Kerala High Court
Varghese Alias Sibi vs State Of Kerala on 22 February, 1989
Equivalent citations: 1989CRILJ2041
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. The appellant was a witness in a sessions trial. The accused in that sessions case were acquitted by the Sessions Court. However, learned Sessions Judge convicted the appellant for giving false evidence in his Court and sentenced him to undergo rigorous imprisonment for two months. Hence this appeal
2. As the testimony of the appellant in the sessions trial was found to be false in certain respects, the Sessions Judge ordered for initiation of proceedings against him under Section 344(1) of the Cr. P.C. (for short 'the Code'). A Miscellaneous Case was then registered against him. When the accusation against him was read over to him, he pleaded not guilty thereto. No evidence was recorded. The appellant reported that he has no evidence. Learned Sessions Judge heard the arguments and pronounced the impugned order, as per which the appellant was convicted and sentenced.
3. It is evident that the learned Sessions Judge has not followed the procedure in accordance with law. Section 344(1) of the Code provides that after taking cognizance of the offence, the Court may "after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily...". Sub-section (2) says "in every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials". Section 262 of the Code provides the procedure for summary trials. Sub-section (1) says "in trials under this chapter, the procedure specified in this Code . for the trial of summons case shall be followed except as hereinafter mentioned". Chapter XX of the Code deals with the trial of summons case. Section 254 says that when a Magistrate does not convict the accused on his plea of guilty "the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear-the accused and take all such evidence as he produces in his defence". In this case, learned Sessions Judge has not followed the aforesaid procedure. No evidence has been taken. Without affording an opportunity to the appellant to cross-examine the witness whose evidence is to be used against the appellant, law forbids such evidence being used against him. As the procedure for summary trial has not been followed by the learned Sessions Judge, the impugned order cannot be sustained in law.
4. The foundation for initiating action against him under Section 344(1) has not been laid by the learned Sessions Judge and hence no useful purpose will be served by remitting this case to the lower Court to follow the correct procedure. Sessions Judge has expressed some opinions in the judgment in i the Sessions Case in which the appellant was examined as P.W. 1. The relevant portions in the said judgment is extracted below:
The evidence of P.W. 1 will clearly reveal that he was giving false evidence.... A reading of the entire deposition will clearly reveal that he was giving false evidence before Court.... Since it has come out in evidence that P.W. 1 was giving false evidence, action should be taken against him. In the circumstances of the case, I think, it will be sufficient to proceed against P.W. 1 under Section 344 (1) of the Cr. P.C. Take an MC. against P.W. 1.
5. For initiating proceedings under Section 344(1) of the Code the Court shall have, at the time of delivery of judgment, expressed 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...". "The judgment does not contain the expression of the opinion that P.W. 1 had "knowingly or wilfully" given false evidence. Emphasis is given to the aforesaid expression because mere giving false evidence in a proceeding is not sufficient to initiate action under the sub-section, for, there would be many instances in judicial proceedings when Courts would come across witnesses giving false evidence. It would not be advisable, nor would it be feasible to launch proceedings against all such witnesses in all such cases. It is only when the Court is of opinion that a witness has "wilfully or knowingly" given false evidence that the Court can consider whether action against him is necessary in the interest of justice. As pointed out by a Division Bench of this Court in Janardhanan v. State of Kerala 1978 Ker LT 546 : 1979 Cri LJ NOC 96, "the opinion that the Court expresses at the time of delivery of judgment...that a witness examined therein has knowingly or wilfully given false evidence should not be a fanciful or capricious opinion but a discrete one founded on materials sufficient to sustain the charge of perjury". The expression of opinion in the basic judgment that the witness "had knowingly or wilfully given false evidence or had fabricated false evidence" is sine qua non for initiating further action under 5.344(1).
6. Equally important is the insistence that the Court must be "satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving false evidence". It is of advantage in this context to refer to the observations of the Supreme Court in Shabir Hussain v. State of Maharashtra : "Where the Court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interests of justice to make a complaint, it has a discretion not to make a complaint". When the discretion is exercised in favour of initiating action under Section 344 of the Code, there must be satisfaction for the Court that it is necessary and expedient in the interest of justice that the witness should be tried summarily. The said satisfaction is not meant to be subjective only. It must be objective. It must appear from the proceedings that the Court initiated action only on such satisfaction. There is nothing on record in this case to show that the Sessions Judge was so satisfied.
In the result, I allow this appeal and set aside the conviction and sentence. Appeal is disposed of in the above terms.