Uttarakhand High Court
Nandan Singh Mehra vs State Of Uttarakhand on 18 October, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No.71 of 2018
Nandan Singh Mehra .....Applicant
Vs.
State of Uttarakhand .....Respondents
Present:- Mr. Sandeep Kothari, Advocate for the applicant.
Mr. Pratiroop Pandey, A.G.A., for the State of Uttarakhand.
Hon'ble Sharad Kumar Sharma, J (Oral)
The applicant to the present C482 Application, has put a challenge to the summoning order dated 13.12.2017, as it has been passed by the court of learned Judge, POCSO, Haldwani, District Nainital in Misc. Criminal Case No.08 of 2017, "State Vs. Nandan Singh", whereby under section 192 of IPC, to be read with section 193 of the IPC, and under section 22 (1) of POCSO Act, the applicant has been summoned for the purposes of conducting a summary trial of the proceedings contemplated to be held under section 344 of the CrPC.
2. The learned counsel for the applicant has argued, that if the judgment rendered in the Special Sessions Trial No.04 of 2017, "State Vs. Arif", in relation to trying the respondent (in said case) for the offences under sections 363, 366, 376, 504 and 506 of IPC, and section ¾ of the POCSO Act, is taken into consideration, in fact the observations, which has been made for the purposes of attracting section 344 of the CrPC, is not specifically made out in the light 2 of the observations which had been made in paragraph no.33, of the judgment, which was rendered by the Sessions Court.
3. He submits that for the purposes of drawing the summary trial; for the purposes at achieve the object of section 344 of CrPC, there has had to be a prior, drawing of an opinion, necessitating the summoning of a person for holding of the proceedings under section 192 and 193 of the IPC, to be read with Section 344 of the CrPC, and in support of his contentions, learned counsel for the applicant refers to sub-section (1) of section 344 of CrPC, wherein, he submits that if the Sessions Court or any Magistrate at the stage of drawing of the judgment at that stage itself expresses an opinion to the effect that any witness who was appearing in the said proceeding has knowingly or willfully give a false evidence or a fabricated evidence, the Court should satisfy with reasons that it is necessary an expedient in the interest of justice; that the witness who has led false evidence should be tried summarily for giving a false or a fabricated opinion. It is this part of the provisions as it is contained under section 344 of CrPC, which has been impressed upon by the learned counsel for the applicant.
4. It is contended by the learned counsel that its this condition which doesn't stand satisfied in paragraph no.33, of the judgment of the Sessions Court, whereby the proceedings under section 344 of the CrPC could be made permissible, as it has been sought to be drawn, as against the present applicant.
3Sub-section (1) of Section 344 of CrPC, is extracted hereunder:-
"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."
5. This Court is of the view, that if the provisions of sub-section (1) of section 344 of CrPC, is taken into consideration in its entirety, the recording of the satisfaction or the reasons by the Court for taking the cognizance for initiation of the summary trial under section 344 of CrPC, it is exclusively the prerogative of the Court, which would be depending upon the circumstances of each and every case, which has to express, an intention that the evidence adduced by the witness was fabricated or was false, which was required to be taken cognizance of by the Court by holding a summary proceedings under section 344 of CrPC.
46. He submits that it is this aspect of Section 344 CrPC, pertaining to the absence of satisfaction to be recorded by the Court, while delivering the judgment, which is lacking in the instant case, which could be necessitating the issuance of the summoning order to the present applicant for facing the summary trial under section 344 of CrPC.
7. This argument extended by the learned counsel for the applicant is being argued to the contrary by the learned Government Advocate, while drawing the attention of this Court to the part of judgment, he submits that if the findings, which has been recorded in paragraph no.33, of the judgment dated 27.07.2017, by the court of Additional District & Sessions Judge, is taken into consideration, and particularly, the part on which the reference has been made by the Government Advocate, which is extracted hereunder:-
" यिद घटना के िदनांक को पीिड़ता अिभयु� के साथ घूम िफर कर वापस आ गई थी, िज�� िहन्दूवादी संगठन के लोगों ने पकड़ िलया होता तो घटना की �रपोट� एक िदन प�ात अथा�त िदनांक 04.11.16 को दज� कराये जाने म� देरी न होती �रपोट� देरी से दज� कराने का भी कोई ��ीकरण दादी के बयान म� नहीं आया है। इस प्रकार अिभयोजन सा� से यह बात �� �ई है िक पीिड़ता के िपता �ारा जानबूझ कर या तो �ायालय के सम� झूठा सा� िदया गया है अथवा अिभयु�ः को झूठा अिभयोिजत करने हेतु प्रथम सूचना �रपोट� झूठी गढी गयी है। इस मामले म� पीिडता की उम्र 18 वष� से कम आई है। इसिलये पो�ो अिधिनयम की धारा 22 (2) के तहत काय�वाही उसके िव�� तो नहीं की जा सकती लेिकन पो�ो अिधिनयम की धारा 22(1) वादी के उ� कृ� को प्रितबंिधत करती है।"
8. He submits, that the observations which had been made in the aforesaid extract of paragraph no.33, that satisfies the ingredients of sub-section (1) 5 of section 344 of CrPC, and it would be treated as to be a satisfaction in the context of provision of Section 344 CrPC, which is recorded by the Court, which would be facilitating to be interpreted, to justify taking of the cognizance for holding of the summary trial, in the proceeding to be held under section 344 (1) of CrPC, as against the present applicant, and the logic, which has been extracted to be drawn by the learned Government Advocate, is in the context of, particularly, the last four concluding lines of the paragraph No.33, which has already been extracted hereinabove, where the Court has observed that the prosecution witness had given a false evidence in order to establish the wrong age of the victim for the purposes of trying the accused persons for the offences, before the court of Special Judge, POCSO/FTC/Additional District Judge, Haldwani, District Nainital.
9. It is contended by the learned Government Advocate, that this observations made in the judgment in itself in paragraph no.33, would satisfy the reasons of the court, as contemplated and intended too under sub-section (1) of Section 344 of CrPC, and would be treated as to be a satisfaction, which has been recorded by the court, which was necessitating the conduct of the proceedings of the summary trial under sub-section (1) of Section 344 of CrPC, by recording the evidence to the effect that a false evidence has been adduced for the purposes of determining the age of the victim, which was an aspect very vital to the adjudication of the issue.
610. This Court finds that the reason which has been given in paragraph no.33, itself satisfies the conditions under sub-section (1) of Section 344 of CrPC, and would be treated as to be a satisfaction which has been recorded by the court necessitating the initiation of the proceedings under sub-section (1) of Section 344 of CrPC.
11. The distinction which has been attempted to be carved out by the learned counsel for the applicant, that this vital element was lacking in paragraph no.33, which is the basis of initiation of the proceedings under section 344 of Cr.P.C, this argument is not acceptable by this Court for the reason being that the Court concerned while considering the respective evidence and particularly while drawing its inference has specifically observed, that in view of the evidence led by the parties in relation to the incident, which was reported to have chanced on 04.11.2016, in fact the prosecution has led a false evidence, to justify the determination of the actual age of the victim in the proceedings which was held before the learned Special Judge, POCSO/FTC/ADJ Haldwani, District Nainital.
12. Apart from it, the fine distinction, which has been attempted to be drawn by the learned counsel for the applicant, is still a premature aspect to be considered only for the purposes to assail an action which was yet to be initiated by issuance of the show cause notice by taking cognizance for the purposes of initiation of the summary trial under sub-section (1) of section 344 of CrPC.
713. This Court is of the view that the logic, which has been assigned by the court for the purposes of taking of an action under section 192 of IPC, by drawing its reason from paragraph no.33, of the judgment dated 27.07.2017, justifies the "reason of satisfaction", as contemplated under sub-section (1) of Section 344 of CrPC, which was allegedly otherwise required to be recorded by the court before taking cognizance for initiation of the proceedings under section 192 and 193 of IPC.
14. Even otherwise and also as it has been argued by the learned counsel for the State, that apart from the logic as recorded in paragraph no.33, of the judgment, the subsequent issuance of the show cause notice on 31.08.2017, where the applicant has been called up he would still have a sufficient opportunity to lead his case qua the set of allegations leveled against him pertaining to section 192 and 193 of IPC, at present stage assailing the order of the cognizance, particularly, for the logic which has been assigned by the court for the purposes of holding of the summary trial under sub- section (1) of section 344 of CrPC, on account of an infringement of the procedural law, as contemplated under section 192 and 193 of the IPC.
15. This Court is of the view that no prejudice is caused at this stage as he would still have sufficient opportunity to defend himself, when he puts an appearance before the court of Special 8 Session Judge, POCSO/3rd FTC, Nainital, in Misc. Criminal Case No.08 of 2017. Hence, at this stage, there is no apparent infringement of any judicial right which stands created in favour of the applicant, all his contentions and defence, would still be open to be raised by him, about the set of allegations pertaining to leading of the false evidence, before the Special Judge, POCSO, at the stage, when the applicant responds to the summoning order dated 31.08.2017.
16. For the reasons aforesaid, the classification which has been sought to be drawn by the learned counsel for the applicant, qua the implications of sub-section (1) of section 344 of the CrPC, for drawing the proceedings under section 192 and 193 of IPC, is not acceptable by this Court at this stage in the absence of element of prejudice, because apparently the observations which had been made in paragraph no.33, justifying the summoning for holding the summary proceedings under section 344 of CrPC, is carrying a sufficient material and satisfaction which had been recorded by the Sessions Court for trying the present applicant under section 192 and 193 of the IPC.
17. Hence, at present, no prejudice is caused and all his defence, are still left open when he responds to the summoning order dated 31.08.2017, as rendered in Misc. Criminal Case No.08 of 2017, "State Vs. Nandan Singh Mehra". I think that this is not a fit case in which the High Court should venture upon to exercise its inherent powers under section 482 of the CrPC, for scrutinizing the order of 9 summoning of the witness for leading a false evidence in the prosecution case.
18. Hence, C482 application lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 18.10.2022 NR/