Allahabad High Court
Banti Saini vs State Of U.P. on 4 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:1375 Court No. - 82 Case :- MATTERS UNDER ARTICLE 227 No. - 13285 of 2023 Petitioner :- Banti Saini Respondent :- State of U.P. Counsel for Petitioner :- Sunil Kumar Upadhyay Counsel for Respondent :- C.S.C. Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Vikas Srivastava, Advocate holding brief for Sri Sunil Kumar Upadhyay, learned counsel for the petitioner and Sri R.K. Gupta, learned AGA for the State.
2. By means of this petition, the petitioner has challenged an order dated 11.08.2023 passed by Special Judge (POCSO Act), Rampur in criminal case no. 37 of 2023 under section 344 Cr.P.C., by which he was issued summons.
3. The relevant facts are that on an FIR lodged by the first informant (the petitioner herein), the accused Shiv Kumar was tried for the offence under sections 363, 366, 506, 376 IPC and sections 3/4 of POCSO Act and he was acquitted. A proceeding under section 344 Cr.P.C. was drawn against the first informant in the light of the order/judgment of acquittal dated 07.08.2023. The learned court issued summons against PW1-Banti Saini.
Section 344 Cr.P.C. provides as below:-
"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."
From bare perusal of the provision of section 344 Cr.P.C., two distinct phases come into picture. First portion applies before taking cognizance of the offence of giving false evidence/fabricated false evidence. In this part i.e., before the court proceeds to take cognizance, following conditions must stand fulfilled:-
(i) The court concerned expresses an opinion at the time of delivery of any judgment or final order;
(ii) This opinion must pertain to a witness that he knowingly or willfully gave false evidence/fabricated false evidence;
(iii) The intention of the witnesses in giving such evidence must be that it may be used in judicial proceeding;
(iv) The court must be satisfied that it is necessary and expedient in the interest of justice that the whiteness should be proceeded against under section 344 Cr.P.C.
On fulfillment of above conditions, the concerned court may take cognizance of the offence.
Now second phase of the matter commences i.e., after taking of cognizance of the offence. At this stage, the offender shall be given a reasonable opportunity of showing cause why he should not be punished for such offence. After considering his reply, the court may or may not proceed to try such offender. When the court chooses to proceed further, the offender shall be tried in a summary manner as far as practicable.
4. The petitioner has ample opportunity to air his grievances and to show cause why he should not be punished for the offence, hence this petition is disposed of with a direction to the court concerned to give the applicant/petitioner an opportunity to file a reply/show cause in terms of the provisions of law under section 344 Cr.P.C. and decide the same as per law.
5. Accordingly, the petition is disposed of.
Order Date :- 4.1.2024 #Vikram/-