Delhi District Court
State vs Asi Shankar Lal Etc on 1 September, 2010
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IN THE COURT OF SH. ATUL KUMAR GARG, LD ASJ KKD COURTS DELHI.
Misc No. 01/09
State Vs ASI Shankar Lal etc
01.9.2010
ORDER
This order shall disposed off an application for staying the proceeding as well as show cause notice issued by this court to the effect that why the accused persons, namely, Ct. Bale Ram, PW-2 Ct. Mahabir Singh, Ct. Shajuddin, PW-4 ASI Shanker Lal, PW-5 Ct. Maharaj, PW-6 Ct. Narender and PW-7 SI Dharam Pal they should not be tried summarily for giving or fabricating the false evidence.
Record perused. The present application has been filed for staying the proceeding u/s 344 (4) CrPC which has been arisen in pursuance of show cause notice issued by this court why these witnesses should not be tried summarily for giving or fabricating the false evidence. The court while delivering the judgment in case FIR NO. 268/07 titled as Jonson Etc has reached to the conclusion that PW-1 to PW-7 being the members of the raiding party deposed falsely that the accused persons had assembled on 27.7.2007 at Dallu Pura Petrol Pump having illegal arms sitting in the empty space surrounded by the bushes behind the petrol pump Dallu Pura and they were planning to commit dacoity. The court had further reached at conclusion that they all prepared the false and fabricated documents with the intention that the same may be used against the persons. Court 2 had taken the cognizance for the offence u/s 191/192 IPC read with section 344 CrPC and issued the show cause notice to all the witnesses from PW-1 to PW-7 namely Ct. Bale Ram, PW-2 Ct. Mahabir Singh, Ct. Shajuddin, PW-4 ASI Shanker Lal, PW-5 Ct. Maharaj, PW-6 Ct. Narender and PW-7 SI Dharam Pal why they should not be tried summarily and punished for the offence. Reason for coming to the conclusion of giving false evidence is that the prosecution did not project the presence of any constable from P.S who had come to spot to write the documents Ex. PW2/1, PW2/2, PW4/A, PW4/2, PW1/1 and PW4/3 while the prosecution case is that SI Dharam Pal had reached to the spot after registration of the case and he prepared the site plan as well as recorded the statements of the witnesses. While ASI Shanker Lal headed the raiding party and apprehended the accused persons.
The present application has been filed u/s 344 (4) of CrPC where the accused persons had made prayer that the proceedings against them be stayed in view of the section 344 (4) CrPC during the pendency of the Revision petition. They had said that this court vide judgment and order dated 25.5.2009 had given the findings that the applicants/accused persons had prepared the false and fabricated the documents with the intention that the same may be used against the accused persons. This court has further issued the show cause notice u/s 344 CrPC calling upon them as to why they should not be tried summarily for the offence u/s 191/192 IPC read with section 344 CrPC. According to them, they had preferred the revision petition in the High Court and as per section 344 (4) CrPC if the appeal or revision is preferred or filed against the judgment or order in which the opinion referred to in that sub section has been expressed, then it is obligatory for the court 3 to stay of the proceedings of the case as such they had made prayer that the same may be stayed.
In the present case, Sh. Ramesh Kumar Ld. APP attached to this court earlier was appointed as amicus curie had submitted that clause (4) of section 344 CrPC is not applicable to the present case.
For the sake of convenience, the clause 4 of section 344 CrPC reproduced here:-
"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 bare perusal of the clause 4 of Section 344 CrPC, it is quite clear that if any appeal or revision has been preferred or filed against the judgment or order in which the opinion preferred in that sub section has been expressed, then the proceedings shall be stayed by the court who had initiated the proceedings. But here in the present case no appeal or revision has been preferred or filed against the judgment and order by the State in the High Court. They had filed the revision petition against the order of taking of cognizance of the offenceu/s 191/192 IPC read with section 344 CrPC. Moreover, accused persons themselves 4 had stated that they had not pursued their revision petition at present, therefore, on both counts the present application is without devoid of any merit is hereby dismissed.
Now, the show cause notice is taken up. The court had issued the show cause notice to call the accused persons namely Ct. Bale Ram, PW-2 Ct. Mahabir Singh, Ct. Shajuddin, PW-4 ASI Shanker Lal, PW-5 Ct. Maharaj, PW-6 Ct. Narender and PW-7 SI Dharam Pal. They had invariably replied that since in the present case, disputed and complicated question of facts with regard to giving false statement and fabricating and forging an evidence are involved, therefore, the law lays down that for deciding such complicated questions of fact normal procedure providing full dressed trial ought to be resorted to, instead of deciding such issues by summary procedure as contemplated in section 344 CrPC. According to them, it is only in very rare and flagrant cases wherein the perjury is of unchallengeable nature, the discretion has been given to the Trial Court to invoke section 344 CrPC. They had also stated the objects and reasons for incorporating section 344 CrPC which runs as under:-
" A mere repeal of a section, however, without some provision for punishing perjury will not be a satisfactory solution. Some provision whereby perjury of a flagrant and unchallengeable type could be effectively punished summarily without seriously prejudicing a fair trial of the person concerned is desirable. We are not unaware of the risks involved in giving power to punish perjury to the very court before which it is committed... The provision which we recommended is of a very limited character, being 5 confined to obvious cases of perjury and authorizing a small punishment. Even this procedure will be discretionary, so that where the court is of opinion that perjury, even though committed by contradictory statements on oath, is likely to raise complicated questions or deserves more serious punishment than that permissible under the proposed section, or is otherwise of such a nature that the ordinary procedure is more appropriate, the court will not proceed under the proposed section. "
They all deposed that show cause notice does not disclose as to which documents has been fabricated by the noticee with an intention to sue the same against the accused persons so as to enable the noticee to give effective reply to such instances and allegations. According to them, accused persons namely Jonson, Govind, Anil and Jagan @ Jugnu have been acquitted due to lack of evidence and there is no false statement made by the noticee nor he has fabricated any document with an intention to use the same against the accused persons.
The crux of the reply of all the show cause notices is that full dressed trial is needed and court has not given any instance as to which documents were prepared falsely and fabricated and the offence defined in section 191/192 IPC did not fall within the mischief of section 344 CrPC.
So far so the arguments of requirement of full dressed trial of the accused persons are concerned that is not the requirement of section 344 CrPC. There is a limitation placed by the legislature upon the Session Court or the Magistrate while expressing an opinion that the witnesses appearing in such 6 proceedings had knowingly or willfully had given false evidence or fact of fabricated evidence, he shall not sentence the accused persons for a term extending three months or sentence the accused persons to pay a fine of Rs. 500/-. If he resorted the trial u/s 344 CrPC and tried the offenders summarily. In case, the court has not resorted this provision then the punishment for the above said offence shall be extended for the imprisonment up to seven years if the offenders are found guilty.
So far so, the another leg of arguments of the applicants/offenders are concerned that the court had not explained to them as to which documents were falsely prepared by them and what they deposed falsely, That arguments in this regard does not hold good because of the explicit reasoning given by the court that they all depose falsely to the effect that the accused persons were apprehended on the alleged date time and place at the instance of secret informer and they were planning to commit dacoity and arms and ammunitions were recovered from their possession subsequently. The court had given in explicit terms that nothing like this as projected by the prosecution has ever been happened otherwise the witness did not depose like this. Therefore, their replies are rejected out rightly. Consequently, all the applicants namely Ct. Bale Ram, PW-2 Ct. Mahabir Singh, Ct. Shajuddin, PW-4 ASI Shanker Lal, PW-5 Ct. Maharaj, PW-6 Ct. Narender and PW-7 SI Dharam Pal are held guilty for the offence u/s 191/192 IPC read with section 344 CrPC .
Now, the accused persons claims leniency considering their services. Accused SI Dharam Pal claims leniency submitting that he has been left only eleven months in his service and his carrier would be spoiled if he has been 7 sentenced. ASI Shanker Lal also submits that he has been left the only four or five years in his service. Ct. Mahavir, Ct. Shajuddin, Ct. Maharaj, Ct. Bale Ram and Ct Narender submits that they are aged about 42 years, 44 years, 41 years, 38 years and 38 years respectively having their families and they are ahead of their carriers.
I have heard the submissions of the accused persons/applicants. Though, accused persons/offenders had not acted in way, the law requires and they implicated the innocent persons namely Jonson, Govind, Anil and Jagan @ Jugnu u/s 399/402 IPC & 25 Arms Act P.S. New Ashok Nagar. Yet, considering of their ages as well as their carrier, I do not think it fit to sentence them for imprisonment. However, they have given a chance to reform themselves. Therefore, they are administered the warning and admonished. They will not indulge in such a type of activity in future to implicate the innocent persons in false cases. With these observations, the application u/s 344 CrPC as well as show cause notices stand disposed off. File be consigned to Record Room.
Announced in open court.
Dated 01.09.2010 (ATUL KUMAR GARG) ASJ/ KKD/01.9.2010 8