Before invoking Section 344 Cr.P.C. it is incumbent on the Magistrate or the Sessions Court to express opinion in the Judgment/final order that the witness had given false evidence knowingly or wilfully or had fabricated false evidence. Coupled with the said finding, the judgment/final order should contain satisfaction of the Magistrate/Sessions Judge as to the necessity and expediency in the interest of Justice that such witness should be tried summarily for giving or fabricating false evidence. In the absence of the above two ingredients in its judgment, the lower Court should not have resorted to procedure under Section 344(1) Cr.P.C. For appreciating existence of such finding and expression, reading of the following portion of judgment of the lower Court in C.C. No. 39 of 2007 would become relevant:
There is no finding of the lower Court that the petitioner as P.W-1 gave false evidence in Court or fabricated false evidence and produced the same in Court. On the other hand, the lower Court placing reliance on evidence of P.W-1 came to the conclusion that the accused therein are not guilty of the offences therein. There was nothing in the mind of the lower Court at the time of delivery of judgment in C.C. No. 39 of 2007 on P.W-1 giving any false evidence or fabricating any false evidence in that case muchless any expression of intention to proceed against P.W-1 for giving false evidence. Therefore, further action of the lower Court after delivery of the said judgment by invoking Section 344(1) Cr.P.C was not warranted.
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Decided On: 10.07.2012
Appellants: Malayanauru Anantha Anandacharyulu @ Narayanacharyulu
Vs.
Respondent: The State of A.P., P.P. High Court of A.P.
Vs.
Respondent: The State of A.P., P.P. High Court of A.P.
Hon'ble Judges/Coram:
Honourable Sri JusticeSamudrala Govindarajulu
Honourable Sri Justice
1. The petitioner is accused of offence punishable under Section 191/193 I.P.C. The petitioner is the first informant in Crime No. 105 of 2006 of Ponnur Town Police Station relating to offences punishable under Sections 143, 348, 353/149 I.P.C. After investigation, the police filed charge sheet in that crime as C.C. No. 39 of 2007 on the file of Additional Judicial Magistrate of the First Class, Ponnur. After trial, the Magistrate pronounced acquittal of all the accused in C.C. No. 39 of 2007. During trial of that case, the petitioner was examined as P.W-1 and he turned hostile to the prosecution and did not support the version contained in F.I.R/his report Ex.P-1. He stated as P.W-1 that he gave report to the police and that Ex.P-1 is his report. It was a case relating to staging of Dharna in front of A.P.S.R.T.C. bus stand. He deposed that he cannot identify the mob who were holding Dharna. In cross-examination by the Assistant Public Prosecutor he admitted that he stated before the police that A-1 along with his associates formed themselves into unlawful assembly and obstructed his duties and all other staff in order to hold a protest and locked the doors of his room while he was discharging his duties and that the accused also abused him in filthy language and that the accused also detained his Deputy Superintendent when he entered into his room for office work. He further volunteers that on that day M.L.A and his associates came to his office and went away and they did not commit any offence.
2. After pronouncement of acquittal in C.C. No. 39 of 2007, the lower Court gave show cause notice to the petitioner as to why the Court should not proceed against him under Section 344(1) Cr.P.C for giving false evidence knowingly on oath. After receiving the petitioner's explanation, the lower Court passed the impugned order. The lower Court found that after perusing evidence of the petitioner as P.W-1 and his written report Ex.P-1, it was of the opinion that the accused gave false evidence with an intention to help the accused. Thereupon the said proceedings were taken on file as C.C. No. 17 of 2012 for the offence punishable under Section 191/193 I.P.C.
3. It is contended by senior counsel appearing for the petitioner that since there are no two statements given on oath by the same petitioner contrary to or inconsistent or irreconcilable with each other before the lower Court, the lower Court should not have proceeded against the petitioner for trying offence under Sections 191 I.P.C punishable under Section 193 I.P.C against him. It is further contended that in the absence of any finding of the lower Court in judgment of acquittal dated 16.12.2011 passed in C.C. No. 39 of 2007 to the effect that P.W-1 gave false evidence and is liable to be proceeded for giving false evidence knowingly in Court, further proceedings under Section 344(1) Cr.P.C. should not have been initiated by the lower Court. There is no finding of the lower Court in the judgment in C.C. No. 39 of 2007 to the effect that P.W-1 gave false evidence before that Court; and the lower Court also did not express therein any opinion that petitioner should be proceeded with for perjury as per Section 344(1) Cr.P.C. Admittedly there is no prior statement of the petitioner on oath relating to the facts in C.C. No. 39 of 2007, except his oral evidence as P.W-1 in that Court during trial. Ex.P-1 report therein was not given by the petitioner on oath.
4. Section 344(1) Cr.P.C reads as follows:
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 appearing 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 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.
5. Before invoking Section 344 Cr.P.C. it is incumbent on the Magistrate or the Sessions Court to express opinion in the Judgment/final order that the witness had given false evidence knowingly or wilfully or had fabricated false evidence. Coupled with the said finding, the judgment/final order should contain satisfaction of the Magistrate/Sessions Judge as to the necessity and expediency in the interest of Justice that such witness should be tried summarily for giving or fabricating false evidence. In the absence of the above two ingredients in its judgment, the lower Court should not have resorted to procedure under Section 344(1) Cr.P.C. For appreciating existence of such finding and expression, reading of the following portion of judgment of the lower Court in C.C. No. 39 of 2007 would become relevant:
On evaluation of evidence before this Court I believe that it is established that on 12.09.06 A1 came to the RTC depot and entered into P.W1 chamber and enquired about the Regional Manager and discussed about the proposed closure of RTC depot at Ponnur and conducted dharna along with his party persons and social workers. There is no evidence before the court that A1 wrongfully confined P.W1 & P.W2 in P.W1's chamber and locked the door, detained and obstructed them while discharging their official duties. When the alleged victims P.Ws1 & 2 consistently stated before this Court that A1 not committed any offence against them, there is no reason before me to believe the prosecution story for the alleged offence. I is well principles of law that conducting of dharna peacefully in the democratic manner for good cause is not an offence unless and until its is converted into violence and causing injury or damage to any person or property. As a representative of the people A1 who is the local MLA can conduct dharna legally for the common purpose of his people and area. It is a proved fact that the dharna is conducted with regard to the proposal of the closure of APSRTC depot at Ponnur. Though it is established that A1 came to the chamber of RTC depot and enquired about the Regional Manager and discussed about the closing of Ponnur depot and after conducting dharna along with public, he left it, it cannot be treated as an offences punishable U/s. 143, 348, 353 r/w 149 IPC when absolutely there is no evidence before this Court that A1 and other accused formed themselves into unlawful assembly and detained P.W1, P.W2 in DM Chamber while discharging their duties and locked DM chamber when the alleged victims P.W1 and P.W2 themselves spoken that no offences is committed by the accused this Court has no other go except to acquit the accused.
There is no finding of the lower Court that the petitioner as P.W-1 gave false evidence in Court or fabricated false evidence and produced the same in Court. On the other hand, the lower Court placing reliance on evidence of P.W-1 came to the conclusion that the accused therein are not guilty of the offences therein. There was nothing in the mind of the lower Court at the time of delivery of judgment in C.C. No. 39 of 2007 on P.W-1 giving any false evidence or fabricating any false evidence in that case muchless any expression of intention to proceed against P.W-1 for giving false evidence. Therefore, further action of the lower Court after delivery of the said judgment by invoking Section 344(1) Cr.P.C was not warranted.
6. Section 344(1) Cr.P.C contemplates giving of reasonable opportunity by show cause notice after the Magistrate taking cognizance of the offence of giving false evidence. The said provision does not contemplate giving of show cause notice before taking cognizance of the offence. For taking cognizance of the offence of giving false evidence, no show cause notice is necessary. Show cause notice is not a condition precedent for taking cognizance. Show cause notice is contemplated to be given during the course of trial of the offender for giving false evidence after the said offence is taken cognizance by the Magistrate/Sessions Judge.
7. Section 344 Cr.P.C empowers not only a Magistrate of the First Class but also a Sessions Court whether presided by a Sessions Judge or Additional Sessions Judge or Assistant Sessions Judge to take cognizance of the offence of giving false evidence or fabricating false evidence. This provision is an exception to Section 193 Cr.P.C which imposes restriction on Court of Session taking cognizance of any offence as a Court of original jurisdiction unless committed to it by a Magistrate. Even though the offence under Section 191 I.P.C is punishable under Section 193 I.P.C with imprisonment which may extend to 7 years and fine, in case cognizance is taken by the same Court which delivered the Judgment under Section 344(1) Cr.P.C, the person who is tried thereunder can be sentenced to imprisonment for a term which may extend to only three months or to fine which may extent to Rs. 500/- or with both. The Magistrate/Sessions Court in case finds a witness guilty of giving false evidence, need not prepare a separate complaint either by itself or by its authorised officer for the purpose of presenting the same before a Magistrate of the First Class having territorial jurisdiction to try the same. The provision under Section 344(1) Cr.P.C is to be followed after summary procedure and not elaborate procedure prescribed for trial of warrant cases. The lower Court by filing a separate complaint against the petitioner for the offence punishable under Section 191/193 I.P.C appears to have been influenced by procedure under Section 340 Cr.P.C. When the lower Court invoked the procedure under Section 344(1) Cr.P.C, it is not incumbent to overlap with the procedure under Section 340 Cr.P.C. In the case on hand, the lower Court totally bungled in adopting the procedure under Section 344(1) Cr.P.C by not following the same in letter.
8. Senior Counsel for the petitioner further pointed out that the lower Court should not have resorted to Section 344(1) Cr.P.C when there was no previous statement of the petitioner/P.W-1 on oath which runs inconsistent and which is irreconcilable with evidence of the same witness in Court in C.C. No. 39 of 2007. Legal position on this aspect is well settled.
In Emperor V. Bankatram Lachiram 1904(1) Cri.L.J 390 the Bombay High Court held:
There can be no perjury, unless he has, on oath, staled facts on which this first statement was based and then denied these facts on oath on a subsequent occasion.
In Public Prosecutor V. Nagalinga Reddyi MANU/AP/0150/1959 : 1959 Cri.L.J 564, this Court held that when there are two inconsistent and irreconcilable statements given by a person on oath, then the question as to which one of the two statements is false becomes irrelevant.
The Kerala High Court in Vittappan V. State MANU/KE/0281/1987 : 1987 Cri.L.J 1994 considered the question whether a witness who gave first information report to the police under Section 154 Cr.P.C commits perjury as defined under Section 191 I.P.C in case he goes back on his statement contained in F.I.R and gives evidence on oath in Court in a different fashion and discussed as follows:
While giving Ext. P1 P.W. 1 was not legally bound by an oath or by an express provision of law to state the truth and he was also not bound by law to make a declaration upon any subject. IT is only an information given under S. 154 of the Code regarding commission of a cognizable offence intended to set the law in motion. Though the maker has to sign the statement which is recorded, the Session does not even say that the statement should be true to the maker's knowledge or belief or that it should be given on oath. Even a telephone information regarding commission of a cognizable offence by unknown persons could form first information under S. 154. In contradistinction with S. 154, the statement given under S. 161, though not to be signed by the maker, must be true because S. 161(2) says "shall be bound to answer truly". First information statement is only the information on which the concerned police officer has to start the investigation to find out the truth and collect the materials. IT can be given on hearsay information also. A wrong first information statement purposely made for initiating action may be of consequence under some other provision for example in an action for malicious prosecution, but it is not penal under S. 193 on the basis of S. 191. Therefore the falsity of any statement in Ext. P1 cannot be the basis of prosecution.
The Karnataka High Court also took similar view in Ismail Khan V. State MANU/KA/0120/1991 : 1992 Cri.L.J 3566 when the person did not adhere to his previous complaint which was not made on oath.
In T.Bhagi Patra V. State of Orissa MANU/OR/0298/1996 : 1996 Cri.L.J 2423 the Orissa High Court also took similar view to the following affect:
It is crystal clear that the FIR not being a piece of evidence on oath in a judicial proceeding, the concept of giving false evidence in terms of Section 344 of the Code is not attracted.
9. In the case on hand, the petitioner as P.W-1 in C.C. No. 39 of 2007 did not subscribe to the contents of Ex.P-1 report given by him to the police while giving evidence on oath in Court. It is no offence of perjury as defined in Section 191 I.P.C and punishable under Section 193 I.P.C as the statement in F.I.R was not given by the petitioner on oath. Even though it does not amount to offence of perjury under Section 191/193 I.P.C, it may amount to some other offence with which this Court is not concerned in this Criminal Petition. If it amounts to any other offence than perjury, it is for the concerned to take appropriate action as per law by following the procedure prescribed by law. When the procedure prescribed under Section 344(1) Cr.P.C was not followed by the lower Court and when the allegations against the petitioner do not attract the offence under Section 191/193 I.P.C, it follows that registration of C.C. No. 17 of 2012 in the lower Court is nothing but abuse of process of law and the petitioner cannot be asked to undergo rigmarole of trial for the offence under Section 191/193 I.P.C in that case. In the result, the Criminal Petition is allowed quashing order dated 14.02.2012 and registration of C.C. No. 17 of 2012 against the petitioner on the file of Additional Judicial Magistrate of the First Class, Ponnur and the proceedings therein.
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