Bombay High Court
Dr. (Miss) Azmy Pesi Bharucha vs The State Of Maharashtra on 19 April, 1999
Equivalent citations: 1999(4)BOMCR29, (1999)2BOMLR737, 1999(2)MHLJ737
Author: Pratibha Upasani
Bench: Pratibha Upasani
ORDER Dr. Pratibha Upasani, J.
1. The petitioner has filed this writ petition under section 482 of the Code of Criminal Procedure, 1973, being aggrieved by the show cause notice dated 3rd March, 1992, issued by the Metropolitan Magistrate, 43rd Court, Borivli, Bombay in Notice No. 250/1 of 1992, asking the petitioner to show cause as to why the petitioner should not be punished for fabricating false evidence by trying them summarily under section 344 of the Code of Criminal Procedure, 1973.
2. The background which led the learned Magistrate to issue a show cause notice, as mentioned above, against the petitioner and one Dr. (Mrs.) Shrivastav, needs to be briefly narrated.
3. The petitioner before this Court, Dr. Azmy Pesi Bharucha is an M.D. in Gynaecology and Obstetrics, and at the relevant time, she was working as lecturer in Cooper Hospital, a Municipal Hospital at Juhu, from 1st January, 1992 with full time clinical duties.
4. On 8th January, 1992, a small girl of nine years was referred to her on the allegation that she was raped by her class teacher, on the same day at 3.30 p.m. It was a police case. The allegation was that the teacher offered the girl 50 paise and asked her to wash his tiffin. When she refused, he made her stand On a cupboard, took off her knickers, took off his own trousers and raped her. Apparently, another small boy witnessed this scene. The victim tried to scream but the accused covered her mouth tightly, and before she left for home, he apparently, threatened him that she should not tell this incident to anyone. The victim had not yet attained menacme and it was the first time that she was abused in this way.
5. The petitioner examined the said girl, aged nine years on 9th January, 1992 (after midnight of 8-1-1992). The petitioner prepared indoor papers, zerox copies of which are annexed as Exhibit 'A' on page Nos. 20 and 21 of the petition. Thereafter, an injury Certificate No. 66424 dated 29th Janu-
ary. 1992 was given by the petitioner. The zerox copy of this Certificate is annexed as Exhibit 'D' on page No. 28 of the petition. The learned Magistrate thought that the said Certificate No. 66424 dated 29-1-1992 was not tallying with the O.P.D. papers, which were in the police papers. Hence, he directed the police to confirm regarding the same from the petitioner and one Dr. (Mrs.) Shrivastav. One P.S.I. Pawar had been sent to Cooper Hospital to verify the said position.
6. It appears that Dr. (Mrs.) Shrivastav retained the earlier Certificate dated 29th January, 1992, and the petitioner Dr. (Ms.) Bharucha issued a fresh Certificate No. 66453 dated 1st February, 1992. The Magistrate, however, still thought that the fresh Certificate also was not in conformity with the police papers, Hence, summonses were issued to Dr. (Mrs.) Shrivastav, as well as the petitioner, to produce the original papers. After perusal of the original papers, the learned Magistrate found that the fact that "Hymen was stretched, as if sexual intercourse was taken place" was suppressed from the Court by the petitioner, knowingly, though the said fact was observed by her, and by suppressing this fact, the petitioner caused circumstances to exist that rape had not taken place.
7. The learned Metropolitan Magistrate, 43rd Court, Borivli, Bombay, also thought that by making false entry in the above referred certificates, the petitioner made those certificates, containing a false statement intending that such circumstance was false, may appear in evidence in judicial proceeding and that false statement appearing in the evidence, may cause the Court to form an opinion that sexual intercourse had not taken place, and thereby, to enter an erroneous opinion touching the point of sexual intercourse, and thereby, the petitioner fabricated false evidence.
8. The learned Magistrate, therefore, while passing order on the Bail Application made by the accused (School Teacher), by rejecting the same, expressed his opinion that Dr. (Mrs.) Shrivastav and the petitioner Dr. (Ms.) Azmy Bharucha issued medical certificates bearing Nos. 66424 and 66453, knowingly that the said certificates were false, and suppressed real facts from the Court. Under these circumstances, he called upon both of them to explain as to why they should not be punished for fabricating false evidence by trying them summarily under section 344 of the Code of Criminal Procedure, 1973.
9. After the above mentioned show-cause notice was issued under section 344 of the Code of Criminal Procedure, 1973 by the learned Metropolitan, Magistrate, 43rd Court, Borivli, Bombay, the present petitioner, Dr. (Ms.) Azmy Bharucha, instead of showing cause to the same, approached this Court under section 482 of the Code of Criminal Procedure, 1973, and obtained interim stay on 18th March, 1992. The said stay is still in operation.
10. Mrs. G.P. Bharucha, learned Advocate appearing for the petitioner, argued that the learned Metropolitan Magistrate, 43rd Court, Borivli, Bombay, committed an error in issuing the said show-cause notice under section 344 Cr.P.C. and that he had no jurisdiction to do so. She pointed out that section 344 of the Code of Criminal Procedure did not envisage issuing such a show-cause notice while disposing of bail application. She further submitted that petitioner had never appeared as a witness in any proceeding. She also argued that the Magistrate, had not stated anywhere in his order that such a show-cause notice was being issued by him because he was satisfied that it was necessary and expedient to do so in the interest of jusitce, that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence. She, therefore, prayed that the impugned show cause notice be quashed and set-aside.
11. Mr. S.R. Shinde, learned Additional Public Prosecutor, appearing for respondent, argued that the learned Magistrate was right in issuing the show-cause notice as per the provisions of section 344 of Code pf Criminal Procedure, 1973. He did not argue anything beyond that.
12. I have heard Mrs. G.P. Bharucha for petitioner and Mr. S.R. Shinde, A.P.P. for respondent. Query was made by the Court on the last occasion as to whether the Sessions trial had commenced or not. Mr. Shinde, the learned A.P.P., after making enquiries, made a statement that Sessions Trial No. 752/92 was pending in the Sessions Court, Greater Bombay, and the trial had not commenced as yet.
13. After perusing the proceedings, and after carefully reading the provisions of section 344 of the Code of Criminal Procedure, 1973, in my opinion, the learned Magistrate was not correct in issuing the show cause notice at that stage. Section 344 of the Code of Criminal Procedure, 1973 reads as follows:
"Section 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 wilfully 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) .......
(3) ........
(4) ........
14. After perusing the Certificates and the Indoor case papers, there does appear to be some discrepancy in the contents thereof. It appears that therefore, the learned Magistrate came to the conclusion that there was an attempt to suppress some evidence and attempt to mislead the Court to come to an erroneous finding, consequently giving a possible benefit of doubt to the accused. However, it has to be said that the stage at which, the said show cause notice was issued, was a premature stage. The Sessions trial is yet to begin. The petitioner will have to be called as witness in the said trial to prove the Certificates issued by her. Section 344 of the Code of Criminal Procedure, 1973 speaks about forming an opinion when any 'witness' appears in any proceeding, and when that 'witness' knowingly or willfully gives false evidence, or fabricates false evidence with an intention that such evi-
dence should be used in such proceedings. Thus, under these circumstances, if the Court is satisfied that it is necessary and expedient in the interest of justice that such a witness who has given such false evidence or has fabricated such false evidence, should be tried summarily, then the Magistrate can take cognizance of the offence and after giving the "witness" reasonable opportunity of showing cause, try such "offender" summarily and punish him in accordance with law. Maximum sentence provided for this offence is imprisonment for a term, which may extend to three months or fine, which may extend to Rs. 500/- or both.
15. For the above mentioned discussion, in my considered opinion, the Magistrate acted rather hastily and issued a show-cause notice at a stage, which was not correct. In short, it was a notice issued at a premature stage. Section 344 of Code of Criminal Procedure, 1973 gives this power to the Sessions Court or to the Magistrate, before whom, such a person appears as a witness, and after conclusion of such proceedings, and after being satisfied about the falsity of the evidence given by that witness, or the evidence fabricated by that witness, as the case may be, as and when such a stage comes. In such an eventuality, the Sessions Court, or the Magistrate, may, if he is satisfied, can take proper steps as he may deem fit. The fallacy in the present case at hand lies in the fact that the petitioner had not appeared as a witness at all. She has yet to appear as a witness. Entertaining bail application and disposing of the same, either by way of rejecting it, or by way of granting it, is not a stage, when such a show-cause notice can be issued, and such proceedings are not judicial proceedings within the meaning of section 344 of the Code of Criminal Procedure, 1973, so as to empower the Sessions Court or the Magistrate to issue show-cause notice under section 344 of the Code of Criminal Procedure, 1973. Hence, the following order:
Criminal Writ Petition No. 394 of 1992 is allowed. Rule made absolute in terms of prayer clause (a).
Interim order dated 18th March, 1992 is hereby vacated.
Issuance of certified copy expedited.
16. Petition allowed.