Gauhati High Court
Abdul Awal vs The State Of Assam And Anr on 21 August, 2017
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Crl. Revn. Pet. No. 414 of 2012
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
21.08.2017
Heard Mr. Mr. H.R.A. Choudhury, learned Senior Counsel, assisted by Mr. N
Uddin, learned counsel for the petitioner and Mr. H Sarma, learned Additional Public
Prosecutor, Assam for the respondent State.
2. The learned Court of Munsiff Magistrate No.1, Goalpara, after considering the records and hearing the parties by order dated 26.07.2012 passed in C.R. Case No.724 of 2011 framed charge under Section 193 IPC against the petitioner, fixing 24.08.2012 for evidence. Being aggrieved with the said order of framing charge under Section 193 IPC dated 26.07.2012, the petitioner has preferred this revision petition.
3. The petitioner herein is serving as a Head Teacher in Kharmuja Lower Primary School, a provincialised school at Baguan, District-Goalpara. Brief facts of the case is that on 04.09.2008, a minor girl while coming to the said LP School in the morning was ran over by a motorcyclist, which was at a high speed and due to said road traffic accident, said minor sustained injuries and her right leg was fractured. The said accident occurred just in front of the said L.P. School and the petitioner and another teacher of the school took the injured minor to the hospital for her treatment. The father of the injured minor girl on 07.09.2008 lodged an FIR before the Officer-in-Charge of Kharmuja Out Post regarding the said incident accusing one Md. Baharul Islam, son of Md. Jobed Ali and the said FIR on being forwarded was registered as Goalpara Police Station Case No. 260/2008 (corresponding to G.R. Case No. 939/2008) under Sections 279/338 IPC. After filing of the Charge Sheet in said Goalpara P S Case No. 260/2008, trial of said G.R. Case No. 939/2008 proceeded before the Judicial Magistrate, First Class, Goalpara where the petitioner as prosecution witness, being PW No.2 initially deposed on 03.07.2010.
4. In his said deposition dated 03.07.2010 before the Trial Court in G.R. Case Crl. Revn. Ptn. No. 414 of 2012 Page 1 of 8 No.939/2008, the petitioner in his examination-in-chief deposed that he knows the informant but he does not know the accused nor his name. He also deposed that while he was standing in the verandah of the School, he saw, a minor girl of his school was running to the school and when she was crossing the road, a motor cycle that came from the opposite direction, which was at a high speed, knocked her and both the minor girl as well as the rider with his bike, who was in police uniform, fell down in the road. He further deposed that the offending motor cycle, bearing Registration No.AS-01-Z-9768, was driven by one Shah Alam Khalifa, who is known to him. However, during his cross-examination on 03.07.2010, the petitioner deposed that the accused was not riding the said offending motor cycle.
5. After the recording of depositions of the prosecution witnesses in said G.R. Case No. 939/2008, said Shah Alam Khalifa was added as another accused in said GR Case and the petitioner, being one of the prosecution witness, was re-called for his examination. During his such re-examination in said G.R. Case, on 10.01.2011 the petitioner in his examination-in-chief deposed that both the informant and the accused Baharul Islam are known to him and narrated the incident of 04.09.2008 and stated that the offending motor cycle was driven by the accused Baharul Islam carelessly at a high speed, knocked the girl in the road, ran over the bike over her leg, for which though the bike fell down but its rider (accused Baharul) remained standing. During his cross-examination, petitioner reiterated that in his previous deposition before the Court in the case, he stated the same thing and denied the suggestion that on that day (on 10.01.2011) he had deposed by changing his previous deposition made on 03.07.2010.
6. By Judgment and Order dated 20.06.2011 passed in said G.R. Case No. 939/2008, the Trial Magistrate, i.e. JMFC, Goalpara convicted said Shah Alam Khalifa, son of Md. Jobed Ali under Sections 279/338 IPC and sentenced him to undergo 6 (six) months Simple Imprisonment and fine of Rs.1,000/- in default further S.I. for one month for the offence under Section 279 IPC and further, to undergo 2 (two) years Rigorous Imprisonment and fine of Rs.1,000/-, in default of payment of fine, further S.I for one month for the offence under Section 338 IPC observing that both the sentences to run concurrently.
Crl. Revn. Ptn. No. 414 of 2012 Page 2 of 87. On 20.06.2011 (signed on 21.06.2011) itself the Trial Magistrate of G.R. Case No. 939/2008, the JMFC, Goalpara issued a show cause notice under Section 344 Cr.P.C. to the petitioner as to why the proceeding under Section 193 IPC should not be initiated against him, asking him to submit his reply on or before 04.07.2011 informing him that in the above noted judgment dated 20.6.2011 it was opined that he was the witness in the case and deposed twice, i.e. before and after arraying the accused Shah Alam Khalifa and it was found that either of the deposition made by him is false. Along with the said show cause notice dated 20.06.2011 (signed on 21.06.2011), the petitioner was also furnished with the photostat copies of his such deposition.
8. The petitioner submitted his reply to the said show cause on 04.07.2011 before the JMFC, Goalpara. Finding his said reply to be unsatisfactory, the said Magistrate did not accept petitioner's said reply and on 04.07.2011 itself the JMFC, Goalpara filed a complaint before the Chief Judicial Magistrate, Goalpara against the petitioner and another prosecution witness of the case for the offences under Sections 193/34 IPC. The said complaint was registered as C.R. Case No.724/2011 and the learned CJM, Goalpara by his order dated 04.07.2011 transferred the said CR Case to the Court of learned Munsiff Magistrate No.1, 1st Class, Goalpara for disposal and in the proceeding of said CR Case, the Trial Magistrate passed the impugned order dated 26.07.2012.
9. Mr. H.R.A. Choudhury, learned Senior Counsel for the accused petitioner submitted that the depositions made before the Court by the petitioner on two different occasions in the same case was without any intention to mislead the Court and difference, if any, was found by the Court, the same was also not intentional on his part. In this regard Mr. Choudhury submitted that it is only on the basis of deposition of the petitioner, the accused Shah Alam Khalifa was convicted and punished in said G.R. Case No.939/2008. Mr. Choudhury contended that it is the petitioner who revealed the name of the accused Shah Alam Khalifa during the trial of the case in his initial deposition on 03.07.2010; but it is the complainant who wrongly recorded the name of the accused as Baharul Islam in place of accused Shah Alam Khalifa, whose name was mentioned by the petitioner as the accused of the case.
Crl. Revn. Ptn. No. 414 of 2012 Page 3 of 810. Mr. Choudhury further submitted that allegations made in the complaint do not prima facie constitute any offence and make out a case warranting institution of criminal proceeding against the petitioner and the Trial Court erred in law in framing charge under Section 193 IPC against him. It is also placed before the Court that the petitioner during his re-examination on 10.01.2011 stated that after the accident when the motor cycle fell down, the motorcyclist/rider of the bike (chaalok) remained standing and did not utter the name of the accused Baharul Islam, but the complainant himself, while recording petitioner's deposition inserted the name of the accused as 'Baharul Islam' within bracket after the word chaalok. As such, the petitioner prayed to quash the said impugned order dated 26.07.2012 passed in C.R. Case No.724/2011 against him. In support of his submissions, Mr. Choudhury placed reliance on the judgments of the Hon'ble Supreme Court in the cases of K.T.M.S. Mohd and Another -Vs- Union of India, reported in (1992 3 SCC 178 and Suman -Vs- State of Rajasthan and Another, reported in (2010) 1 SCC 250.
11. Mr. H. Sarma, learned Additional Public Prosecutor, on the other hand submitted that the Trial Court have rightly passed the order dated 26.07.2012 passed in C.R. Case No.724/2011 by framing charge under Sections 193/34 IPC against the petitioner as his depositions with regard to the name of the accused in the same case before the Trial Magistrate in G.R. Case No.939/2008 made on 03.07.2010 and on his re-examination on 10.01.2011 are different as on first occasion, petitioner named the accused of the case as Shah Alam Khalifa and later, during his re-examination, he named the accused as Baharul Islam. Mr. Sarma also stated that the petitioner as a prosecution witness, on oath, before the Court, submitted two different names of the accused motorcyclist with regard to the incident of 04.09.2008.
12. Considered the submissions of the learned counsels for the parties as well as the judgments cited by them.
Section 193 IPC relates to punishment for false evidence and it reads as-
The essential ingredients of Section 193 IPC are -
(i) That the accused was legally bound to state the truth, either by an oath or by an express provision of law, or that the accused made the deceased the Crl. Revn. Ptn. No. 414 of 2012 Page 4 of 8 declaration in question and due administration of the oath to the accused person should be proved like any other fact.
(ii) That the accused had made such statement or declaration whilst so bound.
(iii) That such statement, or declaration, was made in a state of a judicial proceeding.
(iv) That the statement or declaration is false.
(v) That the accused when making such statement or declaration, (a) knew it
to be false, or (b) believed it to be false, or (c) did not believe it to be true.
(vi) That the accused made such false statement intentionally.
However, It must be shown that the false statement charged against the accused is literally false. There must be a statement of fact which is false. It is no offence if the fact stated is true but some circumstance is suppressed with the result that a wrong inference may be deduced.
To prove an offence of fabricating false evidence punishable under section 193 IPC, the prosecution has to prove that -
(i) The accused (a) has caused any circumstance to exist, (b) made any false entry in the book of record, or (c) made a document containing false statement.
(ii) That such circumstances, false entry, or false is intended to appear in evidence in (a) a judicial proceeding, or (b) a proceeding taken by law before a public servant or an arbitrator.
(iii) That it was intended that such circumstance, false entry or false statement so appearing in evidence, might cause any person, who in such proceeding, is to form an opinion upon the evidence, to entertain an erroneous opinio In a case related to Section 193 IPC, a three Judges Bench of the Hon'ble Supreme Court in the case of M. S. Ahlawat -Vs- State of Haryana and another, reported in (2000) 1 SCC 278 have observed that -
"It is settled law that every incorrect or false statement does not make it incumbent upon the Court to order prosecution, but to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice."
The Hon'ble Supreme Court in the case of CBI -Vs- K.M.Sharan, reported in (2008) 4 SCC 471 have observed that -
"On careful scrutiny and analysis of the allegations incorporated in the FIR/Charge Sheet/Complaint, if it is found to be abundantly clear that ingredients of Section 193 is made out setting out a cognizable offence, it justifies the registration of a case and investigation thereon."
In the case of K.T.M.S. Mohd and Another -Vs- Union of India, reported in (1992) 3 SCC 178, the Hon'ble Supreme Court have held that -
Crl. Revn. Ptn. No. 414 of 2012 Page 5 of 8"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."
A Bench of this Court in the case of Sushanta Sarkar -Vs- State of Nagaland and Others, reported in 2012 CrLJ 1753 : 2012 (5) GLT 285 have held that -
"Whether the petitioner has really made a false statement or not is a question of fact, which can be decided at the trial and not in quashing proceeding, when the allegations, which have been made against the petitioner do make out a prima facie case under Section 193 IPC."
The Hon'ble Supreme Court in the case of State of Bihar -Vs- Ramesh Singh, reported in (1977) 4 SCC 39 have held that -
"at the timing of framing of charge i.e. at the beginning of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged."
In the case of Ram Kumar Laharia -Vs- State of Madhya Pradesh and Another, reported in (2001) 2 SCC 626, the Hon'ble Supreme Court have held that-
"At the stage of framing charge, evidence is not to be weighed the meticulous consideration of evidence and material by the Court is not required. Even a strong suspicion of course founded upon material and a presumptive opinion would enable the Court in framing a charge against the accused."
The Hon'ble Supreme Court in the case of State of M.P. -Vs- S.B. Johari, reported in (2002) 2 SCC 57, have held that -
"The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding for further, then it charge has to be framed."
In the case of State of A.P. -Vs- Golconda Linga Swamy, reported in (2004) 6 SCC 522, the Hon'ble Supreme Court have held that -
"At the time of framing of Charge there should be a finding that prima facie case is made out and sufficiency of evidence resulting into conviction is not to be seen, which will be seen by the trial Court, whether the case is based on direct or circumstance in evidence. Charge can be framed if there are materials showing possibilities about the commission of crime as against certainty."
Another Bench of this Court in the case of Bhagya Kalita -Vs- Central Bureau of Investigation, reported in 2001 CrLJ 575 : 2000 (3) GLT 427 have held that -
Crl. Revn. Ptn. No. 414 of 2012 Page 6 of 8"The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the Court cannot decide at this stage that such witness is not reliable or that the explanation by her is not justifiable or acceptable. In the circumstances, it can be said that there is no infirmity or illegality in the impugned order whereby charge was framed against the accused as the materials on record disclosed a prima facie case."
13. In the present case, it is seen that the petitioner is a Head Teacher of a provincialised Lower Primary School and as such, he is a literate man. In his deposition before the JMFC, Dhubri in the G.R. Case No.939/2008, the petitioner, on oath, on 03.07.2010, in his examination-in-chief clearly stated that it is Shah Alam Khalifa, who in police dress at a high speed drove the offending motorcycle. But, on 10.01.2011, in the same G.R. Case No.939/2008, on his re-examination as a prosecution witness, the petitioner, on oath, in his examination-in-chief stated that it is Baharul Alam, who was riding the bike carelessly at a high speed and knocked the victim girl. Though petitioner blamed the complainant of C.R. Case No. 724/2011 that he committed error while writing down his deposition on 10.01.2011, but being literate, after going through the recorded contents of his said deposition, the petitioner put his signature on it on 10.01.2011 itself. Therefore, such contention of the petitioner urged by him cannot be considered. As seen from the above, the allegations, made by the complainant pertaining to C.R. Case No.724/2011 disclose a prima facie case under Section 193 IPC against the petitioner.
14. As it is settled that whether an accused has committed an offence under Section 193 IPC intentionally by giving 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 or not, being a question of fact, that can be established only during a trial. Therefore, at this stage the sincerity of different statements made by the petitioner cannot be considered and disposed of at the stage of framing of charge. Moreover, no such infirmity or illegality has been found in the impugned order dated 26.07.2012 passed by the learned Munsiff Magistrate No. 1, 1st Class, Goalpara in said C.R. Case No.724/2011, by which charge under Section 193 IPC was framed against the petitioner as it is seen that the learned Trial Magistrate found prima facie materials on record against the petitioner.
Crl. Revn. Ptn. No. 414 of 2012 Page 7 of 815. For the reasons above, this revision petition is dismissed.
16. No order as to costs.
17. The interim order dated 21.08.2012 passed earlier in this petition suspending the further proceeding of said C.R. Case No.724/2011, pending before learned Munsiff Magistrate No. 1, 1st Class, Goalpara stands vacated.
18. The concerned Court shall now proceed with the trial of said C.R. Case No.724/2011, by issuing a fresh notice to all the parties, as there is another accused person in the case and shall decide the matter expeditiously.
19. However, it is made clear that the Trial Court shall not be influenced in any manner to prejudice the case of either party by any observations made in this order.
20. Registry shall forward a copy of this order to the Court of learned Chief Judicial Magistrate, Goalpara forthwith.
JUDGE gunajit Crl. Revn. Ptn. No. 414 of 2012 Page 8 of 8