1. This criminal revision case has been preferred against the Judgment of the learned Sessions Judge, Guntur, in C.A. No. 115 of 1951 arising out of M.C. No. 8 of 1951 on the file of the Additional First Class Magistrate, Bapatla.
2. The facts are: In connection with the trapping of one Francis, Train Examiner, who was caught red-handed with a sum of Rs. 30 in marked currency notes by the Stationary Sub-Magistrate, Tenali, two persons, viz., K. Jalayya and B. Nageswara Rao, the respondents before us, gave statements under Section 164, Criminal P.C. before the learned Additional First Class Magistrate, Tenali. The substance of Jalayya's statement was that he witnessed payment of Rs. 30 by B. Nageswara Rao to Francis on demand at about 4 p.m. on 10-3-1950 at the office, of Francis and that Nageswara Rao promised to pay Rs. 12 to Francis in the next month. The substance of the statement given by B. Nageswara Rao was that he paid a bribe of Rs. 20 to Francis when he was first appointed and continued to pay Rs. 10 per month as bribe, and that on 10-3-1950 on demand he paid Francis Rs. 30 as bribe. The statements duly recorded under Section 164, Criminal P.C. have been properly proved.
In the subsequent case launched against Francis In C. C. No. 176 of 1950 in the Court of the Additional First Class Magistrate, Bapatla when Jalayya was examined as P. W. 2 he resiled from his statement under Section 164, Criminal P.C. and deposed that he had not witnessed the payment by Nageswara Rao to Francis and Nageswara Rao examined as P. W. 1 resiled from his statement under Section 164, Criminal P.C. and stated that he had never paid any bribe to Francis and that on 10-3-1950 he paid Rs. 30 to Francis in discharge of a loan which he had obtained earlier from Francis. In the result, this Francis has got acquitted. Thereupon complaint was filed under Section 193, Penal Code read with Section 195(1)(b), Criminal P.C. in the Court of the Additional First Class Magistrate, Bapatla. The case for these respondents was that the statements made by them were tutored and enforced statements and that the statements made by them in court were true statements. The learned Magistrate found that the accused persons had deliberately made two totally contradictory and irreconcilable statements and that the statements recorded from them under Section 164, Criminal P.C. were not seen to be tutored and enforced statements and that the later statements made in Court were made with a view to secure the acquittal of Francis and to help him, and that this brought about miscarriage of justice and that it is expedient in the interests of justice that such gross perjury should be put down.
3. The learned Sessions Judge, Guntur Mr. B.L.N. Rai, who has now retired, set aside the order of the lower Court sanctioning prosecution on the following grounds:
'The only question is whether it is expedient in the interests of justice that they should be prosecuted. They are illiterate and inexperienced petty labourers. They were completely under the influences of the Police at the time they made statements under Section 164, Criminal P.C. It cannot be said that at that time they were free agents. They were, however, in totally a different atmosphere of perfect safety and security in Court when they gave the evidence. It is difficult to determine which is the truth and which is the untruth. It cannot be said that what they stated under Section 164 was the truth and that what they stated in Court was false. Under the circumstances, it is neither just nor expedient nor necessary in the interests of public justice to prosecute the appellants.'
4. The learned Sessions Judge first would seem to think that statements recorded under Section 164, Criminal P.C. are unreliable statements to which no weight can be attached. This is an incorrect view. The object of recording statements under Section 164, Criminal P.C. are twofold. In this country where civic consciousness has not yet developed fully, tampering of witnesses is a, favourite pastime of accused persons and the resiling from the information truthfully given at the earliest stage occurs almost with monotonous regularity in cases where the accused are influential persons or persons inspiring terror. It is the only legal method by which the statements made by witnesses at an early stage In the investigation can afterwards be proved at the trial by the prosecution; it does no doubt, help to deter witnesses from changing their stories subsequently and to this extent its effect is salutary: -- 'Parmeshar Din v. Emperor', AIR 1941 Oudh 517 (A). In fact, getting a statement recorded under Section 164, Criminal P.C. is the only legal method of getting over the immunity from prosecution in regard to information given by witnesses under Section 162, Criminal P.C. and it is common sense that the information given Immediately after the date of the occurrence and as soon after the Incident as possible would be far more truthful and trustworthy than later denials or embellishments: -- 'Alla Baksh v. The Crown', 1952 Cri LJ 79 (B). That is why Courts have not shown any distrust of the statements recorded under Section 164, Criminal P.C.
In -- 'Parmanand v. Emperor' , it was pointed that Section 164, Criminal P.C. is used and intended for binding down the witness to his statement. It cannot, therefore, be rendered nugatory by the stock argument that if the statement of a witness is recorded under Section 164, Criminal P.C. the evidence of the witness should be discarded. If this were accepted as universally true there will be no scope for action under Section 164. If a statement of a witness is previously recorded under Section 164, it leads to an inference that there was a time when the police thought that the witness may change; but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon. Then in -- 'AIR 1941 Oudh 517 (A)' cited already, the scope of the statements recorded under Section 164, Criminal P.C. is fully expounded:
'No doubt, the fact the Police have considered it necessary for the statement of a witness to be recorded under Section 164 suggests that they do not consider him altogether a reliable witness; that is to say, they apprehend that he may be tampered with. But there is no objection to the procedure being followed in appropriate cases and it is difficult to see with what other object this provision was made in Section 164. Village witnesses are peculiarly susceptible to local influences. Where, as in the present case, all of the persons accused in the first information report disappeared from the village immediately after the occurrence, and it was therefore by no means Improbable that some attempt would be made by one or more of them to tamper with the witnesses while the accused were still at large, there can be no objection in those circumstances to the police sending the witnesses to have their statements recorded by the Magistrate under Section 164. The precaution is a very natural one. It is the only legal method by which the statements made by the witnesses at an early stage In the investigation can afterwards be proved at the trial by the prosecution, and then only for the purpose of corroboration. But it does no doubt help to deter witnesses from changing their stories subsequently and to this extent its effect is salutary.'
I need not point out that statements under Section 164 can only be used for the purpose of corroboration or contradiction and cannot be used as substantive evidence. This point is concluded by authority: -- 'Bhuboni. Sahu v. The King' 'Brij Bhushan Singh v. Emperor' and --'Mamand v. Emperor' .
5. That statements made under Section 164, Criminal P.C. can constitute the basis of a complaint under Section 476, Criminal P.C. when the deponents have resiled therefrom and given statements contradictory thereto, has been the settled law of this Court. In -- 'Maromma v. Emperor' : AIR1933Mad125 , Burn J. held that statements recorded by a Magistrate In the course of a police investigation under Section 164, Criminal P.C. are evidence in a stage of a judicial proceeding within Section 193, Expln. 2, Penal Code. 'Purusotham Thvar Amin v. Emperor', : AIR1921Bom3 CH) dissented from and -- 'Queen Empress v. Alagu Kone', 16 Mad 421 (I) and -- 'Suppa Tevan v. Emperor', 29 Mad 89 (J) were followed. In -- 'Ponnuswami Naidu in re', 1933 Mad WN Cr 141 (K), Jackson and Mockett JJ. held that the words 'in or in relation to a proceeding in that Court' in Section 476, Criminal P.C. are to be widely interpreted. These words would cover a case where the statement of a person under Section 164, Criminal P.C. before the Magistrate and his evidence as witness before the Court which subsequently tried the case are contradictory. The learned Judges followed --'Ganesh Mull v. Emperor', AIR 1931 Mad 778 (L) and -- 'Athi Ambalagaran v. Emperor', AIR 1932 Mad 494 (M).
In -- 'Krishnamachari v. Emperor', AIR 1933 Mad 767 (N), Sundaram Chetty and Pakenham Walsh JJ. tock a similar view. The facts of that case were: The petitioner was thrown out of a motor car on the night of 28-5-1932 and severely injured and died. On 29-5-1932, the Sub-Magistrate recorded a statement under Section 164, Criminal P.C. from the petitioner in which he stated that one R (P.W. 5) was the driver at the time of the accident. Police enquiry showed that one C was the driver and not R. C was tried and convicted and in the trial the petitioner supported the story that C was the driver. A complaint was laid under Section 476 for the false statement he made under Section 164. Held, though R (P.W. 5) was not an accused before the Court, it followed that if C was guilty, R (P.W. 5) was not and the implication of him by the petitioner in his statement under Section 164 was false and an inquiry into such a prima facie false statement was in the interest of public justice. In -- 'Papamma In re', AIR 1948 Mad 471 (O), Yahya All J. observed :
'Subsequently when statements under Section 164, Criminal P.C. were recorded the witnesses spoke to have witnessed the occurrence and gave details. It is alleged that that was on account of pressure or ill-treatment by the police. The District Magistrate has pointed out in his judgment that there is no evidence to show that they were in fact beaten or threatened. Apart from that circumstances the statements made under Section 164, Criminal P.C. and before the committing Magistrate are Irreconcilable. It is obvious therefore that the petitioners should have made one of those statements knowing that it was not true. The first factor, namely, whether an offence appears to have been committed by the petitioners is prima facie established. The second factor is about the expediency in the interests of justice. In a capital case where irreconcilable or totally contradictory statements are made by witnesses of the crime at different stages of time and the only explanation offered is that at one stage they were threatened by the prisoners and at another stage by the police, the witnesses in such a case should be proceeded against under Section 193, I.P.C. read with Section 476, Criminal P.C. and a complaint should be made in order to determine whether they are liable to be convicted of the offence of perjury. In this connection Section 236, Criminal P.C. and illustration (b) thereof are much in point. Both the criminal revision petitions are dismissed.'
6. In this connection, there seems to be a wrong impression that statements under Section 164, Criminal P.C. have got to be distrusted because these statements are not recorded by observing the same formalities as in recording the statements of accused persons under Section 164, Criminal P. C. There is a vital distinction between recording the statements of accused persons and the recording of statements of witnesses under Section 164, Criminal P.C. and this is well brought out in a Bench decision of this Court in --'Pullamma v. Emperor', 1932 Mad Cr. C. 67 (P). The learned Judges observed:
'The same precautions which are prescribed for recording the confession of accused persona need not be observed while recording the statements of witnesses and therefore it is not necessary to exclude the police from the Court. It is not suggested that Magistrates have not the power, if they think it necessary to ensure the voluntary character of the witnesses' statements and have any reasons to apprehend that the police are exercising an influence over the witnesses which they ought not to do, to exclude the police or in fact any others from the Court during the examination under Section 164. But it must be pointed out that they are not required to do so by law and that the practice is likely to lead to the statements of the witnesses being incomplete, as only the police who have investigated the case know the information which the witnesses are likely to give, and the Magistrates without their help will not be able to elicit all that the witnesses are able to speak to. In such case, it is difficult to discount the evidence of the witnesses in Court if their statements under Section 164 contain any omissions and are, therefore, not fully corroborative of the evidence in Court.'
7. So far as this High Court is concerned no special distrust of statements under Section 164, Criminal P.C. has ever been imported excepting the usual caution which has to be observed in accepting the evidence of witnesses examined under this section.
8. Therefore, when a person makes two contradictory statements, one recorded under Section 164, Criminal P.C. and another as a witness in court, a prima facie case is made out for launching a complaint for perjury. It is not necessary to investigate and find out whether the deposition recorded under Section 164, Criminal P.C. or the deposition given in court is false. Illustration (b) to Section 236, Criminal P.C. clearly lays down as follows:
'A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court. A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false.'
9. But though a prima facie case of perjury is made out, it does not mean that in every case of perjury we have to launch a complaint. In 'Devakkal v. Emperor', 1934 Mad WN 243 (Q), in an appeal against my order dated 4-9-1933 as Additional Sessions Judge, Coimbatore, Pandrang Row J. held:
'As observed by Venkatasubba Rao J. in - Cri. Ap. No. 590 Of 1931 (Mad) (R).......though every act of perjury is an offence, itdoes not follow that on that account everyperjurer should be charged.'
The learned Judge, made a distinction betweenDevakkal and Nachakkal. In the case of Devakkai he stated:
'There can be no doubt that this appellant resiled from what she stated to the Magistrate under Section 164 when she was examined in the Sessions Court and even denied having made such statements and that the only reason for such conduct was a corrupt one, viz., to defeat the administration of justice. The case was an important one being a case of murder and this appellant must have realised the consequence of her conduct. I therefore see no reason to interfere in appeal as I am of opinion that the learned Additional Sessions Judge was perfectly justified in directing the filing of a complaint against this appellant.'
10. In the case of Nachakkal who was a young woman of 15 years and who was cited as a prosecution witness in the case in which her own father was charged as one of the accused, the learned Judge held:
'In view of her tender age and the relationship between her and the accused against whom she was asked to give evidence, it appears tome that the perjury of which she has been guilty was not so serious as to require punishment by a criminal Court. It cannot be said that the interests of justice require that this young woman should be punished for perjury by a Court, simply because she refused or was unwilling to give evidence which would perhaps bring her father to the gallows.'
In other words, we have to consider whether it is expedient in the interests of justice to launch a prosecution, and in doing so we have to consider whether the nature of the perjury is such that it requires a prosecution as has been pointed out by Pandrang Row J. It will also be open to us to consider whether the circumstances of the cases are such that by prosecution we would be creating an encouragement in the belief that it would be better to go on telling a lie and stick to it. It is far better that a man would escape punishment for having made a false statement under Section 164, Criminal P.C. than he should be induced to believe that it is to his interest, however false the statements he has made, to adhere to it and thereby save himself from prosecution. This is the 'ratio decidendi' of -- 'Ningappa v. Emperor', AIR 1941 Bom 408 (8).
In other words, in considering whether it is expedient in the interests of Justice that a prosecution should be launched, it would be open to us also to consider the conditions under which the statement was recorded viz., the tutoring or enforcing which the deponent always alleges when he resiles from his statement and secondly, whether the statement under Section 164, Criminal P.C. would have been false. Two illustrations' will suffice. If the circumstances of the case show that a witness was sent to a Magistrate practically under custody and the contents of such statements are such as would show tutoring, then it would not be expedient in the interests of justice to launch a prosecution: --'Emperor v. Manu Chik', : AIR1938Pat290 (T) and -- 'Queen Empress v. Jadub Das', 27 Cal 295 (U). The latter would cover a case where the discussion of the evidence in the main case shows that the particulars given in the witness's statements under Section 164 must be absolutely false. Then it would not be expedient in the interests of justice to launch a prosecution and this appears to have been the case in -- 'AIR 1941 Bom 408 (S)' though the full facts are not before us.
11. Bearing these principles in mind in the instant case, it is found that prima facie perjury has been committed and it was committed in order to enable the bribe-taker to escape just punishment and there has been no tutoring or enforcing by the Police as found by the learned Additional First Class Magistrate and there is no other evidence in the case, C. C. No. 176 of 1960, which would show that the statements by these respondents under Section 164, Criminal P.C. were false and that the statements made by them during the trial of that case were true. This is a clear case therefore where there is 'prima facie' perjury fit for being investigated by a Court, but also, that it is expedient in the interests of Justice that such an investigation should be made.
12. The order of the learned Sessions Judge is set aside and the order of the Additional First Class Magistrate, Bapatla, is restored and the Additional First Class Magistrate, Bapatla, is directed to file complaints if it has not already been done, and the complaints are directed to be investigated and disposed of according to law.