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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.348 OF 2016
1) Smt. Anita Anil Kale,
age 40 years, r/o Indla,
Taluka and District Amravati.
2) Raviprakash Raut/Ravindra Raut,
age 25 years, r/o Indla,
Taluka and District Amravati.
3) Anjuman Khan Muzzaffar Khan,
age 30 years, r/o Indla,
Taluka and District Amravati.
4) Ghulamnabi Mohd. Habib,
age 40 years, r/o Indla,
Taluka and District Amravati. ... Petitioners
- Versus -
State of Maharashtra, through
Police Station Officer, Police Station,
Frezarpura, District Amravati. ... Respondent
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Shri P.W. Mirza, Advocate for petitioners.
Shri S. Sirpurkar, Additional Public Prosecutor for respondent.
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CORAM : P.N. DESHMUKH, J.
DATED : AUGUST 10, 2017 ORAL JUDGMENT :
Heard Shri Mirza, learned Counsel for petitioners, and Shri Sirpurkar, learned Additional Public Prosecutor for respondent. ::: Uploaded on - 11/08/2017 ::: Downloaded on - 12/08/2017 02:11:51 :::
2 wp348.16 2) Prayer in this petition is to quash and set aside the impugned
notices dated 19/4/2016 issued in pursuance of observations of learned Additional Sessions Judge, Amravati in Miscellaneous Criminal Application No.1095/2015.
3) Shri Mirza, learned Counsel for petitioners, by referring to Annexure "B" to the petition has submitted that this was an application filed for grant of anticipatory bail by accused, who was involved in offences punishable under Sections 468 and 471 of Indian Penal Code and in support of the said application, petitioners, who were members of the Gram Panchayat, have filed affidavits. Learned Court below while considering the application for bail found that affidavits submitted by petitioners were false and and as such, petitioners had tried to mislead the Court by filing false affidavits. It is further submitted that in view of the observations of learned Additional Sessions Judge while rejecting the bail application, impugned notices dated 19/4/2016 came to be issued under Section 344 of the Code of Criminal Procedure. It is submitted that in compliance to notices dated 19/4/2016, petitioners appeared before learned Additional Sessions Judge on 28/4/2016. However, subsequent proceedings came to be stayed in view of order dated 4/5/2016 passed by this Court in favour of petitioners by way of ad interim relief.
4) Shri Mirza, learned Counsel for petitioners, has further
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submitted that recourse adopted by learned Additional Sessions Judge to Section 344 of the Code of Criminal Procedure is contrary to law as merely observing that false affidavits are filed in any proceeding is not sufficient to issue show cause notices under the said provision and for that purpose, has relied upon the judgment of this Court in Dr. (Miss) Azmy Pest Bharucha vs. The State of Maharashtra (2000 ALL MR (Cri) 459). It is contended that as the show cause notices impugned in this petition are issued merely on the basis of some documents filed in the bail application without physical presence of any of these petitioners as witnesses, they do not stand for any reason and, therefore, same be quashed and set aside.
5) Shri Sirpurkar, learned Additional Public Prosecutor for respondent, has supported the impugned show cause notices and submitted that from the order by which bail application came to be rejected, it is sufficiently established that petitioners by filing affidavits had made an attempt to mislead the Court and since affidavits are sworn by them having false contents, they are liable for prosecution. It is thus contended that show cause notices under Section 344 of the Code of Criminal Procedure are rightly issued to the petitioners.
6) Considering Section 344 of the Code of Criminal Procedure, it is necessary to note that same speaks about forming an opinion when any ::: Uploaded on - 11/08/2017 ::: Downloaded on - 12/08/2017 02:11:51 ::: 4 wp348.16 "witness" appears in the proceedings and such "witness" having knowledge gives false evidence or fabricates false evidence. Section 344 of the Code of Criminal Procedure further contemplates that such evidence should be given intentionally in the proceedings knowing it to be false. Thus, under these circumstances, if the Court is satisfied that it is necessary and expedient in the interest of justice that such "witness", who has given such false evidence or fabricated such false evidence, should be tried summarily, then Court can take cognizance of the offence after giving reasonable opportunity to said "witness" to show cause as to why he should not be prosecuted and tried as "offender" summarily and be punished according to law. The documents, which are filed in support of the petition, particularly order rejecting bail application reveal that the affidavits sworn by petitioners and filed by them in support of accused were found to be false and in view of finding as such, impugned show cause notices are issued as aforesaid.
7) In view of facts as aforesaid, there is nothing on record to establish that petitioners were physically present or appeared in the proceedings or they can be termed as "witnesses" as required to attract the provisions of Section 344 of the Code of Criminal Procedure.
8) In the case of Dr. (Miss) Azmy Pest Bharucha (supra), in similar set of facts, in para 15 of the judgment, it is observed thus : ::: Uploaded on - 11/08/2017 ::: Downloaded on - 12/08/2017 02:11:51 :::
5 wp348.16 "For the above mentioned discussion, in my considered opinion, the Magistrate acted rather hastily and issued a show cause notice at a stage, which was not correct. In short, it was a notice issued at a premature stage. Section 344 of Code of Criminal Procedure, 1973 gives this power to the Sessions Court or to the Magistrate, before whom, such a person appears as a witness, and after conclusion of such proceedings, and after being satisfied about the falsity of the evidence given by that witness, or the evidence fabricated by that witness, as the case may be, as and when such a stage comes. In such an eventuality, the Sessions Court, or the Magistrate, may, if he is satisfied, can take proper steps as he may deem fit. The fallacy in the present case at hand lies in the fact that the petitioner had not appeared as a witness at all. She has yet to appear as a witness. Entertaining bail application and disposing of the same, either by way of rejecting it, or by way of granting it, is not a stage, when such a show cause notice can be issued, and such proceedings are not "judicial proceedings" within the meaning of Section 344 of the Code of Criminal Procedure, 1973, so as to empower the Sessions Court or the Magistrate to issue show cause notice under Section 344 of the Code of Criminal Procedure, 1973. Hence, the following order :
Criminal Writ Petition No.394 of 1992 is allowed. Rule made absolute in terms of prayer clause (a)."
As such, Section 344 of the Code of Criminal Procedure has limited application. It applies to witness appearing before the Court, who has intentionally given false evidence or fabricated false evidence for the purpose of being used in the proceedings before the Court. The words "of any witness appearing in such proceeding" appearing in Section 344 of the Code of Criminal Procedure are to be construed strictly. From the language of this Section, it is clear that this Section applies only in case of a person who gives false evidence by physically appearing in Court. Therefore, the crucial point to be noticed in the Section is that it is only ::: Uploaded on - 11/08/2017 ::: Downloaded on - 12/08/2017 02:11:51 ::: 6 wp348.16 when a witness appears before the Court and gives false evidence or fabricates such evidence, he can be proceeded against. This Section cannot be applied even if a person is filing a sworn affidavit or a document in a Court because he cannot be said to have appeared as a witness.
9) Having considered facts as aforesaid, the petition is allowed. Rule is made absolute in terms of prayer clause (b) of the petition. No order as to costs.
JUDGE khj ::: Uploaded on - 11/08/2017 ::: Downloaded on - 12/08/2017 02:11:51 :::