Gujarat High Court
Ambalal Bhavanishanker Upadhyaya vs Rasiklal Manilal Mehta And Ors. on 24 March, 1995
Equivalent citations: (1996)1GLR51
JUDGMENT D.G. Karia, J.
1. This Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment and order of acquittal dated October 9, 1986 passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No. 41 of 1982. By the impugned judgment, the learned Additional Sessions Judge ordered to acquit the accused persons under Section 235(1) for the offences punishable under Section 436 read with Section 34 of the Indian Penal Code. The learned Judge observed in the operative order of the judgment that as mentioned in para 29 of the judgment, the complainant who is the petitioner herein, deposed falsely and therefore, the learned Judge having taken cognizance thereof ordered to issue a show cause notice under Section 344 of the Code of Criminal Procedure Code to the complainant to show cause why he should not be punished for the offence of giving false evidence or having fabricated false evidence with the intention that such evidence would be used in such proceedings. What is recorded by the learned Judge in his operative part of the judgment and translated reads as under:
The complainant has deposed falsely as per averments made in para 29 of this judgment and therefore, I take cognizance of it and notice under Section 344 of the Code of Criminal Procedure for showing a cause why he should not be punished for the said offence to issue.
2. This Court (Coram: J.P. Desai, J. as he was then) by its oral order dated June 13, 1987 ordered to reject the Revision Application so far as it challenged the order of acquittal passed by the learned Sessions Judge. The Revision Application, however, came to be admitted so far it relates to relief regarding quashing and setting aside the order dated October 9, 1986 relating to issuance of the notice to the petitioner under Section 344 of the Code of Criminal Procedure. This Court passed the following order, while admitting the Revision to that extent.
Rule. Mr. G.D. Bhatt, Additional Public Prosecutor waives service. To be fixed for final hearing on 20-7-1987. Fix peremptorily subject to over-hight part-heard. So far as the interim relief prayed for vide para 8(c) is concerned, the petitioner to file his reply to the notice issued to him before the learned Sessions Judge before 20-7-1987 and produce a copy of the same before this Court, but the trial Court should not proceed further with the matter after the reply is filed by the petitioner till further orders of this Court.
3. Pursuant to the aforesaid, the petitioner has submitted his reply to the show cause notice on July 16, 1987 wherein he has inter alia contended that he has not deposed falsely before the Hon'ble Court nor has fabricated any evidence. In para 5 of his reply, he has also stated that he has not given any false evidence knowingly or wilfully. He, thus, sought to quash the said show cause notice.
4. Section 344 of the Criminal Procedure Code under which the aforesaid notice is issued reads as under:
344. (1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Sessions or Magistrate of the First Class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should in such proceedings, 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 summarily trials.
(3) Nothing in his section shall effect 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 Sessions or Magistrate of the first class that 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 threupon 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 Section 344 makes it clear that any witness appearing in the proceedings knowingly or wilfully gives false evidence or fabricates false evidence with an intention that such evidence should be used in such proceedings, the Court may order to issue show cause notice as contemplated in the aforesaid Section 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 a Magistrate as was the case under old provisions of Section 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 wilfully 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 feelings 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 Section 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 wilful or with knowledge that the same was fabricated with an intention to use as such in the proceedings.
5. It is, therefore, clear from the aforesaid provision of Section 344 that the Court must come to the conclusion that in the interest of justice, the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness and for that, the Court should, at the first instance express the opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. In the present case, the learned Judge has not recorded such a finding that petitioner knowingly or wilfully deposed falsely. To my mind, in the facts and circumstances of the case, no case of perjury can be made up.
6. It is unfortunate that the learned Judge, while criticising the conduct of the complainant in para 9 of the judgment appears to have swayed away by the fact that the petitioner is a senior Advocate and that he has disregarded the oath which he took before giving evidence. Suffice it to say that essential condition for issuing a notice and exercising powers under Section 344 of the Code of Criminal Procedure, namely, Court's satisfaction that the concerned witness knowingly or wilfully gave false evidence or fabricated false evidence, is absent in the present case.
7. The aforesaid case was as a result of the police complaint lodged by the complainant. The police investigated and ultimately submitted the charge-sheet against the accused. The learned Magistrate, after making an inquiry committed the case to the Court of Sessions. Under the circumstances, it cannot be concluded that the petitioner, though a senior Advocate of Sabarkantha district, knowingly or wilfully deposed falsely or fabricated false evidence and particularly when there is no such satisfaction or recording of satisfaction by the learned Judge before ordering to issue a show cause notice under Section 344 of the Code.
8. The Supreme Court in the case of Narayan Swamy v. State of Maharashtra, has held as under:
What is mandatory is that before filing complaint against witness for perjury, the Court must form an opinion that the witness has either given intentionally false evidence or has intentionally fabricated false evidence and further must form an opinion that it is expedient in the interest of justice that the witness should be prosecuted for the offence committed by him.
This decision is squarely applicable to the present case.
9. In the above premises, the Revision Application is allowed. The impugned show cause notice under Section 344 of the Code of Criminal Procedure is hereby quashed and set aside. Rule is accordingly made absolute.