Punjab-Haryana High Court
Tota vs State Of Punjab on 23 February, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.278-SB of 2003
Date of decision: 23rd February, 2011
Tota
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Vinod Khunger, Advocate for the appellant.
Mr. J.S. Bhullar, Assistant Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Jamila wife of Iqbal had filed a criminal complaint under Sections 302/120-B/34 IPC against Neelam widow of Tarsem alias Sema, Bagicha son of Kashmir Singh, Karamjit wife of Bagicha and Kashmira son of Alla Ditta. Before the accused could be summoned, complainant led preliminary evidence. The present appellant Tota son of Saraj was examined as PW-3 by the Court of Judicial Magistrate (1st Class), Ferozepur in the preliminary evidence in support of the complainant. Before the Magistrate, it was stated by the present appellant that on 26th July, 1999 all the accused came and made an extrajudicial confession. Thereafter, the complaint was committed and charges were framed against the accused. Present appellant Tota son of Saraj appeared on 28th January, 2003 as PW-4 in the Court of Additional Sessions, Ferozepur and made following statement in his examination in-chief:
"I have no knowledge about any fact of present case. The accused present in the Court today had been coming to Criminal Appeal No.278-SB of 2003 2 me quite often. They never disclosed any fact to me. (Addl. PP request that witness has turned hostile and he be allowed to cross examine him. The witness is not supporting the prosecution case and is trying to suppress the facts from Court. So Addl. PP is allowed to put those questions to him, which can be put during cross-examination.)"
On the day, when the present appellant turned hostile, he was summarily tried for giving false evidence and was sentenced under Section 181 IPC to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for one month. While convicting and sentencing the appellant, the Court of Additional Sessions Judge, Ferozepur held as under:
"2. The Judicial Magistrate was a public servant and had the authority to administer oath to this witness and he made his statement after the oath was administered to him. He has made a contradictory statement before this Court. Either the statement made by him before the Judicial Magistrate is false or the statement made by him before this Court is false.
3. He is thus guilty of willfully giving false evidence. It was thought expedient in the interest of justice that he be tried summarily for giving false evidence. Notice of offence u/s 181 IPC for willfully giving false evidence was served upon him. In reply to that notice he simply stated that he is illiterate person. Merely on the ground that he is illiterate it cannot be said that he has been able to show the cause for making two different statements about the same facts. He willfully gave false evidence by making two different statements on the same aspect of the case. He is, therefore, held guilty for the offence u/s 181 IPC and is sentenced to undergo RI for a period of three months and to pay a fine of Rs.500/- and in default thereof to further undergo RI for a period of one month."Criminal Appeal No.278-SB of 2003 3
I have given my thoughtful consideration to the arguments advanced by counsel for the appellant. In this appeal, following two questions arise for consideration of this Court:
(a) Whether for recording conviction and sentence under Section 181 IPC, the trial Court could follow summary procedure?
(b) Whether the bar prescribed under Section 195 Cr.P.C. and the enquiry envisaged under Section 340 Cr.P.C. could be dispensed with for taking cognizance of an offence punishable under Section 181 IPC?
In the humble opinion of this Court, the answer to both these questions is in negative.
To answer the first question, it is to be noticed that Section 181 IPC empowers the Court to punish the accused with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. Section 2(w) Cr.P.C. defines a 'summons case' and Section 2(x) Cr.P.C. a 'warrants case' and they read as under:
"2. Definitions -
XXXX XXXX XXXX
XXXX XXXX XXXX
(w) 'Summons-case' means a case relating
to an offence, and not being a warrant case.
(x) 'Warrants-case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years."
Since Section 181 IPC prescribes punishment, which can extend to three years, the case against the accused-appellant was to be tried as a warrants case. For trial of a warrants case, procedure has been laid down in Chapter 19 of the Code of Criminal Procedure, 1973. Section Criminal Appeal No.278-SB of 2003 4 240 Cr.P.C. states that in a warrants case, charge is to be framed against the accused. No such procedure was followed. No charge was framed. No opportunity was given to the accused-appellant to plead not guilty and claim trial. The procedure followed by the trial Court is totally alien to the criminal trial of a warrants case. The accused was appearing as a witness. He had resiled from his previous statement made in the Court of Judicial Magistrate in preliminary evidence. The trial Court straightaway convicted and sentenced him under Section 181 IPC. Even procedure of trial of a summons case for Magistrates, provided in Chapter 20, was not followed. Substance of accusation was not stated to the accused under Section 251 Cr.P.C.
It is a well settled legal position that for the trial of a warrants case, summary procedure cannot be followed. The approach adopted by the trial Judge in no way can be appreciated. Powers to punish under Section 344 Cr.P.C. and Section 181 IPC are distinct. A separate procedure for trial of both has been specified. Section 344 Cr.P.C. calls for a summary trial, whereas in Section 181 IPC the case is to be tried as a warrants case. This Court in 'Jaskaran v. State of Haryana' 2008(3) RCR (Criminal) 125 observed as under:
"3. ... ... ... Petitioner was to be tried under Section 344 I.P.C. in summary procedure, Section 193 IPC requires that the petitioner should have been charged after holding an inquiry under Section 340 Cr.P.C. for trial of offence under Section 193 I.P.C. no notice can be issued, only charge could be framed. Section 344 Cr.P.C. vests powers in the courts to summarily try and punish the accused. It is for this reason that Section 344 Cr.P.C. prescribes sentence also. But in the present case, conviction has been recorded under Section 193 IPC read with Section 344 Cr.P.C., which in no way can be sustained. Either learned Special Judge should have convicted the petitioner under Section 344 Cr.P.C. and ought not to have Criminal Appeal No.278-SB of 2003 5 invoked Section 193 IPC. Once, the Judge opted to try the petitioner for the offence under Section 193 IPC, it was incumbent upon him to hold an inquiry under Section 340 Cr.P.C. and then to frame a charge and try the offender for a warrant case as minimum sentence prescribed under Section 193 IPC is three years."
Thus, a grave prejudice has been caused to the appellant, as he was not made to understand the procedure which was to be followed for recording his conviction. The appellant has been sentenced under Section 181 IPC by following a procedure which is neither summary nor of warrants case. In a single day, immediately after the evidence of the appellant had concluded, he was convicted and sentenced. He was given no opportunity to explain his conduct. No reasonable opportunity was provided to the appellant to defend himself. This Court condemned such a procedure in Jaskaran's case (supra) and held as under:
"5. I am conscious of the fact that in the present case, sentence awarded is two months simple imprisonment. Even otherwise, everything was done in a single day. Accused appeared as witness. He was served a notice. He was tried and convicted at the same time. Section 344 Cr.P.C. requires that offender should be given a reasonable opportunity. Reasonable opportunity cannot be made meaningless. It has to be effective. After issuing the notice, it would have been desirable that reasonable time should have been allowed to the petitioner to think, make out his defence. Some times, a great hurry causes rashness, which is not permissible in the discharge of solemn judicial functions."
To answer the second question, this Court has to take note of Section 195 Cr.P.C., which reads as under:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-Criminal Appeal No.278-SB of 2003 6
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code,(45 of 1860) or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:Criminal Appeal No.278-SB of 2003 7
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
Section 195 Cr.P.C. specifically states that no Court shall take cognizance of any offence punishable under Section 172 to Section 188, both inclusive, of the Indian Penal Code, except on a complaint in writing of the public servant concerned. In the present case, in case the Court was aggrieved against the conduct of the accused, who had given Criminal Appeal No.278-SB of 2003 8 a false statement, it was incumbent to file a complaint in writing before the Court of competent jurisdiction. The Court of Additional Sessions Judge should have filed the complaint, which could have been tried by the Court of concerned Chief Judicial Magistrate, who would have assigned the same to a competent Court of Magistrate first class. No such procedure was followed. Straightaway, the accused was convicted. Even no enquiry under Section 340 Cr.P.C. was held. No opportunity was given to the accused-appellant to show cause as to in what circumstances he had appeared before the Magistrate first class. For committing a breach of Sections 195 and 340 Cr.P.C., the conviction and sentence of the appellant cannot be sustained.
As a result of the above discussion, the present appeal is accepted. Conviction and sentence awarded to the appellant is hereby set aside and he is acquitted of the charges.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 23, 2011 rps