Allahabad High Court
Rahul Kushwaha vs State Of U.P. And Another on 19 December, 2019
Author: Rajul Bhargava
Bench: Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 66 Case :- APPLICATION U/S 482 No. - 44706 of 2019 Applicant :- Rahul Kushwaha Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Singh Counsel for Opposite Party :- G.A. Hon'ble Rajul Bhargava,J.
Heard Sri Yogendra Singh holding brief of Sri Ajay Singh, learned counsel for the applicant and Sri Pankaj Saxena, learned A.G.A. for the State.
The present application u/s 482 Cr.P.C. has been filed by the applicant for quashing the entire proceeding of Criminal Case no. 73 of 2017 (State vs. Rahul Kushwaha) u/s 354-A, 376, 452, 506 IPC and u/s 3,4,7,8 of POCSO Act, 2012, Case Crime no. 315 of 2017, P.S. Kotwali Jalaun, District Jalaun pending in the court of Additional District & Sessions Court-II, Jalaun at Orai.
Learned counsel for the applicant has argued that the opposite party no. 2 has lodged totally false and fictitious case of commission of rape against the applicant with his daughter and infact no such incident has taken place. The reality is that the first informant, father of the victim is a greedy person and in order to extort money he has lodged false first information report. Learned counsel has also touched upon merit of the case especially the statement of the victim recorded u/s 161 and 164 Cr.P.C. and other contradictions and inconsistencies and weakness of the prosecution case, however, he submitted that till date six witnesses of fact and some formal witnesses have been examined and it is stated that during the pendency of trial of the applicant, his brother Mohit filed an application u/s 340 Cr.P.C. before the trial court on 25.4.2019 drawing attention of the trial court to several weakness of the prosecution case in order to demonstrate that the prosecutrix first informant and I.O., S.I. Brijesh Kumar who was then posted at P.S. Jalaun be prosecuted u/s 170, 182, 193, 209, 211 IPC in the aforesaid session trial. Copy of the application moved u/s 195/340 Cr.P.C. has been annexed as Annexure-6 to the affidavit.
Learned counsel has further argued that learned Additional Session Judge considering the contradictions, discrepancy and ocular testimony of the victim with regard to medical evidence and several other weakness has passed an order dated 25.3.2019 that miscellaneous case may be registered against the opposite party no. 2, his daughter victim and aforesaid police inspector. It is recorded that in order to pass further order u/s 340 Cr.P.C. certain more evidence is necessary which the applicant Mohit i.e. brother of the applicant shall be filing. Learned counsel submitted that the trial Judge be directed to expedite the proceeding u/s 340 Cr.P.C. within stipulated time period and as the order passed u/s 340 Cr.P.C. is quite detailed and reasoned order by which the trial court has disbelieved the deposition of first informant, victim especially laying stress on the inconsistencies in the medical evidence and thus as the court has drawn proceeding u/s 340 Cr.P.C. in which dates are being fixed the proceedings against the applicant may be quashed.
Learned A.G.A. Strongly opposed and submitted that it is admitted fact that the session trial against the applicant is still pending in which evidence is to be recorded and final order in the case is yet to be pronounced and therefore, order dated 25.3.2019 passed by trial Judge for registration of misc. case in the exercise of its power u/s 340 Cr.P.C. is wholly illegal and is in violation of procedure laid down therein. He has contended that Section 340 Cr.P.C. did not permit for initiation of proceeding under the said section otherwise than at the time of delivery of judgment or final order disposing off any judicial proceeding pending before it, therefore, said order has been assailed by learned AGA as being too premature enough to form a valid and successful foundation for prosecution of the victim and police officer u/s 340 of the Code. He has argued that the trial Judge has exceeded in his jurisdiction in scanning the deposition of the witnesses recorded during trial and disbelieved them during the pendency of trial which is absolutely illegal and perverse. For ready reference Section 340 is as under:-
340. Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in section 195.
In order that provisions of Section 340 Cr.P.C. may apply, the court is under a statutory duty to form an opinion that the witness appearing in the proceeding before it has knowingly or wilfully given or fabricated false evidence for which they can be prosecuted for offence u/s 170, 182, 193, 209, 211 IPC.
I am of the considered opinion that in order to enable the court to form an infallible opinion that the witness who has deposed before the court are speaking false and has given false statement / evidence in their testimony and in order to decide proposed action against the witnesses, it is incumbent on the court to wait for completion of entire evidence and final arguments in the case because the opinion to be formed must be the outcome of appreciation of entire evidence recorded by it. It cannot be permitted as the same would amount to pre-judging the testimony of witness before the trial is over. Any haste shown by the court in the course of trial and any hurried opinion formed in this respect will result in premature consideration of the matter disabling the court from clearly and precisely assessing the truth or reliability of the statement of the witness in its proper perspective.
At this juncture in order to examine the validity of proceedings pending u/s 340 Cr.P.C., reference of Section 344 Cr.P.C. be made, which reads as under:-
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) 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 the plain and simple reading of Section 344 Cr.P.C. the Court is of the opinion that it is in the interest of justice an enquiry should be made in the offences referred to Clause 2(1) of 195 which appears to have been committed or in relation to proceeding in the court can only be examined while passing the final judgment or order as in the case of Section 344 Cr.P.C. as is also required u/s 344 Cr.P.C. which contemplates summary procedure for trial for giving false evidence.
The logical reason why the legislature very consciously provided at the opening part of Section 344 Cr.P.C. at the time of delivery of judgment or final order disposing of any judicial proceeding, a court of Session or Magistrate of First Class 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 the 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.
Thus, from the Section 340 and 344 Cr.P.C. there is clear indication in the aforesaid words that the court should not hurry to form its opinion in the midst of trial of the case that a witness who has deposed in the trial, has knowingly or wilfully given false evidence intending it to be used as evidence in the proceeding.
In the light of the aforesaid, this Court in the exercise of its inherent power u/s 482 Cr.P.C. supervisory jurisdiction u/s 482(3) Cr.P.C. deem it fit to quash the entire proceeding of Criminal Case no. 36 of 2019 (Mudit vs. Veer Singh) pending in the court of First Additional Session Judge, Jalaun at Orai.
I may record that the prayer for quashing of the proceedings against the applicant made in the present application is bereft of merit and is therefore liable to be dismissed.
The present application is dismissed.
It is made clear that any finding and observations made by Additional Session Judge in the order dated 25.3.2019 stands effaced and the Presiding Officer before whom proceedings are now pending shall totally ignore any observations made in the order dated 25.3.2019.
Office is directed to communicate the order to the concerned court forthwith.
Order Date :- 19.12.2019 Dhirendra/