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Karan Singh Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Petition No. 173 of 1984
Judge
Reported in1985(2)WLN381
AppellantKaran Singh
RespondentState of Rajasthan
DispositionPetition allowed
Excerpt:
.....penal code--section 218--magistrate directing to file complaint under section 218 for fabricating false evidence--trial in main case did not begin--held, magistrate is competent issue suit direction but it would thwart ends of justice.; i am of the view that though the learned magistrate was legally competent to direct complaint being field for the offence under section 218 ipc the impugned order directing the said complaint to be filed at this stage, when the trial of the main case is still to begin would not advance and rather thwart the ends of justice.;petition allowed. - - however, it failed to achieve the desired effect. ..6. a comparison of section 344 with the old section 479a would bring the focus the positive improvements brought about by the present section to curb..........learned magistrate directed issuance of a notice to the petitioner why proceedings for fabricating false evidence be not initiated against him. on february 10, 1984 the notice was issued to the petitioner and a reply to the same was submitted by him on february 25, 1984. the learned magistrate, by his order dated the 28th february, 1984, directed that a complaint for the offence under section 218 ipc may be filed against the petitioner in a court of competent jurisdiction. it is against this order that the present petition has been filed by the petitioner in this court.3. i have heard mr. n.n. mathur for the petitioner and the learned public prosecutor for the state. mr. mathur has urged that the order of the learned magistrate directing complaint to be filed against the petitioner for.....
Judgment:

Sobhag Mal Jain, J.

1. This is a petition Section 482 Cr.P.C. against the order dated the 28th February,1984, of the Judicial Magistrate, Ist Class, Banswara directing a complaint to be filed against the petitioner in a court of comptent jurisdiction for the offence under Section 218 I.P.C. The events that led to9 be present order being passed by the learned Magistrate may brifly be stated thus: On August 11, 1983 one Phool Chand resident of Lohariya, Tehsil Gadhi,District Banswara, filed a complaint in the court of Judicial Magistrate Banswara, against Laxmilal, Smt. Pushpa, Mukesh and Kuria under Section 147, 454, 427 & 380 IPC for committing house breaking, damage by mischief theft and other offences at the complaint's house. The Judicial Magistrate by his order dated the 12th August, 1983, forwarded the complaint to the Station House Officer, Lohariya, for investigation under Section 156(3) Cr.R.P. and the was registered as FIR case No. 91/1983 at the said Police Station. On the application of the complainant, the Superintendent of Police,Banswara by his order dated the 26th August, 1983 entrusted the investgation of the case to Karan Singh, the petitioner herein, who was then the Station House Officer Police Station Gadhi. On August 29, 1983, the petitioner during the course of investigation recorded the statement of Phool Chand, Laxmi Chand Sukhlal, Rukmichand, Sudhir, Lalsingh, Premchand and Mogi, and in these statements the witnesses supported the complainant's story. On September 7, 1983 the petitioner, by holding that the offences under Section 457, 511 and 427 IPC were made out against the accused persons sought the opinion of the Assistant Public Prosecutor. The Assistant Public prosecutor, however wanted further information. Thereafter, the petitioner, on September 19, 1983 added at the end of the statements of four witnesses, namely, Sukhlal, Sudhir, Premchand and Mogji a note to the following effect:

ethi ekywekr ij xokg us crk;k fd ;g bl c;ku dh rkbZn ugh djrk gS A

Ultimately the petitioner, on January 25, 1984 submitted a Final Report to the Judicial Magistrate, Banswara, that no case was made out against the accused. In this report the petitioner also mentioned.

Qjh;knh dks urhts dh lwpuk tfj;s lwpuk cksMZ ch tkdj lwpuk dkMZ layXu i=koyh gSA

2. The learned Magistrate by his order dated the 25th Jauary, 1984 by rejecting the final report, took cognizance of the offence against Laxmilal, Mukesh, Smt. Pushpa and Kuria for the offence Under Section 454, 380 & 427 IPC. The learned Magistrate further held that the petitioner had appended the note to the statements of the witnesses with the object of helping and obliging the accused. The learned Magistrate also held that the petitioner had wrongly mentioned in the report that the complainant had been informed of the result, though in fact no such information was conveyed to the complainant. In this view of the matter the learned Magistrate directed issuance of a notice to the petitioner why proceedings for fabricating false evidence be not initiated against him. On February 10, 1984 the notice was issued to the petitioner and a reply to the same was submitted by him on February 25, 1984. The learned Magistrate, by his order dated the 28th February, 1984, directed that a complaint for the offence under Section 218 IPC may be filed against the petitioner in a court of competent jurisdiction. It is against this order that the present petition has been filed by the petitioner in this Court.

3. I have heard Mr. N.N. Mathur for the petitioner and the learned Public Prosecutor for the State. Mr. Mathur has urged that the order of the learned Magistrate directing complaint to be filed against the petitioner for the offence under Section 218 IPC was legally incompetent as this offence is not mentioned in Section 195 of the Code of Criminal Procedure and therefore the provisions of Section 340 Cr.P.C. were not applicable and further the provisions of Section 344 Cr.P.C. also could not be invoked as the stage for taking cognizance under that Section had not reached as yet.

4. True the offence under Section 218 is not included in the offences referred to in clause (b) of Sub-section (1) of Section 195 and therefore, the complaint for the said offence would not be covered by the provisions of Section 340 Cr.P.C. The counsel is also right in submitting that the stage for taking cognizance under Section 344 had not reached as cognizance under this Section could be taken only at the time of the delivery of a judgment or final order disposing of the judicial-proceeding. The matter, however, does not end here and the question for consideration still is whether a complaint in respect of offences not covered by Section 340 Cr.P.C could be filed or not. My answer to this question is in the affirmative. Section 340 Cr.P.C. is not exhaustive. It embraces only those offences referred to in Section 195(1)(b) in respect of which a complaint of the court is necessary. Section 340 does not prohibit complaint being filed in respect of an offence which is not mentioned in Section 195(1)(b) Cr.P.C. The offence under Section 218 IPC is not one referred to in Section 195, with the result the provisions of Section 340 will not be attracted and there was, therefore, no bar to the filing of a complaint in respect of an offence under Section 218 IPC.

5. Now coming to the argument concerning Section 344 Cr.P.C. it would be seen, that this Section makes a complete departure from its corresponding 479A of the old Code of 1898. Section, 479A was inserted in the old Code by the Amending Act of 1955 with the object of eradicating the evil of perjury. However, it failed to achieve the desired effect. In its 41st Report, the Law Commission said:

Ever since its introduction the Section has been a source of trouble

x x x x x x x xIf speedy punishment for perjury is the aim, then the Section does not go far enough...

6. A comparison of Section 344 with the old Section 479A would bring the focus the positive improvements brought about by the present Section to curb effectively the evil of perjury. Section 479A of the old Code and Section 344 (New) are set out below:

479 A. Procedure in certain cases of false evidence: (1)--Not with standing any thing contained in Sections 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him at the time of the delivery of the judgment or final order disposing of such proceedings, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, af er giving the witness an opportunity of being heard, make a complaint there of in writing signed by the presiding officer of the court setting forth the evidence which, in the opinion of the court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction and may, if the accused is present before the court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and given evidence before such Magistrate:

Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the court as the Court may appoint;

Explanation: For the purpose of this Sub-section, a Persidency Magistrate shall be deemed to be a Magistrate of the first class;

(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200;

(3) No appeal shall lie from any finding recorded and complaint made under Sub-section (1);

(4) Where, in any case, a complaint has been made under Sub-section (1) and appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen, the hearing of the case before the Magistrate to whom the complaint was forwarded or to whom the case, may have been transferred shall be adjourned until such appeal is dicided; and appellate court, after giving the person against whom the complaint has been made an opportunity of being heard, may, if it so thinks fit, make an order directing the withdrawal of the complaint; and a copy of much order shall be sent to the Magistrate before whom the hearing of the case is pending;

(5) In any case, where an appeal has been preferred from any decision of a civil, revenue of criminal court but no complaint has been made under Sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said Sub-section may be exercised by the appellate Court; and where the Appellate Court makes such complaint, the provisions of Sub-section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard;

(6) No proceedings shall be taken under Sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this Section.

Section 344(New) Summary procedure for trial giving false evidence (1)--If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Sessions or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding has knowingly or wilfully given false evidence or has fabricated false evidence, with the intention that such evidence should be used in such proceedings; 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

(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;

(4) Where, after any action is initiated under Sub-section (1), it is made to appear to the Court of Sessions or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that Sub-section has been expressed it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.

One feature which is common to both is that the power given by the two Sections has to be exercised at the time of delivery of the judgment or final order disposing of a judicial proceeding. Under old Section 479A the Court was not given the power to punish the offender itself and was required to file a complaint to a Magistrate of first class having jurisdiction. Now under Section 344 the Court of Sessions or Magistrate first class has been empowered to take cognizance itself and try the offender summarily. The scope of the provision has however been confined to obvious cases of perjury. It authorises the court to pass a small sentence which may extend to three months and fine. Under the old Section the sentence to be imposed was governed by the provision of the Indian Penal Code. Under the old Section proceedings under Section 476 to 479 were totally excluded if action under Section 479A could be taken. By Sub-section (3) of Section 344 it has now been made clear that nothing in this Section affect the court to make a power of the complaint under Section 340 where it does not choose to proceed under Section 344.

7. In view of this Section 344 has to be construed on its own terms and contents. It has a very limited operation and applies only to the case of giving or fabricating false evidence by a witness in the proceedings. The offences winch do not fall in this category are outside the purview of this Section. Further, Section 344 is an enabling provision. It is supplemental to and not in derogation or substitution of the provisions contained in the Indian Penal Code or the Criminal Procedure Code. The object of the Section is to facilitate expeditious trial of offence of giving or fabricating false evidence which comes to the notice of the court at the time of delivery of any judgment or final order. If the contention of the counsel for the petitioner that Section 344 Cr.P.C. is exhaustive and no action except under the provisions of this Section can be initiated in cases covered by this Section including the offence under Section 218 IPC is accepted, it would lead to consequences not intended by the legislature, as example gratia, the offence under Section 218 IPC. If it is tried by a ordinary court of competent jurisdiction the normal procedure prescribed by the Code would have to be followed and the offence would be punishable with imprisonment which may extend to three years or with fine or with both. If this offence is left to be tried only under the provisions of Section 344 Cr.P.C. the maximum sentence would be three months only. Such a result is not intended by the provisions of Section 344. To me, the scheme of Section 344 appears to be that it provides an additional mode of trying and punishing offenders for giving or fabricating false evidence. The provision is discretionary and where the court considers that it is likely to raise complicated questions or the act otherwise deserves more serious punishment or where action is considered expedient even before the trial reaches the stage of judgment or final order it is open to the court to direct initiation of proceedings under the ordinary provisions contained in the Code. Of course, if all the conditions of Section 344 Cr.P.C. are satisfied and the court considers it expedient in the interest of justice to take cognizance and try the case itself, it can do so but such a course can be adopted when the main case reaches the stage of judgment or final order.

8. In the instant case the Magistrate has not himself taken cognizance of the offence under Section 218 IPC and the question of violating the provisions of Section 344 Cr.P.C. does not arise. The Magistrate was legally competent to direct complaint being filed and the said order does not suffer from any error of jurisdiction or from legal competence.

9. However, as to the expediency for filing the complaint at this stage, I am with the counsel for the petitioner that it is too early to hold even prima facie, that the petitioner has committed the offence under Section 218 IPC. The picture would be clear when at least the four witnesses, namely, Sukhlal, Sudhir, Premchand and Nogji are examined in the court. A simultaneous trial of the two cases--(1) Criminal case No. 179/84 against Laxmilal, Mukesh, Smt. Pushpa and Kuria for the offences under, Sections 454, 380 and 427 IPC (which is being tried by the learned Judicial Magistrate, 1st Class, Banswara), and (2) the case now directed to be filed on complaint by the impugned order against Karan Singh petitioner (which has to be tried by some other Magistrate) may not be practical or feasible as the police record required in both the cases is common and it would not help the smooth progress of the trial of the main case. There is also the possibility of conflicting judgments coming into being and this has to be avoided. The trial of Criminal case No. 179/84, which is the principal case cannot obviously be postponed. Rather, the court would be better equipped at the conclusion of the trial of Criminal case No. 179 of 1984 to decide whether a prima facie case exists to justify a complaint being filed against the petitioner for the offence of framing incorrect record punishable under Section 218 IPC. In these circumstances, I am of the view that though the learned Magistrate was legally competent to direct complaint being filed for the offence under Section 218 IPC the impugned order directing the said complaint to, be filed at this stage, when the trial of the main case is still to begin would not advance and rather thwart the ends of justice.

10. The result is, I allow the petition and set aside the order of the Judicial Magistrate, Banswara, dated the 28th February, 1984, directing a complaint to be filed against the petitioner under Section 218 IPC. I may, however, make it clear that it would be open to the Magistrate to decide the question whether a complaint for the offence under Section 218 IPC against the petitioner should be filed or not, at the conclusion of the trial of Criminal case No. 179 of 1984 pending in his court.


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