Calcutta High Court (Appellete Side)
Smt. Maharani Santra & Ors. ... vs Unknown on 21 March, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
21.03.2013.
Item No.11 C.R.R. 2434 of 2011
ab
In the matter of : Smt. Maharani Santra & Ors. ... petitioners
Mr. Swapan Kumar Mallick
... for the petitioners
The proceeding being Case No. 78‐C of 2010 under Section 193 of the Indian Penal Code pending before the learned Chief Judicial Magistrate, Howrah has been assailed before me.
The facts of the case is that Amta Police Station Case No. 82 of 1998 dated 7th July, 1998 was registered for investigation against the then Pradhan, Basantpur Gram Panchayat on the allegation that on 7th July, 1998 at about 10 A.M. two trolley vans loaded with 12 new tube‐wells were coming from Basantpur Panchayat Office, when the local people detained the said trolley vans, the van pullers told them that twelve (12) pipes were loaded at the instance of the said Pradhan, namely, Asgar Ali. On such accusation, the Pradhan and one Arup China had been prosecuted under Sections 406/409/120B of the Indian Penal Code in Special Case No. 8 of 2008.
In course of the said prosecution, the petitioner no. 1, who was the de facto complainant of the case, was examined as P.W.‐1, petitioner nos. 2 and 3, who are the van pullers, were examined as P.W.‐2 and P.W. - 3 respectively and petitioner no. 4, the scribe of the FIR, was examined as C.W.‐1. The said witnesses did not support the prosecution case and were declared hostile. The trial ultimately ended in an acquittal. However, in the judgment and order of acquittal dated 16th January, 2010, the learned Trial Judge held as follows with regard to the hostile witnesses:
"P.W.1 deposed that on 7.7.98 he was the member of Basantapur Paschim para Gram Panchayet and that one Asgar Ali was the Prodhan of that Gram Panchayet and on 7.7.98 at about 12 noon she was coming in her house and police came to her house and asked her to sign on a blank paper. In answer to court question she deposed that it was only the sole incident in which she put her signature on a blank paper. She further deposed in chief that she did not even ask the police officer as to why she was to put her signature. However, she has admitted her signature appearing on the F.I..R. which has been marked as Exbt.1. Naturally this witness was declared hostile.
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C.W.1 came to depose that he wrote the FIR as per the instruction of the police and he wrote his name and address on the right side of the last page of the F.I.R. He failed to depose on who signed on the F.I.R. He also deposed that the FIR was written at Basantpur Police Camp P.S. Amta and he started writing FIR at about 5/5.30 P.M. as per the instruction of the police officer. He also deposed that he has no enmity with any person including the police.
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Now let me turn my eyes to the two van pullers i.e. p.w.‐2 Sristi Mallick and P.W.‐3 Sukdeb Dalui. Both the witnesses were declared hostile by the prosecution. P.W.‐2 depose that he was taking iron pipes from the police station in a van rickshaw and police loaded those pipes and thereafter he traveled a short distance when the police intercepted him.
P.W.‐3 also deposed that he was taking iron pipes from the police station in a van rickshaw and police loaded those pipes and thereafter when he travelled at a short distance the police intercepted him. Thus the evidence in chief of this witness and p.w.‐2 is on the same line. I am also of the considered view that both these witnesses perjured to help the Pradhan of the village i.e. accd‐1 and the co‐ accd i.e. accd no.2 so that real story cannot come out before the court leading to the conviction of both the accused persons. "
In view of the aforesaid findings, the learned Trial Judge came to a conclusion that the said witnesses had perjured themselves by making false statements on oath. On such basis, the learned Trial Judge directed prosecution against them.
In spite of service, nobody appears for the State.
Mr. Mallick, learned advocate appearing for the petitioners submits that merely because the witnesses have been declared hostile, prosecution for perjury cannot be instituted. He further submits that the prayer made in the petition of complaint is in the nature of a direction at the behest of the learned Judge and the learned Magistrate was felt with no discretion in issuing process against the petitioners. Learned Judge had not held any enquiry whatsoever prior to directing initiate of impugned prosecution.
I have considered the submission of the learned advocate for the petitioners.
After going through the judgment and order of acquittal it appears to me that the learned Trial Judge formed an opinion that witnesses had perjured themselves merely on the ground that they did not support the prosecution case and were declared hostile.
It is not a case that a witness who had been examined under Section 164 of the Code of Criminal Procedure during investigation had deposed in court contrary to his earlier statement on oath.
It is settled law that mere duration/resiting from earlier statement recorded during investigation without anything more, would not lead to a prima facie conclusion as to the commission of perjury by the witness. No material was placed before the learned Trial Judge to come to a conclusion, even prima facie, that the witnesses had knowingly deposed falsely in court. The learned Trial Judge on the basis of vague surmise come to the conclusion during trial that the version of the witnesses were false and they had knowingly made such false statement on oath.
I am afraid that such conclusion was not based on cogent material and no preliminary enquiry was conducted by the Judge in this regard. I am not unconscious of the fact that in appropriate cases direction of initiation of prosecution for perjury may be ordered without any elaborate enquiry upon notice to the person concerned. Such is not the situation in this case. Merely because the witnesses had not supported the prosecution case and had resiled from their earlier statement from the police during investigation without anything more, prima facie, opinion of perjury cannot be formed. Attending circumstances ought to be looked into to decide that there are reasons to believe that the version of the witnesses on oath was false and that too within their knowledge. No such endeavour appears to have been made by the trial Judge in this regard prior to directing landing of prosecution for perjury.
For the aforesaid reasons, I am of the opinion that in the interest of justice it would not be proper to continue the impugned prosecution. The impugned prosecution is accordingly quashed.
The application is allowed.
Urgent photostat certified copy of this order, if applied for, be supplied as expeditiously as possible.
(Joymalya Bagchi, J.)