Punjab-Haryana High Court
Sukhchain Singh vs State Of Punjab on 1 May, 2013
Author: Sabina
Bench: Sabina
CRR No. 1586 of 2012 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRR No. 1586 of 2012 (O&M)
Date of decision: 1.5.2013
Sukhchain Singh
......Petitioner
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.L.S.Sidhu, Advocate,
for the petitioner.
Mr.K.D.S.Sidhu, Addl.A.G.Punjab.
****
SABINA, J.
Petitioner has preferred this petition under Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for quashing of order dated 23.9.2011, whereby, proceedings under Section 344 Cr.P.C. were initiated against the petitioner.
Learned counsel for the petitioner has submitted that proceedings under Section 344 Cr.P.C. could not be initiated against the petitioner as the statement of the petitioner recorded during investigation was not on oath. For constitution of offence of perjury, both the statements should have been recorded on oath. In case both the said statements were different then proceedings under Section CRR No. 1586 of 2012 (O&M) 2 344 Cr.P.C.could be initiated. In support of his arguments, learned counsel has placed relinace on T.Bhagi Patra vs. State of Orissa 1996 Crl.L.J. 2423, wherein, it was held as under:-
"Keeping the aforesaid principles in view, the order passed in the present case is to be tested. In the instante case, the informant was examined as P.W. 6 and he has categorically denied the execution of the FIR or the Zimanama. He also stated that no goat of his was ever removed from his possession. The record indicates that the informant has signed his deposition in Oriya, whereas the FIR bears his LTI. The learned Magistrate has not taken any other LTI of the informant to compare with the LTI in the FIR in the absence of any other material, the formation of opinion in an extremely cryptic manner is not appropriate. The recording of satisfaction also suffers from similar infirmity. The Magistrate has not indicated with regard to the expediency or interest of justice in proper perspective. The discretion used by the Magistrate to launch the prosecution has not been properly exercised. The approach of the Magistrate being antirely erroneous, the impugned order is unsustainable. Ex proprio motu direction of the Court is unjustified.
8. The order of the Magistrate is also not sustainable as the concept of "false evidence" in the instant case is not attracted. The informant was examined as P. W. 6 and he denied the execution of the FIR or the Zimanama. He also CRR No. 1586 of 2012 (O&M) 3 stated that no goat of his was ever removed from his possession. There is no material on record to show that this evidence was false, inasmuch as, there is no other statement on oath to have a clear opinion that the witness gave false evidence. The lodging of an FIR before the police cannot be treated as a statement on oath. It is not a statement in a judicial proceeding. An FIR or a complaint cannot be the basis to arrive at the conclusion that the witness has given false evidence as the same would run contrary to the language used in Section 344 of the Code, comparison between the FIR, or lodging of the FIR, and the statement on oath in Court cannot form the foundation for launching prosecution under Section 344 of the Code. It is requisite, may, essential, that is order to make a person liable for false evidence, he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on subsequent occasion. The earlier statement regarding a set of facts must be on oath and his subsequent statement also must be on oath. If both the statements become irreconcilable there is scope of forming an opinion for initiation of the prosecution. In this regard, the decision in Emperor v. Bankatram Lachiram, 1904 (1) Criminal Law Journal, 390, may be profitably quoted :-
"It is a well-known rule of law, applied by eminant CRR No. 1586 of 2012 (O&M) 4 judges to case of perjury arising out of contradictory statements that the Court dealing with them should not convict unless fully satisfied that the statements are from every point of view irreconcilable; and if the contradiction consists in two statements opposed to each other, as to matters of inference or opinion on which a man may take one view at one time and a contrary view at another, there can be no perjury, unless he has, on oath, staled facts on which his first statement was based and then denied these facts on oath on a subsequent occasion."
(Emphasis supplied) Scrutinized by these parameters, it is crystal clear that the FIR not being a piece of evidence on oath in a judicial proceeding, the concept of giving false evidence in terms of Section 344 of the Code is not attracted." Learned counsel for the petitioner has further placed reliance on Ismail Khan vs. State 1993 (1) RCR 227, wherein, it was held as under:-
"The learned Magistrate has perused the complaint given by the accused and his deposition and then he came to the conclusion that the petitioner has committed perjury. It is necessary that in order to make a person liable for perjury, he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on a subsequent CRR No. 1586 of 2012 (O&M) 5 occasion. His earlier statement regarding the facts must be on oath and his subsequent statement also must be on oath and if both the statements are opposed to each other and they cannot be reconciled, then a person may be liable to be proceeded against for perjury under S. 344, Cr.P.C. or under S. 193, IPC"
Learned State counsel, on the other hand, has opposed the petition and has submitted that the petitioner had turned hostile during trial, hence, he was liable to be prosecuted under Section 344 Cr.P.C.
In the present case, FIR in question was lodged against accused Balwinder Singh on the basis of statement of Sukhchain Singh.
The case of the complainant, was that the accused had demanded bribe from him for making report for issuance of utilisation certificate. Accused was caught red handed on the basis of raid organised by the vigilance department. However, during trial, complainant as well as the shadow witness did not support the prosecution case. Learned Special Judge ordered that proceedings under Section 344 Cr.P.C. be initiated against the complainant as well as the shadow witness. Hence, the proceedings under Section 344 Cr.P.C. were initiated against the petitioner. The case of the petitioner is covered by the judgments relied upon by the learned counsel for the petitioner.
In the present case, the statement made by the petitioner before the police was not on oath. However, the statement made CRR No. 1586 of 2012 (O&M) 6 before the Court by the petitioner was on oath.
Thus, in the present case, both the statements made at variance with each other had not been made on oath, therefore, proceedings under Section 344 Cr.P.C. could not have been initiated against the petitioner. However, proceedings under Section 182 IPC could have been initiated against the petitioner for giving false evidence before the police.
Accordingly, this petition is allowed. Part of the impugned judgment dated 23.9.2011, whereby proceedings against the petitioner under Section 344 Cr.P.C. were ordered to be initiated, is quashed. Consequently, notice dated 17.11.2011 (Annexure P-1) is also set aside. However, the investigating agency would be at liberty to initiate proceedings against the petitioner under Section 182 IPC.
(SABINA) JUDGE May 01, 2013 anita