Gujarat High Court
Koyjibhai Himmatbhai Tadvi vs The State Of Gujarat on 25 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1607 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
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KOYJIBHAI HIMMATBHAI TADVI & ANR.
Versus
THE STATE OF GUJARAT
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Appearance:
ABATED for the Appellant(s) No. 1
MR SHAILESH C PARIKH(583) for the Appellant(s) No. 2
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/09/2025
ORAL JUDGMENT
1. The present Criminal Appeal is under Section 351 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') against the judgment and order of conviction dated 16.09.2004 passed by the learned Additional Sessions Judge, Vadodara in Atrocity Case No.24 of 1998 whereby both the appellants who were the complainant and witnesses in the trial came to be Page 1 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined convicted for the offence punishable under Section 344 of the Cr.P.C. allegedly for giving false evidence.
2. During the course of this appeal, the appellant No.1- Koyjibhai Himmatbhai died on 01.06.2016 who was the original complainant in the Atrocity case, and by an order dated 26.08.2025, the appeal qua appellant no.1 came to be abated. So now, the challenge to the judgment and order of conviction is by appellant no.2- Lakshmanbhai Koyjibhai Tadvi, a witness during the trial.
3. Learned advocate Mr. Shailesh C. Parikh by referring to the impugned order submitted that the learned Additional Sessions Judge, Fast Track Court, Vadodara on 16.09.2004 had passed the order acquitting 25 accused of Atrocity Case No.24 of 1998 considering them as innocent, while the complainant, i.e. the deceased appellant and the present appellant as witness were proceeded with an order, that a Page 2 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined statement be recorded under Section 344 of the Cr.PC of both the witnesses.
4. Learned Advocate Mr. Parikh submitted by referring to the impugned order and statement recorded on the very same date of both the appellants, submitted that the learned Trial Court Judge has failed to follow procedure as prescribed before passing order under Section 344 of the Cr.PC.
5. Learned Advocate Mr. Shailesh C. Parikh has relied upon (1) Narayan Swamy v. The State of Maharashtra AIR (1971) SC 1789 (2) M.M. Pasricha v. The State of Punjab (1978) 1 ILR (P&H) 20 (3) Ambalal Bhavanishanker Upadhyaya v. Rasiklal Manilal Mehta and Others in Criminal Revision Application No.594 of 1986; (4) State of Gujarat v. Ambalal Lalji 2006 (1) GLR 208 (5) Yogendra Dashratlal Shah v. State of Gujarat (2008) 3 GLR 2541 (6) Mahila Vinod Kumari v. State of Madhya Pradesh AIR 2008 SC 2965 (7) Page 3 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined Decision of this Court dated 10.01.2017 in Criminal Appeal No.1495 of 2003 with Criminal Appeal No.1517 of 2003 (Ashwinbhai Ambalal Vyas v. State of Gujarat) (8) Decision of the High Court of Kerala at Ernakulam dated 24.06.2019 in Criminal MC No.1542 of 2019 (Sajan Mathew v. State of Kerala) (9) Decision of Bombay High Court (Nagpur Bench) dated 24.02.2021 in the case of Shriram S/o Nathu Jadhav v. State of Maharashtra reported in (2021) 02 BOM CK 0022 and (10) Shakuntala Shukla v. State of Uttar Pradesh and Another AIR 2021 SC 4384.
6. Referring to the above decision, it is vehemently argued by learned advocate Mr. Parikh that no opportunity had been given by the Trial Court to the appellants which is mandatorily provided by issuance of show cause notice. It is further submitted that the procedure is of summarily trying the accused so that the accused would have an opportunity to explain the evidence as considered by the learned Judge under Page 4 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined Section 344 of the Cr.P.C. Learned advocate Mr. Parikh submitted that accused had to be tried in accordance with Chapter 21 of Cr.P.C which explains the power and procedure to be followed, and more specifically, learned advocate Mr. Parikh has placed reliance on Section 362 of the Cr.P.C to stress upon the need of proceeding against the accused with the trial to be conducted in summons case.
7. Learned advocate Mr. Shailesh C. Parikh submitted that the learned Additional Sessions Judge, Vadodara on the very date of the order under prejudice and biased approach had only asked one statement noting that the appellant had given false evidence and in that circumstances, were made to ask as to what they would like to state, and on that the sentence was ordered under Section 344 of Cr.P.C. It is further submitted that the process adopted by the learned Additional Sessions Judge on the face of the record itself is faulty. Opinion was to be expressed showing Page 5 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined the evidence which can be considered as false or fabricated while the learned Judge has not given any such opportunity, and on the very same day of acquitting the accused in Atrocity case had passed the order under Section 344 of Cr.P.C of simple imprisonment of three months and fine of Rs.500/- with default stipulation that in case of failure to pay the fine, the accused to further undergo simple imprisonment of seven days. Learned advocate Mr. Parikh submitted that the learned trial Court Judge's order becomes erroneous as straight away has passed the order of sentence without even providing an opportunity to the appellant as an accused to explain the evidence which the learned Judge has considered as false.
8. Learned advocate Mr. Shailesh C. Parikh further stated that the issue was with regard to land Survey No.136. The ownership under tenancy right were of the present appellant. The learned Additional Public Prosecutor Page 6 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined who was conducting the trial had moved the trial Court preferring an application-Exhibit 52 where the learned Additional Public Prosecutor has asked for the permission to produce documentary evidence during the course of the trial in the evidence of the present appellant as witness. Learned advocate Mr. Parikh referring the order below Exhibit 52 in the trial of the Atrocity Case No.24 of 1998 submitted that the learned Judge had referred to the copy which were proposed to be produced during the course of trial to prove the ownership of the appellants to the property under dispute, but denied the permission to produce. Learned advocate Mr. Parikh stated that the documents were (i) the certified copy of the order under Section 70(B) of the Tenancy Act passed by the Additional Mamlatdar and Agricultural Tribunal, Waghodia (ii) copy of the Appeal No.81 of 1996 before the learned 6th Extra Assistant Judge (iii) Village Abstract No.6 (iv) the order of the Hon'ble High Court in Special Criminal Application No.275 of 1997 and (v) Page 7 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined Village7/12 Abstract.
9. Learned advocate Mr. Parikh thus, submitted that had the learned trial Court Judge allowed this application- Exhibit 52 which was produced by learned Additional Public Prosecutor, then no such observations of giving false evidence would have been made by the learned Judge. Learned advocate Mr. Parikh submitted that the application was not moved by any individual but by the learned Additional Public Prosecutor who was conducting the trial and inspite of that, strangely the application of the learned Additional Public Prosecutor came to be rejected.
10. It is further submitted by learned advocate Mr. Parikh that had the documents come on record, then the conviction would have followed of the accused where the witnesses would have prima-facie proved the ownership of the property which has been established by the Courts throughout.
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11. Learned advocate Mr. Shailesh C. Parikh further submitted that the filing of various litigation by the complaint ought not to have been made a ground for the prejudicial approach of the trial Court; rather it would have been the duty of the Court to appreciate that the litigants are coming to the Courts for redressal of their dispute since they have faith in judicial system and are not taking law in their hands.
12. The issue which has been primarily raised is about the faulty procedure adopted by the learned trial Court while sentencing the complainant and witness of the Atrocity case.
13. Per Contra contending it to be a procedural aspect, learned Additional Public Prosecutor Ms. Monali Bhatt while referring to the provision of Section 344 of Cr.P.C. submitted that this Court would have to examine the impugned order by the standards as laid down in the case of Narayanswami v. State of Page 9 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined Maharashtra reported in (1971) 2 SCC 182. Learned APP has also referred to the case of Mahila Vinod Kumari v. State of Madhya Pradesh reported in (2008) 8 SCC 34 relevant paragraph on which learned APP has placed reliance is Paragraph 10, which is reproduced hereinafter :-
"10. For exercising the powers under the section 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 are mandatory. [See Narayanswamy v. State of Maharashtra, (1971) 2 SCC 182]."
14. Prior to examining the facts of the matter, it would be appropriate to examine the provision of law, since the main issue raised is the procedural default of the learned trial Court Judge in convicting the appellants. Examination would be whether the procedural default had prejudiced the appellants.
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15. Section 344 of Cr.PC is reproduced herein for ready reference :-
"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 willfully 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.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials. (3) Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section. (4) Where, after any action is initiated under Sub-Section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that Sub-Section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision."
16. As noted in the case of Mahila Vinod Kumari (supra), the first condition which is required to be followed by the Court exercising the power, is to express opinion Page 11 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined that the witness before it has intentionally given false evidence or has fabricated such evidence. It is the submission of the learned APP Ms. Monali Bhatt that the learned trial Court Judge had expressed the opinion with regard to the evidence which the witness and the complainant had intentionally given as false in the judgment impugned,and the learned Judge had come to the conclusion that the complainant as well as the witness were required to proceeded with under Section 344 of Cr.PC.
17. A perusal of the observations in Mahila Vinod Kumari (supra) clarifies that after expressing the opinion of the witness intentionally giving false evidence. Second condition that would follow subsequently for the interest of justice is that the witnesses concerned should be punished summarily for the offences which appear to have been committed by the witnesses . The third condition is that before commencing the summary trial for punishment, the witness must be Page 12 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined given reasonable opportunity of showing cause as to why he should not be punished. Each of the conditions are mandatory in nature . In the instant case, the learned Judge had expressed his opinion in the judgment, while such opinion has not been expressed separately. The learned judge had not given any separate opinion with regard to the evidence which the learned Judge has considered as being intentional given as false evidence. There is no issuance of show- cause notice for the procedure to be commenced as summary trial.
18. Here, the impugned order of conviction and sentence was preceded by the order of the learned Sessions Judge for recording of the statement of the complainant and the witness for the proceedings under Section 344 of Cr.PC. The statement which came to be recorded was the one question which was put by the learned Additional Sessions Judge, Vadodara in connection with Atrocity Case No.24 of 1998, that the Page 13 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined complainant and the witness had intentionally given false and fabricated evidence and had misused malafidely in the judicial process and with a malafide intention, on oath had given the false evidence. In that fact of the circumstances, the appellants were asked as to why they should not be punished under Section 344 of Cr.PC. The reply of the appellants was that they had received the land under the Tenancy Act from the Government and that the accused had come in a crowd and they had received police protection. The learned Judge failed to note that it was not the admission of the offence by both the appellants. The learned Judge on the reply of the appellants was required to initiate the Summary trial against the appellants. However, the record notices that after passing order, on the very same day, i.e. on 16.09.2004, the learned Additional Sessions Judge, Vadodara having noted that the clarification has been recorded under Section 344 of Cr.PC reflecting the reply of the appellants in the order observed that the Page 14 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined land bearing Survey No.136 was sold to Jashwantsinh Kalusinh Pirkhiya by Gananba, inspite of that, to usurp the Survey No.136, the complainant and the witness-Lakshmanbhai Koyjibhai Tadvi, i.e. the present appellant had given fabricated and false evidence in the Court, which the learned trial Court Judge found it to be proved and on that basis, the impugned judgment of conviction and sentence had been given.
19. Referring to the reply to the question raised by the learned Judge of the appellants, the learned Sessions Judge was of the opinion that the accused have intentionally given false evidence on oath and therefore, no mercy could be shown to the accused, otherwise, it was observed, that it would further encourage the person in the society giving false complaint, and thus to set an example deemed it fit to pass the above challenged sentence against the accused.
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20. In the case of M.M. Pasricha (supra), the facts of the case was that the proceedings was an off-shoot of Sessions Case, the question which fell for consideration was whether the conviction would be sustainable in a case where procedure prescribed for summary trial were not followed. The expression 'try such offenders summarily" used in the penultimate part of Section 344(1) was considered and the Hon'ble Court observed in Paragraph 7 as under :-
"(7) Now the question of some significance which arises herein is whether the words "try such offenders summarily" as used in penultimate part of section 344(1) require conformity with the procedure provided for summary trials or do they warrant the conviction and sentence of the offender forthwith after affording him an opportunity of showing cause against the notice. On behalf of the respondent-State it was at one stage sought to be contended that the summary trial visualised by this provision would be adequately satisfied if the offender is merely afforded an opportunity of replying to the charge of willfully giving false and fabricated evidence before the Court.
On the other hand it has been forcefully contended that sub- section (1) even when construed in isolation prescribes the procedure of summary trials for offenders under section 344, Criminal Procedure Code, and any doubts on this point are more than amply resolved when reference is made to the succeeding sub-section(2)."
21. Further by referring to the procedural aspect to be followed in Section 344 of Cr.PC. in the case of M.M. Page 16 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined Pascricha (supra), the Court was of the view that the provision made for the offender to be tried summarily does not mean that the Court is totally free to devise its own procedure for convicting such offenders. The position is crystal clear by sub-section (2) of Section 344, which lays that the trial shall conform, as nearly as may be practicable, to the procedure prescribed for summary trials.
22. As referred hereinabove, Chapter XX of Cr.PC is provided for the trial of the summons case by the Magistrates. The provision under Section 252 would show, that in all the cases, prior to conviction on plea of the guilt by the accused persons, when the accused is before the court, the particulars of the offence shall be stated to the accused , and he shall be asked whether he pleads guilty or has any defence to make.
23. Section 252 Cr.P.C. permits the magistrate on accused pleading guilty to convict him after recording the plea Page 17 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined as nearly as possible in the words used by the accused, the magistrate in his discretion then convicts the accused.
24. The procedure adopted by the Sessions Judge in the capacity of a magistrate taking cognizance of the offence so far in the present case appears to be fair to the accused, however the Sessions Judge failed to take notice that while recording the plea in the words of accused, the accused had not pleaded guilty, he had not admitted to the crime, so there was no scope to the Sessions Judge to convict accused, as per Section 253 of Cr.P.C.
25. Section 264 of Cr.P.C. if perused by the Sessions Judge could have guided the Honourable Judge, the format of judgment to be followed, for the delivery of judgment in cases tried summarily.
26. The learned Sessions was required to bear in mind that no man should be condemned unheard in an Page 18 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined adversarial set up of criminal system where accused is presumed to be innocent till found guilty. In cases where conviction is not followed under Section 252 or 253, the procedure as mentioned under Section 254 of Cr.P.C to be followed. The Magistrate is bound to hear the prosecution and take all such evidence as may be produced in support of prosecution case,and also hear the accused and take all such evidence as accused produces in his defence. The Magistrate is called upon to hear the case and take all the evidence produced by the prosecution as well the accused.
27. Section 254 of Cr.P.C. is extracted hereinbelow :-
"254. Procedure when not convicted.- (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be Page 19 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined deposited in Court."
28. As laid down under Section 251 of Cr.PC when in a summons case, the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
29. Section 251 clarifies that it shall not be necessary to frame formal charge. While Section 252 of Cr.PC provides for conviction on the plea of guilty and that the Magistrate to record the plea as nearly as possible in the words used by the accused and then may, in his discretion convict him thereon.
30. Attention is brought to the notice of this Court by both the sides that the appellant as accused had not pleaded any guilt and thus his conviction as ordered shall not fall under Sections 252 or Section 253 of Cr. Page 20 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025
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31. Section 254 of Cr.P.C as has been reproduced hereinabove, the Magistrate shall proceed to hear and take all such evidence that as may be produced in support of the prosecution and also the accused and take all such evidence that may be produced by the accused in his defence. Without following this process of summary-trial the Sessions Judge as Magistrate of the matter could not convict the accused. After following the procedure of hearing and taking all evidence of the Prosecution and the accused,the Magistrate if thinks fit on the application of the prosecution or the accused issue summons to any witness directing him to attend or to produce any document or other thing as provided in sub-section (2) of Section 254.
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32. The impugned order and perusal of the record, on the face of it, clarifies that the learned Judge has not followed the procedure as laid down in Chapter XX of Cr.P.C for the trial of summons-cases as contemplated and without affording any opportunity to the accused and even to the prosecution, the learned Sessions Judge had directly passed the order of conviction and sentence under Section 344 of Cr.PC., on the very day of acquitting the accused of the referred Atrocity Case wherein appellants were witnesses.
33. The learned Sessions Judge failed to understand that the provision under Section 344 combines procedural as well as punitive aspect. The Section explains what a Court of Sessions or Magistrate of First Class is required to do. The Hon'ble Judge after expressing opinion that the witness knowingly or willfully had given false evidence or had fabricated false evidence, with the intention that such evidence should be used in such proceeding and when the Hon'ble Judge is Page 22 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined satisfied in the interest of justice, it is expedient and necessary, that the witness should be tried summarily then may take cognizance of the offence and giving the offender reasonable opportunity of showing cause try such offender summarily. The mandate is to try summarily against the accused. For better understanding, sub-section (2) explains what is the procedure to be adopted. It is the procedure prescribed for summary trial.
34. In the case of Ambalal Bhavanishanker Upadhyaya (supra), this Court (Hon'ble Mr. Justice D.G. Karia, as he then was) has observed in Paragraph 4 as under :-
"(4) Where, after any action is initiated under sub-sec. (1), it is made to appear to the Court or Sessions or Magistrate of the first class than an appeal or an application or revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub-section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the result of the appeal or application for revision.
A plain reading of the aforesaid provision of Sec. 344 makes it clear that any witness appearing in the proceedings knowingly or willfully gives false evidence or fabricates false evidence with an intention that such evidence should be used in such Page 23 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined proceedings, the Court may order to issue show cause notice as contemplated in the aforesaid Sec. 344. It is true that a Court of Sessions or a Magistrate of first class, has been empowered itself to try and punish summarily the offence of perjury if the Court is satisfied that it is necessary and expedient so to do in the interest of justice, instead of filing a complaint before the magistrate as was the case under old provisions of Sec.439-A of Old Code of Criminal Procedure. The learned Judge seems to have committed serious error in ignoring that the petitioner falsely deposed deliberately or willfully or that he fabricated false evidence with an intention that such evidence would be used in the aforesaid Sessions Case No.41 of 1986. In the aforesaid reproduced order of the learned Judge, he has not recorded any satisfaction that the petitioner deliberately and knowingly deposed falsely. Every incorrect or false statement does not make it incumbent upon the Court to order prosecution. The Court has to exercise judicial discretion in light of the relevant circumstances when it determines the question of expediency. The Court has to order prosecution in the larger interest of administration of justice and not to show the feeling of personal revenge or vindictiveness or to serve ends of a private party. Such prosecution, if frequently initiated would tend to defeat itself from the object. It is only in glaring case of deliberate falsehood, where action is highly likely that the Court should direct to issue notice under Sec. 344 of the Code. It is pertinent to note that the learned Judge, while ordering to issue show cause notice on the petitioner has not recorded any satisfaction that the false evidence given by him was willful or with knowledge that the same was fabricated with an intention to use as such in the proceedings."
35. This High Court earlier in the year 1996 in the case of Ambalal Bhavanishanker Upadhyaya (supra) has clarified the provisions of Section 344 of Cr.PC, where the case was before the Court that the learned trial Court Judge has not recorded any satisfaction that the Page 24 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined petitioner deliberately and intentionally deposed falsely. The Court was of the opinion that for every incorrect or false statement, it would not be incumbent upon the Court to order prosecution and the said order of prosecution would be in the larger interest of administration of justice and not to show the feeling of revenge or to serve the needs of the private party. The court has to exercise Judicial discretion in light of the relevant circumstances when it determines the question of expediency. It is only in case of deliberate falsehood, where the court should direct to issue notice under Section 344 of Cr.P.C.
36. Here in this case, the observations of the learned Judge acquitting 25 accused were not on the documents which the prosecution purported to produce. The observations of the Sessions Judge were not supported by documentary evidence of the civil and revenue proceedings between the parties. The learned Judge was of the view that the complainant Page 25 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined and the witness were trying to usurp Survey No.136 of the accused-Jashwantsinh Kalusinh Parkhiya. Learned advocate Mr. Parikh has referred to the order dated 05.09.2024 in Second Appeal No.360 of 2019 with Civil Application (for Stay) No.1 of 2019 in Second Appeal No.360 of 2019, of the present parties in dispute Jashvantsinh Kalusinh Parakhiya v. Kamlaben Koyjibhai Tadvi and Others. (Coram : J.C. Doshi, J.) on 05.09.2024 passed an order and made the following observations in Paragraph 7 which is as under :-
"7. Yet, cursorily look at the impugned judgment and order would give the picture that Koyjibhai Himmatbhai Tadvi was declared as tenant by the Mamlatdar and ALT in in Tenancy Case No.3 of 1989 on 11/10/1991 which order was produced before the trial court at Exh.112. In the subsequent proceedings the order produced at Exh.112 has been confirmed though it is contended that proceedings before this court challenging the said order is pending; but the fact remains that when suit was filed before trial court by either of the party, the order at Exh.112 was not altered. The Civil Court under the provisions of the Tenancy Act has legally prevented from examining the validity of the order passed under the Tenancy Act. Just certificate issued under Tenancy Act of forming the order passed declaring tenant is conclusive proof of title. Undisputedly, Koyjibhai Tadvi had become the owner of the disputed land. The appellant who is claiming his right and title over the disputed land based on a sale-deed executed by Gananben had no title to the disputed property to transfer in favour of appellant. In view of Section 6 of the Transfer of Property Act, on the date of execution of sale-deed on 09/04/1996, the Gananben Parekhiya had no right title or interest in the disputed property and she could not transfer Page 26 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined any right, title or interest in favour of Jashvantsinh Kalusinh Parekhiya. Thus, the effect of the sale-deed dated 09/04/1996 is nonest, void and ab initio. It may not be pressed into service to seek relief to protect possession of the disputed land as possession of the land is already lying with tenant-Koyjibhai Tadvi as a title holder at least from 11/10/1991. Both the courts below have elaborately discussed this issue referring to oral evidence of the party."
37. The Court has recorded that Koyjibhai Himmatbhai Tadvi (the deceased appellant) was declared as a tenant in Tenancy Case No.3 of 1989 on 18.10.1991. The certificate was issued under the Tenancy Act, which was considered, which declared Koyjibhai as a tenant and it was considered as conclusive proof of the title. It was observed that undisputedly, Koyjibhai Tadvi had become owner of the disputed land. The learned Sessions Court Judge failed to permit the learned APP to produce the document by a prayer below Exhibit 52. The appellant No.1 was declared a tenant on 11.10.1991, while the complaint which was filed against the accused by the complainant at the Police Station under Sections 143, 447, 427, 435 and 579 of Indian Penal Code (IPC) and under Section 3(1)
(x) of the Atrocities Act was dated 16.05.2004. This Page 27 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined Court does not want to enter into the observations made in the judgment acquitting the 25 accused. The learned APP has produced a statement to bring to the notice of this Court that no appeal has been filed by the State challenging the acquittal of 25 accused. Further, it requires specific mention that the learned trial Court under the Atrocities Act has not permitted the learned APP to produce documentary evidence with regard to the ownership of the property in dispute while has observed document of the accused in defence. The Sale Deed of Survey No.136 executed by Gananben was permitted to be produced, which Sale Deed was declared to be without right and title. In the above referred judgment as observed in Second Appeal No.360 of 2019, it was specifically observed that Jashvantsinh Kalusinh Parekhiya could not prove his right and title over the disputed property as Gananben had no title to the disputed property to transfer it in favour of Jashvantsinh Kalusinh Parekhiya. Page 28 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025
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38. In view of the observations hereinabove and on appreciation of the proceedings in the Cr.P.C, this Court is of the view that the learned Sessions Judge has shown his overzealous attitude in recording the statement of the complainant and the witness, who is the present appellant under Section 344 of Cr.PC and have erroneously passed the order of conviction and sentence, having blatantly disregarded the procedure to be followed for a summary triable case as to be followed in summons case as laid down in the Cr.PC.
39. The judgment of Ambalal Bhavanishanker Upadhyay (supra) has cautioned the Judges to exercise judicial discretion and to protect the larger interest of administration of justice.
40. Herein this case, the impugned order of conviction and sentence becomes illegal and unreasonable, since the appellant - accused under Section 344 of Cr.P.C., had not admitted the guilt. When there was no admission Page 29 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined of guilt, it becomes incumbent upon the learned trial Court Judge to follow the procedure under Chapter XX of Cr.P.C. by giving an opportunity to the prosecution as well as the defence to lead evidence. Admittedly, no such procedure has been followed.
41. In view of the judgment dated 05.09.2024 passed in Second Appeal No.360 of 2019, further the learned Judge has also erred in not permitting Exhibit 52, which was moved by the learned APP. The principle of justice has not been followed throughout. No Liberty was granted to the Public Prosecutor to substantiate the fact of ownership of the property of the complainant and the witnesses Further it is also required to record that the complainant-witness were not presenting their case it was the prosecution by the State. It is not the observation of the learned Judge that the witnesses were giving false evidence or providing false documents in support of the accused. The observations of the learned Judge does not Page 30 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined establish any said fact of intentional disregard to the law or spirit of justice from the side of the appellant. Rather, the analysis of the record as observed herein before would show that the learned trial Court Judge was acting with prejudice towards the prosecution witness and even with the Public Prosecutor, who was conducting the trial, and denial of production of documents vide prayer below Exhibit 52 was a vital blow on the prosecution where the learned Judge denied the opportunity to the learned Public Prosecutor to present the case.
42. As has been noticed hereinabove, there was failure in following the procedure as contemplated for the alleged offence under Section 344 of Cr.P.C, now in that circumstances, whether it would be necessary to remand the matter for re-trial, would require examination.
43. The Sessions Judge was of an opinion that the Page 31 of 33 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 21:57:47 IST 2025 NEUTRAL CITATION R/CR.A/1607/2004 JUDGMENT DATED: 25/09/2025 undefined appellants were to be proceeded since in Atrocity Case No.24 of 1998, they had intentionally fabricated false evidence and in judicial proceedings had malafidely used, and in that way had with malafide intention on oath given false evidence. On that basis, the appellants were asked as to why they should not be sentenced under Section 344 of Cr.P.C. As has been referred, the document of ownership of property was not permitted to be adduced by the State in evidence through the present surviving appellant. The observation of the Senior Judge in convicting the appellants would be erroneous, faulty and illegal, in view of the judgment in Second Appeal No.360 of 2019 dated 05.09.2024. The tenancy right of the agriculture land was of the appellants. The accused of Atrocity case had come on the land of the complainant of the Atrocity Act who had title on land and was in possession. Thus, on merits of the case too, the conviction is bad in law.
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44. In view of the above, the impugned order being illegal, erroneous, de-hors the provisions of law and without following the principle of natural justice, is required to be set aside. Therefore, the judgment and order of conviction dated 16.09.2004 passed by the Additional Sessions Judge, Vadodara in Atrocity Case No.24 of 1998 below Ex. 206 is set aside. The appeal qua the appellant No.2-Lakshmanbhai Koyjibhai Tadvi is allowed. The appellant No.2 is acquitted of all the charges levelled against him. Bail bond stands discharged. Record and proceedings be sent back to the concerned Court forthwith.
Sd/-
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