Thus, a person can be punished under Section 193 I.P.C. if he gives false evidence or fabricated false evidence, whereas under Section 199 I.P.C. a person can be punished if he gives any statement in a declaration which can be received by a court of justice as evidence. In the instant case, learned C.J.M., Sahibganj took cognizance against the petitioner, because he filed an application supported with affidavit in the court of Sessions Judge, Sahibganj for taking action against Bhanu Pratap Singh. The aforesaid application was treated as evidence by learned Sessions Judge, because it was supported with affidavit. In my view, the aforesaid conclusion arrived by the Sessions Judge, Sahibganj is against the provisions of Section 1 of the Evidence Act and judgments of Hon'ble Supreme Court and Delhi High Court.
The contention of Sri R.P. Singh, learned counsel for the State, that aforesaid application be treated as evidence under Section 294 of the Cr.P.C., appears to be misconceived. It reveals from the plain reading of Section 294 of the Cr.P.C. that it deals with such documents, which were filed either by the prosecution or accused, in support of their case. If the genuineness of such documents not challenged by adverse party then it can be used as evidence under Sub-Section (3) of Section 294 of the Cr.P.C. Any application and/or interlocutory application filed by either of the party for some relief will not come within the purview of Section 294 of the Cr.P.C. Accordingly, the aforesaid contention of Sri Singh is liable to be rejected herewith. In view of aforesaid conclusion that if an application supported with an affidavit filed in a court for some relief is not an evidence within the meaning of Evidence Act, I find that no offence either under Sections 193 & 199 of the I.P.C. is made out against the petitioner.Citation: 2013(4)AJR554 ;2014 CR L J(NOC) 44(Jhar)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Decided On: 21.06.2013
Appellants: Anil Kumar Mishra
Vs.
Respondent: The State of Jharkhand and Another
Vs.
Respondent: The State of Jharkhand and Another
Hon'ble Judges/Coram:Prashant Kumar , J.
2. Sri Jitendra S. Singh, appearing for the petitioner, submits that no offence under Sections 193 & 199 of the I.P.C. is made out, because an application supported with affidavit filed in a court is not an evidence within the meaning of Evidence Act. Therefore, it cannot be held that petitioner had laid any false evidence in judicial proceeding. Sri Singh in support of his contention has relied upon the judgments of Hon'ble Supreme Court of Smt. Sudha Devi Vs. M.P. Narayanan reported in MANU/SC/0459/1988: AIR 1988 SC 1381 and judgments of Delhi High Court in Parkash Rai Vs. J.N. Dhar reported inMANU/DE/0012/1977 : AIR 1977 Delhi 73, Delhi Lotteries Vs. Rajesh Aggarwal & Ors. reported in MANU/DE/0081/1997 : AIR 1998 Delhi 332. Accordingly, it is submitted that the impugned order cannot be sustained and liable to be quashed.
3. On the other hand, Sri R.P. Singh, J.C. to G.P.-II submitted that learned Sessions Judge, Sahibganj has passed his order on 21.06.2005 under Section340 of the Cr.P.C. and had concluded that prima facie offences under Sections 193 & 199 of the I.P.C. made out against the petitioner. He further submits that the aforesaid order has become final because no appeal filed against the same by the petitioner, as provided under Section 341 of the Cr.P.C. He further submits that the learned Chief Judicial Magistrate, Sahibganj by the impugned order only took cognizance against the petitioner as held by the Sessions Judge. Thus, there is no illegality in the said order. Learned State counsel further submits that as per Sections 294 of the Cr.P.C. - if any document and/or affidavit filed in a court, the same can be looked into as evidence. Thus, even if an affidavit filed before a court is not an evidence as per the provisions of Evidence Act, the same is evidence under the Cr.P.C. Accordingly, the offences under Sections 193 & 199 of the I.P.C. made out against the petitioner. Accordingly, he submits that there is no merit in this application.
4. Having heard the submissions, I have gone through the record of the case. Admittedly learned Sessions Judge, Sahibganj conducted an inquiry under Section 340 of the Cr.P.C. and vide order dated 21.06.2005 he found that prima facie offences under Sections 193 & 199 of the I.P.C. are made out against petitioner. Thereafter he filed a complaint against petitioner. It is admitted that petitioner had not challenged aforesaid order dated 21.06.2005. Thus, the order of Sessions Judge, Sahibganj become final. Now the question arose as to whether the order dated 02.07.2005 passed by the Chief Judicial Magistrate, Sahibganj whereby he took cognizance against the petitioner can be substantiated specially in view of the fact that petitioner had not challenged the order of Sessions Judge. This bring me to consider the provisions of Section 343 of the Cr.P.C., which runs as follows:-
343. Procedure of Magistrate taking cognizance.-(1) A Magistrate to whom a complaint is made under section 340 or section341 shall notwithstanding anything contained in Chapter XV proceed, as far as may be, to deal with the case as if it were instituted on a police report.(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.
From bare perusal of aforesaid provision, it is clear that any complaint filed by any court after inquiry under Section 340 of the Cr.P.C. will be treated as a police report by the Magistrate. Thus, even if the court, which filed complaint under Section 340 of Cr.P.C. come to the conclusion that prima facie any offence enumerated under Section 195(2) of the Cr.P.C. is made out against the accused, it is imperative for the Magistrate to apply his mind on the facts on the case, as if he is perusing a police report and give independent finding that prima facie an offence made out. Thus, if the Magistrate, who is empowered to take cognizance, had not applied his judicial mind on the complaint and/or materials collected during inquiry for coming to the conclusion that prima facie an offence made out, in my view, the said order of cognizance can be challenged, even though no appeal filed against the order of the court, which filed complaint.
5. Now coming to the merit of the case. I find that petitioner filed an application before the learned Sessions Judge for taking action against Bhanu Prasad Singh, who, according to the petitioner, took provisional bail by giving a false statement. The said application, filed by petitioner, is supported with affidavit. Now the question arose as to whether the aforesaid application, supported by affidavit can be treated as an evidence?
6. This bring me to consider the various previsions of Evidence Act. Section 1 of the Evidence Act deals with regard to the applicability of the Evidence Act, whereas Section 3 of the Evidence Act defines evidence. The aforesaid provisions are quoted herewith:
1. Short title, extent and commencement.-This Act may be called the Indian Evidence Act, 1872. It extends to the whole of India, except the State of Jammu and Kashmir and applies to all the judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September, 1872."Evidence". - "Evidence" means and includes-(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;such statements are called oral evidence;(2) ail documents produced for the inspection of the Court;such documents are called documentary evidence.
7. From perusal of provisions as contained in Section (1) of the Evidence Act, it is clear that if an affidavit presented in any court then the Indian Evidence Act has no application on it. Thus, an affidavit filed in any court is not an evidence. Hon'ble Supreme Court in aforesaid Smt. Sudha Devi Case (Supra) has held - "Besides, affidavits are not included in the definition of 'evidence' in Section 3 of the Evidence Act and can be used as evidence only, if for the sufficient reason court passes an order under O. XIX, Rule 1 or 2 of the Code of Civil Procedure". Similar view taken by Delhi High Court in Parkash Rai's case (Supra) as well as in Delhi Lottery's Case (Supra).
193. Punishment for false evidence.- Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine,and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.199. False statement made in declaration which is by law receivable as evidence.- Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believes to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.
Thus, a person can be punished under Section 193 I.P.C. if he gives false evidence or fabricated false evidence, whereas under Section 199 I.P.C. a person can be punished if he gives any statement in a declaration which can be received by a court of justice as evidence. In the instant case, learned C.J.M., Sahibganj took cognizance against the petitioner, because he filed an application supported with affidavit in the court of Sessions Judge, Sahibganj for taking action against Bhanu Pratap Singh. The aforesaid application was treated as evidence by learned Sessions Judge, because it was supported with affidavit. In my view, the aforesaid conclusion arrived by the Sessions Judge, Sahibganj is against the provisions of Section 1 of the Evidence Act and judgments of Hon'ble Supreme Court and Delhi High Court.
9. The contention of Sri R.P. Singh, learned counsel for the State, that aforesaid application be treated as evidence under Section 294 of the Cr.P.C., appears to be misconceived. It reveals from the plain reading of Section 294 of the Cr.P.C. that it deals with such documents, which were filed either by the prosecution or accused, in support of their case. If the genuineness of such documents not challenged by adverse party then it can be used as evidence under Sub-Section (3) of Section 294 of the Cr.P.C. Any application and/or interlocutory application filed by either of the party for some relief will not come within the purview of Section 294 of the Cr.P.C. Accordingly, the aforesaid contention of Sri Singh is liable to be rejected herewith. In view of aforesaid conclusion that if an application supported with an affidavit filed in a court for some relief is not an evidence within the meaning of Evidence Act, I find that no offence either under Sections 193 & 199 of the I.P.C. is made out against the petitioner. Under the said circumstance, the impugned order dated 02.07.2005 passed by Chief Judicial Magistrate, Sahibganj in O.C.R. No. 22 of 2005 corresponding to T.R. No. 355 of 2005 cannot be sustained. Accordingly, I allow this application and quash the impugned order.
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