Punjab-Haryana High Court
Narinder Pal Kaur vs State Of Punjab on 20 August, 2013
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. M-7073 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Misc. No. M-7073 of 2011 (O&M)
Date of decision: 20.08.2013
Narinder Pal Kaur
...Petitioner
Versus
State of Punjab
...Respondent
CORAM : HON'BLE MS JUSTICE RITU BAHRI
Present: Mr. J.B.S. Gill, Advocate,
for the petitioner.
Mr. D.S. Virk, AAG, Punjab.
RITU BAHRI, J.
This petition under Section 482 Cr.P.C., is for quashing of the notice dated 20.01.2010 (Annexure P-2) given to Narinder Pal Kaur- petitioner under Section 344 Cr.P.C.
The petitioner was cited as a prosecution witness in a case titled as 'State Vs. Rashpal Singh @ Pali', arising out of FIR No.138 dated 11.08.2005, under Sections 353 and 186 IPC, registered at Police Station Garhshankar, District Hoshiarpur. The aforesaid FIR was registered on a statement made by Vijay Kumar Handa alleging that he was working as Mandi Supervisor at Saila Khurd. On 10.08.2005 at 11.40 A.M., he was assaulted by accused Rashpal Singh @ Pali in the office of Market Committee, Saila Khurd, in the presence of Narinder Prasher Ajay 2013.08.24 13:50 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-7073 of 2011 (O&M) 2 Pal Kaur-petitioner. However, while appearing as PW-4 in the Court on 23.011.2009, the petitioner resiled from the prosecution version.
She did not make any application to the policce that she has wrongly been cited as a prosecution witness in the aforesaid case, therefore, a notice under Section 344 Cr.P.C. (Annexure P-2), was served upon her by the Sub Divisional Judicial Magistrate, Garhshankar on 20.01.2010.
Learned counsel for the petitioner has referred to the statement (Annexure P-1) made by the petitioner while appearing before the trial Court as PW-4 and contended that she did not recognise anybody in the Court. She denied having made any statement to the police that Rashpal Singh, driver of Vijay Kumar Handa, had caught hold of him from his throat and gave him kick blows in his abdomen. He has further referred to the judgment delivered in cases Ismail Khan Vs. The State, 1992 Crl. L.J., 3566 and T. Bhagi Patra Vs. State of Orissa, 1996 Crl. L. J. 2423 and contended that the petitioner cannot be proceeded under Section 344 Cr.P.C., as the statement made by her under Section 161 Cr.P.C., was not on oath and therefore, perjury cannot be attributed to her merely on account of the fact that while appering as PW-4 during the trial, she has refused to identify the accused.
Learned State counsel, on the other hand, has vehemently argued that the petitioner was an employee in the office of Market Committee, Saila Khurd and she was cited as a prosecution witness in the case. No application was made by her to the prosecution that she Prasher Ajay has wrongly been cited as a prosecution witness.
2013.08.24 13:50I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-7073 of 2011 (O&M) 3
Heard, counsel for the parties.
The Hon'ble Supreme Court in case K.T.M.s. Mohd. And another Vs. Union of India, 1992 (2) Rcr (Criminal) 398, had examined the provisions of Section 193 IPC and held as under:-
"36. The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under Section 193 Indian Penal Code, but it must be established that the deponent has intentionally given a false statement in any stage of the 'judiial proceeding' or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice."
In Ismail Khan's case (supra), the Hon'ble Karnataka High Court has observed that if there are two different statements made on oath, which are contrary to each other, a person can be held liable for perjury. In paragraph 10 of the aforesaid judgment, it was further observed as under:-
"10. In that case, it is held that in order to make a person liable for perjury, the earlier statement of the person must be on oath and his subsequent statements also must be on oath and it is not only necessary that he made a statement which is false, but also that he either knew or believed it to be false or did not believe it to be true. In Santokh Singh v. Izhar Hussain; AIR 1973 SC 2190, the Supreme Court has held as follows:
"Index Note; (B) Criminal P.C.S. 195(b) "Power of Court to direct prosecution for giving false evidence- Exercise of- Brief Note:- (B) 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 ccircumstances when it determines the questions of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Two frequent Prasher Ajay 2013.08.24 13:50 prosecutions for such offences tend to defeat its very objecct. It is I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-7073 of 2011 (O&M) 4 only in glaring cases of deliberate falsehood where cconviction is highly likely, that the court should direct prosecution."
Similarly, in T. Bhagi Patra's case (supra), the Hon'ble Orissa High Court has held that lodging of an FIR before the police cannot be treated as statement on oath. Therefore, if the complainant comes before the Court and makes a statement, the statement made in the FIR cannot be made basis for his conviction under Section 344 Cr.P.C. It is essential that in 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 occcasion. The earlier statements regarding a set of facts must be on oath and his statement also must be on oath. If both the statements beome irreconcilable, there is scope of forming an opinion for initiation of the prosecution. In paragraph 7 of the judgment, it was further observed as under:-
Keeping in view 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 PW6 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 entirely erroneous, the impugned order is unsustainable. Ex proprio motu direction of the Court is unjustified."Prasher Ajay 2013.08.24 13:50
In the light of the above discussion, this Court is of the I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-7073 of 2011 (O&M) 5 opinion that criminal proceedings under Section 344 Cr.P.C., cannot be initiated against the petitioner merely on the basis of a statement made before the trial Court while appearing as PW-4. A statement made before the police under Section 161 Cr.P.C., was not a statement on oath and therefore, perjury cannot be attributed to the petitioner that while appearing as PW-4 before the trial Court, she had refused to identify the accused.
Resultantly, this petition is allowed and notice dated 20.01.2010 (Annexure P-2) given to the petitioner under Section 344 Cr.P.C., is quashed with all consequential proceedings arising therefrom qua the petitioner.
(RITU BAHRI) 20.08.2013 JUDGE ajp Prasher Ajay 2013.08.24 13:50 I attest to the accuracy and integrity of this document High Court Chandigarh