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Banarsi Dass and ors. Vs. Mohan Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1986CriLJ1154
AppellantBanarsi Dass and ors.
RespondentMohan Lal and anr.
Excerpt:
.....that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offenceand 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. he had even expressed clearly his opinion that the said four prosecution witnesses had told blatant lies, which expression was wide enough to cover the wording of the section 'knowingly or wilfully given false evidence'.though mr. saini has not observed in so many words that he was satisfied that it was necessary and expedient in the interest of justice that..........those were raj rani p. w. 1, banarsi dass p.w. 2, sohan lal p.w. 3 and raj pal p.w. 4. the learned magistrate referring to them observed in his order of acquittal as follows:consequently, the only inference possible on the basis of these facts is that all the four of them had joined in cooking up a case against the accused relating to the said inducement or misrepresentation made to raj rani in the manner claimed by them and hence they told blatant lies by which they have made themselves liable for proceedings under sections 250 and 344 of cr. p.c. it seems that nothing was done to effectuate the observations of the learned magistrate for quite some time. the acquitted accused moved an application on 5-4-1983 before the successor magistrate then in office requiring him to proceed.....
Judgment:
ORDER

M.M. Punchhi, J.

1. This is a petition for revision against the order of Shri R P. Singh Mahal, Judicial Magistrate Ist Class, Jalandhar whereby he chose to proceed against the petitioners under Sections 250 and 344, Cr. P.C., as also under Section 193, Penal Code.

2. At the outset, an objection has been raised by the learned Counsel for the respondents that the order sought to he revised being interlocutory cannot be revised. As would be apparent from the discussion hereafter, neither is the order interlocutory nor is it such an order which would not require interference by this Court, be it under Section 401 or 482, Cr. P.C. The objection thus be taken to be overruled.

3. The undisputed facts are that on the basis of a first information report lodged by Banarsi Dass petitioner, three persons i.e. Mohan Lal, Ashok Kumar and Smt Kailash Wati were sent up to stand trial under Sections 406/417/420 and 175, Penal Code. Shri N. S. Saini, Judicial Magistrate Ist Class, Jalandhar vide order dated 27-3-1982 acquitted the accused. He adversely commented on the role of the four material witnesses who supported the prosecution. Those were Raj Rani P. W. 1, Banarsi Dass P.W. 2, Sohan Lal P.W. 3 and Raj Pal P.W. 4. The learned Magistrate referring to them observed in his order of acquittal as follows:

Consequently, the only inference possible on the basis of these facts is that all the four of them had joined in cooking up a case against the accused relating to the said inducement or misrepresentation made to Raj Rani in the manner claimed by them and hence they told blatant lies by which they have made themselves liable for proceedings under Sections 250 and 344 of Cr. P.C.

It seems that nothing was done to effectuate the observations of the learned Magistrate for quite some time. The acquitted accused moved an application on 5-4-1983 before the successor Magistrate then in office requiring him to proceed further in the matter. Notice was issued to the present petitioners who are two of the aforesaid witnesses being Banarsi Dass and his wife Raj Rani, and possibly against others too. The petitioners raised an objection before the learned Magistrate that he being successor to Shri N. S. Saini, who had made the observations afore-extracted, had no jurisdiction in the matter. The learned' Magistrate took the view that as the successor Court, he had a right to put into effect the order passed by his predecessor and had the jurisdiction in the matter. He further took the view that merely because there was some gap of time, that did not absolve the petitioners from being prosecuted for the of fence as they had made themselves liable to proceeding under Sections 250 and 344, Cr. P.C. He thus, vide the impugned order, required the appearance of the persons sought to be proceeded against and issued them a show cause notice for the purpose for the date fixed. This is the order which is the subject-matter of challenge in this petition.

4. At the start, Mr. Sibal, learned Counsel for the petitioners, abandoned the plea taken by the petitioners before the learned Magistrate. The attack now centres around that the proceedings against the petitioners on the admitted facts are nothing but an abuse of the process of the Court requiring interference of this Court at this stage. The precise objection is on the language of Section 344, Cr. P.C. which needs to be reproduced herein for facility of understanding as far as it is relevant :

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 appering 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 offenceand 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.

2. In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

(3) Nothing in this section shall affect the power of the Court to make a complaint under Section 340 for the offence, where it does not choose to proceed under this section.

(Emphasis supplied.)

It was urged by Mr. Sibal that this section requires the Court or the Magistrate, as the case may be, to take cognizance of the offence sought to be tried summarily and unless that manifestation is apparent on the face of the record, this section has no applicability. He otherwise frankly conceded that if Section 344 did not come into play in the present case, then the Court was not debarred from taking action under Section 340 of the said Code. Mr. Nanda, learned Counsel for the respondents, too has candidly conceded that in the instant case, no cognizance seems to have been taken by the Magistrate of the offence sought to be tried summarily. Both counsel, and in my view rightly, are one that no cognizance of the offence has taken place. The afore-extracted part of the judgment of Shri Saini goes to show that he was at the preparatory stage mainly concerned in the disposal of the case and not taking cognizance under Section 344, Cr. P.C. He had even expressed clearly his opinion that the said four prosecution witnesses had told blatant lies, which expression was wide enough to cover the wording of the section 'knowingly or wilfully given false evidence'. Though Mr. Saini has not observed in so many words that he was satisfied that it was necessary and expedient in the interest of justice that those four witnesses be tried summarily for giving false evidence yet it seems that by expressing that they had made themselves liable for proceedings under Section 344, Cr. P.C., he had opined accordingly. But that apart, the language employed by Shri Saini can by no means convey that he had taken cognizance of the offence. He never manifested in the said judgment that he was proceeding to try the offenders for an offence under Section 193, Penal Code. He could have on that very day, shortly after the judgment, initiated a separate file to signify thereon that he had taken steps indicative of his having taken cognizance of the offence. The word 'cognizance' has by now assumed a well defined legal meaning which is to the effect that it occurs as soon as a competent Court applies its mind to the offence with the intention of initiating judicial proceedings against the offenders in respect of the offence. Here no such step was taken, except making the observations aforequoted in the judgment, which were preparatory in nature. From that alone it cannot be said that the learned Magistrate had taken cognizance., Thus, on this ground alone, the steps taken by the successor Magistrate to have the accused summoned before him under Section 344, Cr. P.C., read with Section 193, Penal Code, cannot be allowed to sustain. Accordingly, that part of the proceeding is ordered to be dropped. On the alternative suggested by Mr. Nanda, the application made by the respondents obviously can be treated to be one under Section 340 Cr. P.C. There is absolutely no bar to such a step. The Magistrate may regulate his proceedings thenceforth as a preliminary inquiry, as conceived under Section 340 Cr. P.C and continue with the proceedings in accordance with law.

5. So far as the proceedings under Section 250 Cr. P.C are concerned, Mr. Sibal, learned Counsel for the petitioners, could not advance any argument. That section empowers a Magistrate to award compensation to the accused for accusation made by the complainant without reasonable cause. An appropriate procedure has been prescribed therein, for the complainant is to be issued summons to appear and show cause as to why he should not pay compensation to the accused or to each or any of such accused where there are more than one. The outer limits of the power of the Magistrate as regards compensation is regulated by the offence for which the accused was tried and the fiscal jurisdiction of the Magistrate which, in the instant case, he being a Judicial Magistrate Ist Class, Jalandhar, extends to Rs. 5,000/- as that is the amount of fine he is empowered to impose. These proceedings, as conceded by Mr. Sibal, can go on and cannot be allowed to be quashed.

6. Thus, the aforesaid two separate strains of thought and expression have now to entwine inasmuch as the application before the learned Magistrate shall continue rightly being treated to be one for invoking proceedings under S-250, Cr. P.C., ant at the same time as proceedings under Section 340, Cr. KG; No steps towards summary trial under Section 344 Cr. P.C., be now undertaken.

7. With these observations, this petition stands partially allowed to the extent afore indicated. Parties through their counsel are directed to put in appearance before the learned Magistrate on 24-9-1985.


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