Criminal Appeal No.596 of 2014

18th July, 2014

Petitioner Counsel: Mr. A.A. KUMBHAKONI, Sr. Counsel with V. V. PURWANT
Respondent Counsel: Mr. S.K. SHINDE, PP with Mrs. M. H. MHATRE

Cases Cited:
Pritish Vs. State of Maharashtra & Ors., 2002 ALL MR (Cri) 732 (S.C.)=(2002) 1 SCC 253 [Para 5,9]

JUDGMENT

V. M. KANADE, J. :- Heard Mr. Kumbhkoni, learned Senior Counsel appearing on behalf of the Applicant. It is submitted that the Applicant has filed the criminal application challenging the findings / observations made by the learned trial Court against him, and prayed to quash, expunge the said findings. It is submitted that Section 341confers power of filing an appeal against the order of initiation of proceedings for the offence of fabrication of evidence and giving false evidence, which is made punishable under Section 193 I.P.C. It is submitted that, therefore, liberty may be granted to the Applicant to convert the criminal application into criminal appeal. It is submitted that since the impugned order is passed by the Sessions Court, Pune; it being a Court subordinate to the High Court, Bombay, appeal will lie to this Court.

2. We, therefore, permit the applicant to convert the criminal application into criminal appeal. Amendment to be carried out during the course of the day.

3. Heard. Admit. By consent of parties, appeal is taken up for final hearing and disposal.

4. Brief facts, which are necessary for the purpose of deciding the appeal, are as under:

The State has filed the charge-sheet against the original accused for the offence punishable under Section 302 and other offences of the I.P.C. The Sessions Court convicted the accused and sentenced and awarded him the death penalty. The Sessions Court, however, in the said judgment and order observed that the present Appellant, who had been examined as defence witness, had given false evidence and had fabricated the documents. The Sessions Court thereafter issued a show-cause notice to the Appellant, as envisaged under Section 340 of the Criminal Procedure Code, and thereafter by the impugned order was pleased to reject the explanation given by the Appellant, and thereafter a complaint was filed and process has been issued in the said complaint. Being aggrieved by the order passed in the show-cause notice, the present appeal has been filed, as envisaged under Section 341 Cr. P. C.

5. Mr. Kumbhkoni, learned Senior Counsel appearing for the Appellant has invited our attention to the impugned order, and more particularly, the observations made in paragraph 3 thereof. It is submitted that taking into consideration the wordings used in Section 340 Cr. P.C., the Court is expected to record a finding that it is expedient and in the interest of justice that offence should be probed into. It is submitted that the Sessions Court has merely observed that in view of the finding recorded in the judgment on the basis of evidence given by the Appellant, there was no question of dropping the said notice. It is submitted that the Sessions Court was under obligation to record the finding as to why he felt that a further probe was required and from that angle, a finding had to be recorded, which was not done. In support of this contention, learned Senior Counsel has placed the reliance on a judgment, in the case of - Pritish, Appellant Vs. State of Maharashtra & Ors., Respondents [(2002) 1 Supreme Court Cases, 253] : [2002 ALL MR (Cri) 732 (S.C.)].

6. On the other hand, learned Government Pleader has submitted that now complaint has been filed and process has been issued. He has further submitted that the Sessions Court had given a detailed finding in its judgment and order, in which capital punishment was awarded to the Accused, and therefore, it was not strictly necessary to record a separate finding.

7. In our view, there is some substance in the submissions made by the learned Senior Counsel appearing on behalf of the Appellant. If an offence punishable under Section 193 I.P.C., is committed during the course of the inquiry or trial before the Court, then under Section 195 (b) (i) Cr. P.C., a complaint can be filed against such a person and he can be prosecuted for giving false evidence or fabrication of documents. The procedure which is required to be followed by the Court is under Section 340 Cr. P. C. Section 340(1) Cr. P. C. reads as under:

"340. Procedure in cases mentioned in section 195

(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate."

8. Upon a minute perusal of the said provision, it is abundantly clear that the legislature in its wisdom has thought it fit that before initiation of proceedings for perjury or for forgery of documents, the Court has to apply its mind and has to record the finding whether further probe into the matter was necessary in the interest of justice, and apart from that, whether it was expedient and necessary. The formality of inquiry, as contemplated under Section 340 Cr. P.C. is not an empty formality. The learned Sessions Judge is expected to apply his mind and see whether further inquiry has to be carried on by the Magistrate. The reason is obvious that distinction has to be made between evidence which is not believed to be true and not accepted, and / or relied upon by the Court, and the evidence which is proved as false evidence, given on oath. The procedure which is prescribed under Section 340 is therefore, in the nature of safeguard, which has been imposed upon filing of frivolous and unwarranted prosecution for giving false evidence or producing fabricated documents. In large number of cases, evidence is given by witnesses in cross-examination. An attempt is made by the otherside either to impeach the credibility of the witness or to show that the evidence given in examination-in-chief is neither probable nor reliable. In all such cases, where the prosecution / opponent succeeds in shaking credibility of the witness, it cannot be said that said witness has given false evidence. Whenever the creditworthiness of the witness is shaken, in all such cases complaint for the offence punishable under Section 193 IPC is not filed. It is abundantly clear that the Court should examine this issue from that angle and accordingly record the finding.

9. In the case of Pritish, [2002 ALL MR (Cri) 732 (S.C.)] (supra) the Apex Court has observed that in each and every case personal hearing need not be given. It is to be seen that the said observation has been made in the context of the said case. In the said case, the prosecution was launched against the Appellant therein, who had submitted forged documents in order to claim enhanced compensation, and he had succeeded in doing so. He was represented before the reference Court. Under these circumstances, the Apex Court has observed in paragraph 6 that a separate notice need not have been given to the Appellant.

10. However, even if personal hearing is not given, it is duty of the Court to record a proper finding. In our view, the said course of action appears to have been not followed by the learned Sessions Judge. The impugned order, therefore, which has been passed, has to be set aside and the matter, therefore, will have to be remanded back to the Sessions Court. The complaint which has been filed, therefore, will have to be quashed. It is further clarified that it is open for the learned Sessions Judge to consider issuance of the notice under Section 340(1) Cr. P.C. in accordance with law. The complaint, if any, filed thereafter on such finding, would not be hit by the provisions of Section 300 Cr. P. C. and the principles of double jeopardy under Article 20 (2) of the Constitution of India, since the Appellants have not been prosecuted, punished, convicted or acquitted. With these clarifications, appeal is allowed and disposed of.

Appeal allowed.