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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 596 OF 2014
(Criminal Application No. 890 of 2013 is converted into appeal)
Dr. Dilip Shankar Burte
V
The State of Maharashtra
CORAM : V. M. KANADE, &
P. D. KODE, JJ.
DATE : JULY 18, 2014
Citation;2014 ALLMR(cri)3847 Bom
Heard Mr. Kumbhkoni, learned Senior Counsel appearing
1.
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.
Heard. Admit. By consent of parties, appeal is taken up
4.
for final hearing and disposal.
3.
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
Mr. Kumbhkoni, learned Senior Counsel appearing for
5.
under Section 341 Cr. P. C.
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].
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
If an offence punishable under Section 193 I.P.C., is
Appellant.
made by the learned Senior Counsel appearing on behalf of the
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:
ig
“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-
accused in custody to such Magistrate; and
bailable and the Court thinks it necessary so to do send the
(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
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APEAL. 596-14
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 (supra) the Apex Court has
observed that in each and every case personal hearing need not be
context of the said case.
ig
given. It is to be seen that the said observation has been made in the
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
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APEAL. 596-14
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.
Sd/-
[P. D. KODE, J.]
ig
Vinayak Halemath
Sd/-
[V. M. KANADE, J.]
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