Orissa High Court
T. Bhagi Patra vs State Of Orissa on 23 February, 1996
Equivalent citations: 1996CRILJ2423
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. The order of the learned Judicial Magistrate First Class, Banpur, in Criminal Misc. Case No. 35 of 1995 taking cognizance of an offence under Section 344 of the Code of Criminal Procedure (hereinafter referred to as "the Code") is challenged in this application under Section 482 of the Code. As this order taking cognizance is a consequence of the direction issued in G.R. Case No. 304 of 1994, wherein the learned Magistrate formed an opinion and recorded satisfaction for initiation of prosecution under Section 344 of the Code, the prayer is for quashing of both.
2. The factual back-drop portrayed by the petitioner is as follows:
One Parasad alias Parsuram Sahu stood charged under Section 379, Indian Penal Code, and faced trial in G. M. Case No. 304 of 1994 before the Judicial Magistrate First Class, Banpur. The prosecution case was that on 20-11-1994 the accused forcibly took away one goat of the informant. The informant (petitioner herein) being unseccessful in his attempt to get back the goat, lodged a first information report at Naval Outpost on 21 -11 -1994 at 7 p.m. and on the basis of the said FIR the criminal action was sot in motion. As no incriminating material was brought on record, the learned Magistrate dispensed with the recording of the statement under Section 313, Cr. P. C. On behalf of the prosecution 6 witnesses were examined and the defence examined none. P. Ws 1 to 5 who were cited as independent witnesses denied to have any knowledge in relation to the alleged occurrennce. The informant who was examined as P. W. 6 denied to have lodged any FIR before the police. Due to lack of evidence the trial Court acquitted the accused by judgment dated 19-4-1995. However, while acquitting the accused, the learned Magistrate came to hold that the informant, had intentionally and knowingly given false evidence in the case and, therefore, it was necessary that he should be tried summarily under Section 344, Cr. P. C. He directed a separate Misc. Case to be registered and accordingly Criminal Misc Case No. 35 of 1995 was instituted before the said Court on the same date i.e. 19-4-1995 and the learned Magistrate took cognizance under Section 344, Cr. P. C. and directed issuance of show cause which is the subject matter of challenge in the present application.
3. Mr. R. K. Nayak, the learned counsel for the petitioner raises the following contentions :-
(a) The formation of opinion by the learned Magistrate to initiate a proceeding under Section 344 against the petitioner in the facts and circumstances of the instant case was not justified;
(b) In absence of any material on record to establish that there is a prima facie case under Section 344, Cr. P. C. the order of the learned Magistrate is unsustainable;
(c) The pre-conditions for initiation of a proceeding under Section 344, Cr. P. C. having not been satisfied, the order is vitiated;
(d) The concept of Section 344 is not attracted into the present case, inasmuch as the basis ingredient of "false evidence" has not been satisfied;
(e) The opinion formed in the main G. R. Case being unsustainable, the consequential order passed in Criminal Misc. Case No. 35 of 1995 is untenable.
4. Mr. A.K. Mohapatra, the learned Additional Government, has supported the order of the learned Magistrate. His submission is that the opinion formed by the learned Magistrate does not suffer from any infirmity. He vehemently urges that a witness who has deposed falsehood in a Court of law should be strictly dealt with.
5. To appreciate the rival contentions, it is necessary to refer to Section 344, Cr. P. C. The relevant portion of the said Section is quoted 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 expression 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 arid 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.
From the language used in the aforesaid provision, it is apparent that an opinion has to be formed to the effect that the witness has given false evidence; satisfaction has to be recorded that it is necessary and expedient in the interest of justice that the witness should be tried summarily. The purpose of this provision is to create a restraint on the witness from stating falsehood in Court. No witness should foster the idea and nourish the hope that he can tender false evidence in a Court of law and escape. In the temple of justice one is expected to speak the truth; that is the mandate of the law, command of ethicality and edict of conscience. The majesty of law condemns statements based on falsehood. On erroneous assumption, one may state with regard to a particular situation in his own indivdualistic manner, but deliberate and conscious act of stating falsehood in a Court of law is deplorable and reprehensible.
While the purpose of the provision is to see that the witness conducts himself with propriety, simultaneously the witness is also not without protection. The Legislature casts a duty on the Court to form an opinion and to record its satisfaction. Formation of an opinion and satisfaction are two pre-conditions before the prosecution under Section 344 of the Code is launched.
6. The Magistrate is required to form an opinion and "opinion" has to be formed to the effect that a witness appearing in the proceeding has knowingly or wilfully given false evidence. The formation of an opinion is not an empty formality. A summary proceeding under this section is to be initiated if it appears that the false evidence tendered is deliberate and conscious. The Court is expected to come to a prima facie conclusion that the witness has made false statements and there should be materials to justify formation of such an opinion. In the absence of any positive materials it is not appropriate to proceed in a mechanical manner. Opinion of a Court has to be supported by reasons.
Formation of an opinion is not the end of the matter. The Court is also required to record satisfaction 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. It is not that in every case, the prosecution has to be launched. The Court has a duty to use its judicial discretion. Direction to proceed under Section 344 of the Code cannot be in a routine manner. Direction in a mechanical and cryptic manner is not in the interest of justice. The Court has to use the discretion in a judicious manner. In this regard the Apex Court is Santokh Singh v. Ishar Hussain AIR 1973 SC 2190, expressed as follows :-
Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The Court orders prosecution in the larger interest of the administration of justice and not to gratify the feelings of personal revenge or vindictiveness or to serve the ends of a private party. Two frequent prosecutions for such offences tend to defect its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the Court should direct prosecution.
7. 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 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 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.
9. In view of the aforesaid analysis, I conclude and hold that launching of the prosecution under Section 344 of the Code against the Petitioner is not justified. Cntinuance of this proceeding is neither in the interest nor expediency of justice; and I accordingly set aside the direction contained in the order dated 19-4-1995 passed in G. P. Case No. 304 of 1994 and, as a consequence thereof, the order taking cognizance passed in Criminal Misc. Case No. 35 of 1995 is also set aside. All other consequential actions taken in pursuance of the order taking cognizance in Criminal Misc. Case No. 35 of 1995 are also hereby quashed.
10. The Criminal Misc. Case is accordingly allowed.