S.B. Capoor, J.
1. This is an application on, behalf of the State for the grant of sanction under subsection (3) of Section 339 of the Code of Criminal Procedure for the prosecution of Dial Singh respondent for the offence of giving false evidence.
2. A woman named Tej Kaur was said to nave been murdered in village Satgoli to whichthe respondent belongs. She had gone out to the fields sometime in January 1954 but did not return and after several days her father Sher Singh lodged a report of abduction at the police station on 7-2-1954. It was not until some three months later that a woman's dead body was found floating in a well and her parents claimed that it was the dead body of Tej Kaur.
Subsequently one Hazara Singh was suspected of having a hand in the murder; and Dial Singh, respondent, was made an approver and gave his statement under Section 164 of the Code of Criminal Procedure before Shri O.G. Adya Magistrate, Karnal, on 26-5-1954. Hazara Singh was placed on trial for the murder of Tej Kaur. When Dial Singh, respondent, was examined asa prosecution witness at the Sessions Trial on 15-2-1955, he denied all knowledge of the allegedmurder.
The trial resulted in the acquittal of Hazara Singh and the learned Sessions Judge also discharged the approver. On 21-2-1956, the Public Prosecutor, Karnal, gave a certificate to the effect that either the statement made by the respondent on 26-5-1954, or that made by him on 15-2-1955, was false and that he had thus not complied with the condition on which the tenderof pardon was made. On the basis of this certificate the State has moved this Court to accord its sanction for prosecuting the respondent for the offence of giving false evidence.
3. There can be no manner of doubt that the two statements in question are so contradictory that one of them must be false, but the prosecution of the approver for the offence of giving false evidence in such cases is not to follow as a matter of course, and that is why the legislature has provided that the sanction of the High Court must be obtained before such a prosecution can be entertained.
The considerations, which would weigh with the Court in granting such sanction, have been indicated in a number of cases. In Emperor v. Waryam Singh, AIR 1924 Lah 90 (A), at page 91 it was held that a witness, who is in any way induced to make a false statement in connection with a capital charge, should be allowed every possible locus penitentiae but where contradictory statements have been made on different occasions sanction cannot be refused unless there be something to show that the approver made the statement alleged to be false under undue influence.
These observations were reiterated in Emperor v. Hussaina, AIR 1933 Lah 868 (B). In another case Emperor v. Prabhu, AIR 1937 Lah 551 (C), it was held by Din Mohammad J., that the High Court is not bound, to accord sanction in every case that is brought to its notice under Section 339 (3) of the Code of Criminal Procedure.
The discretion vested in the High Court under this provision must be exercised with extreme caution and if the circumstances point to the conclusion that the incriminating statement made by the approver was not true, it would be opposed to public policy to prosecute and punish the approver for perjury. With this view, I am in respectful agreement. Ordinarily, it should be exceedingly difficult for an approver to give positive evidence as to his having made the incriminating statement under undue influence or as a result of coercion by the police.
It sometimes happen that, when an Investigating Officer is confronted with a weak case, he in his misplaced zeal attempts to bolster it by getting hold of an approver; and if there is any such indication in the circumstances of a particular case, sanction ought not to be given under Sub-section (3) of Section 339 of the Code of Criminal Procedure for the prosecution of the approver.
A Division Bench of the Bombay High Court has held in Ningappa v. Emperor, AIR 1941 Bom 408 (D), that where a person has resiled in the Sessions Trial from his statement under Section 164 of the Code of Criminal Procedure, it is absolutely essential that the Court should make up its mind whether it was the statement before the Magistrate under Section 164 or the statement subsequently made in Court which was false.
If the statement in Court was false, then, in the interests of justice, there should be a prosecution; but supposing it was the statement under Section 164 which was false a prosecution would not be expedient in the interests of justice. It was further observed that no doubt a man making a statement on oath before a Magistrate under Section 164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently he goes into the witness-box.
To prosecute a man who has resiled from a false statement made under Section 164 is to encourage him in the belief that it pays to tell a lie and stick to it. These observations lay down a necessary precaution which has to be observed in such cases.
4. In the present case, there is no Indication in the petition by the State as to which of the respondent's two statements referred to in the petition is taken to be false. The dead body of the woman alleged to have been murdered was found some three months after her disappearance and the doctor, who conducted the post-mortem, was unable to state the cause of death.
Hazara Singh was supposed to have committed the murder, because he had a love affair with Tej Kaur while she was still unmarried but was then married to some other man. Te] Kaur's death could as well have been the result of suicide. There was hardly any circumstantial evidence to connect the approver with tne crime. The evidence led before the Sessions Judge was meagre and that also was disbelieved by him.
In these circumstances, even though the respondent could not substantiate his allegation that it was as a result of the police torture that he gave his statement under Section 164 of the Code of Criminal Procedure, the circumstances do indicate that the approver was brought in to support a weak case, and, in any event, there is nothing at all to show that it was his statement at the Sessions Trial which was false and not the earlier one under Section 164 of the Code of Criminal Procedure.
5. Accordingly, I am of the view that this is not a case in which sanction should be granted under Sub-section (3) of Section 339 of the Code of Criminal Procedure for the Prosecution of Dial Singh respondent, and I dismiss the petition.