he has stated in Ex.P6 statement, the learned Special Judge for SPE and ACB Cases, Vijayawada observed that the appellant has committed an offence under Section 193 I.P.C. and thus made a complaint under Section 340 read with Section 195(1)(b) Cr.P.C., which was numbered as C.C.472 of 2001 on the file of the V Metropolitan Magistrate, Vijayawada. Aggrieved by the same, the appellant filed the present appeal.
3. Heard Sri T.Balreddy, learned Senior Counsel for the appellant and Sri V. Ravikiran Rao, Standing Counsel for SPE and ACB Cases.
4. The first submission of the learned Senior Counsel for the appellant is that the complaint filed by the learned Special Judge for SPE and ACB Cases against the appellant is without holding any inquiry as provided for under Section 340 of Cr.P.C. and thus the complaint is not maintainable. The second submission of the learned Senior Counsel for the appellant is that the appellant did not speak any falsehood during the course of evidence and may be due to paucity of time there is some deviation from what he has stated in his Ex.P6 statement and the same cannot be termed to be an offence under Section 193 of I.P.C. The third submission of the learned Senior Counsel for the appellant is that the Special Judge has given a finding holding that the appellant is guilty of an offence under Section 193 of I.P.C. and thus he prejudged the issue, which may prejudice his case during the course of trial.
5. On the other hand, the learned Standing Counsel for SPE and ACB cases while opposing the aforesaid submissions contended that the inquiry contemplated under Section 340 of Cr.P.C. is only directory but not mandatory and it is not as if in every case where a complaint is made by the Presiding Officer a preliminary inquiry shall be made. He further contended that having set the law in motion the appellant had given a total go by to his earlier version on account of which only the accused-officer in C.C. No. 11 of 1996 was acquitted. According to him, had the appellant stuck to his earlier version recorded by the Magistrate in Ex.P6 probably the accused-officer would have been found guilty and the said deviation only made the Special Judge to come to the conclusion that the accused-officer in C.C. No. 11 of 1996 is not guilty of the offence. He further contended that if at all the Special Judge has made any observations about the guilt of the appellant herein those observations can as well be expunged from the judgment and there is no necessity to allow the appeal and set aside the entire complaint.
6. In the light of the aforesaid submissions, it is necessary to refer to Section 340 of Cr.P.C. Chapter XXVI of the Code of Criminal Procedure deals with provisions as to offences affecting the administration of justice and Section 340 of Cr.P.C. deals with the procedure in cases mentioned in Section 195 Cr.P.C. and the same reads as under:
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 the opinion that it is expedient in the interest 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. (2) x x x (3) x x x
(a) x x x
(b) x x x (4) x x x
7. From the above provision of law, it is clear that when it appears to the Court that an offence referred to in Sub-section (1) of Section 195 of Cr.P.C. said to have been committed or in relation to a proceeding in that Court in respect of a document produced or given in evidence in a proceeding in that Court, the Court may after such preliminary inquiry may do the acts mentioned therein. From the said wording it cannot be said that invariably the Court has to hold an inquiry before making a complaint. It may or may not hold the said preliminary inquiry. Hence, the first submission of the learned Senior Counsel for the appellant that the complaint made by the Special Judge is without inquiry is baseless.
8. From the above provision of law, it is also clear that it is only when it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, then only the Court can make a complaint. It is not as a matter of course that as and when the witnesses do not support the case of the prosecution the prosecution for perjury should be sanctioned by the Courts. It is only in those cases where the alleged perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing of false affidavit is an evil, which must be effectively curbed with a strong hand, but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very object. Because there is some inaccuracy in the statement, which may be innocent or immaterial, the Courts should not react and make a complaint for the offence under Section 195 as provided for under Section 340 of Cr.P.C.
9. In the instant case, no doubt, Section 164 of Cr.P.C. statement of the appellant-Ex.P6 was recorded by the Magistrate on 08.09.1995, wherein he has stated that the accused-officer demanded an amount of Rs. 300/- as bribe for issuance of the cheque and when the appellant expressed his inability to pay the said sum, the accused-officer reduced his demand for Rs. 200/- on 28.08.1995 and on 30.08.1995 the accused-officer further demanded and accepted the reduced bribe amount of Rs. 200/- from him. However, during the course of his evidence, the appellant has stated that when he offered an amount of Rs. 200/-, the accused-officer told him that it is not necessary and then he requested him to receive the said amount and that the accused-officer received Rs. 200/- with his left hand, counted them and put it in his shirt pocket. No doubt, there is deviation in the evidence of the appellant with that of his statement recorded under Section 164 Cr.P.C. by the Magistrate. But it must be borne in mind that Section 164 of Cr.P.C. statement of the appellant (Ex.P6) was recorded on 08.09.1995, whereas the appellant was examined in Court on 01.04.1999 i.e., after lapse of about four years. From the above, it cannot be said that there is prima facie case of deliberate falsehood on a matter of substance and the Court below should be satisfied that there is reasonable foundation for the said charge. Simply because there is some inaccuracy in the 164 Cr.P.C. statement, it cannot be said that the appellant deliberately and consciously has given a go by to his earlier statement.
10. Another aspect, which is weighing with the mind of this Court is the long lapse of time of more than 11 years which occurred since the date of the offence. The alleged trap was conducted on 30.08.1995; judgment of the Special Judge for SPE and ACB Cases in C.C. No. 11 of 1996 was delivered on 19.02.2000 and the complaint was lodged which was numbered as C.C. No. 472 of 2001. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case, this long delay also militates against expediency of prosecution. In the light of this discussion, this Court is of the view that the third submission urged by the learned Senior Counsel for the appellant need not be answered.
11. For the aforementioned reasons, this Court is of the view that the complaint made by the learned Special Judge for SPE and ACB Cases, Vijayawada, against the appellant in C.C. No. 472 of 2001 on the file of the V-Metropolitan Magistrate, Vijayawada, is liable to be set aside and is accordingly set aside.
12. In the result, the Criminal Appeal is allowed.