Ranjit Singh vs State Of U.P.
2017 Latest Caselaw 1643 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Reserved on : 24.03.2017
 

 
Delivered on : 08.06.2017 
 

 
Case:- CRIMINAL APPEAL No. 2719 of 2001
 

 
Appellant:- Ranjit Singh
 
Respondent:- State of U.P.
 
Counsel for Appellant:- V. S. Singh
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Harsh Kumar, J.

Heard Shri V. S. Singh, learned counsel for the appellant and learned A.G.A. for the State and perused the record.

The present appeal has been filed against the Complaint Case No. 3387 of 2001 dated 2/4.07.2001 filed by District and Sessions Judge, Jhansi under sections 193 & 194 I.P.C. P.S. Nawabad, District Jhansi in the court of C.J.M. Jhansi.

The brief facts relating to the appeal are that the appellant Ranjit Singh lodged F.I.R. under section 302 & 506 I.P.C. on 20.11.1997 at P.S. Raksa District Jhansi stating therein that "on 19.11.1997, he and his brother Virendra Singh were going to their village by bicycle and when they reached near Ripta of Sabhogar Nala, Panjab Singh and Pahalwan Singh of his village, armed with guns were standing there and after catching hold of his brother Virendra Singh, they started strangulating him and threatened first informant Ranjit Singh due to which he hid himself in the drain and being afraid could not come to lodge F.I.R. at night.". On such F.I.R. the named accused Lallu @ Pahalwan and Punjab were tried together for the offences under sections 302 and 506 I.P.C. in S.T. No. 117/1998 and 222 of 1998. The two sessions trials arising out of one and same incident of case crime no. 254 of 1997 were consolidated and evidence was recorded in S. T. No. 117 of 1998. The first informant Ranjit Singh who is appellant in present appeal was examined as PW-1 before the Sessions Judge, Jhansi on 21.06.2001 and in his examination- in-chief he corroborated the prosecution case and reiterated the averments made in F.I.R. which was proved by him as Exhibit A-1, but in his cross examination after lunch, he resiled from his statement given in examination-in-Chief and denied himself to be the eye-witness of the incident of murder of his brother Virendra Singh. On this the witness i.e. appellant was declared hostile and was cross examined by the D.G.C. Criminal, wherein he stated that the statement given by him in his examination-in-Chief before lunch has not been given under any pressure or apprehension and further stated that he has given the statements, as per directions of policemen and that " मैंने झूठा बयान क्यों दिया इसकी कोई वजह नहीं बता सकता".

After completion of prosecution evidence and recording the statement of accused persons as well as hearing the arguments of respective parties the Sessions Judge, Jhansi vide judgment and order dated 27.06.2001 acquitted the accused persons holding that:-

"इस सम्बन्घ में साक्षी का स्पष्टीकरण मांगने पर उसने बताया कि वह इसका कोई स्पष्टीकरण नहीं दे सकता कि उसने न्यायालय के समक्ष झूठा बयान क्यों दिया l अभियोजन साक्षी संख्या १ रंजीत सिंह के उपर्युक्त बयानों से यह पूर्णतः स्पष्ट है कि उसने न्यायालय के समक्ष जानबूझकर झूठा बयान दिया है और इस कारण उसने कतिपय अपराध कारित किया है l उक्त कारणों हेतु रंजीत सिंह उपर्युक्त सर्वथा दोषी प्रतीत होते हैं और उनका इस सम्बन्ध में समक्ष न्यायालय के समक्ष परीक्षण करके उचित दण्डादेश पारित किया जाना समीचीन प्रतीत होता है l इस हेतु एक दाण्डिक परिवाद पत्र सक्षम न्यायालय के समक्ष प्रस्तुत किया जावे l जिला शासकीय अधिवक्ता, दाण्डिक, झाँसी परिवाद पत्र का प्रारूप प्रारूपित कर न्यायालय के समक्ष रखेंगे और न्यायालय की ओर से अपने हस्ताक्षार कर संबंधित मजिस्ट्रेट के यहाँ उसे अंतर्गत एक सप्ताह प्रस्तुत करेंगे l"

In furtherance of findings given by the Sessions Judge in consolidated judgment dated 27.06.2001 passed in S.T. No. 117 and 222 of 1998, the complaint in question dated 2/4.07.2001 was filed by Sessions Judge, Jhansi before the C.J.M. Jhansi under sections 193 and 194 of India Penal Code P.S. Nawabad, Districh Jhansi, upon registering which the Magistrate after consideration, taken cognizance of offences under sections 193 and 194 I.P.C. having been committed by accused-appellant, issued process against him and upon his appearance before the Court copies of all relevant papers were provided to him. Feeling aggrieved, the accused has preferred this appeal under section 341 of the Code of Criminal Procedure.

I have heard Shri V. S. Singh learned counsel for appellant and learned A.G.A. for the State and perused the record.

Learned counsel for the accused-appellant contended that the appellant has not committed any offence under sections 193 and 194 I.P.C. and the complaint itself is not competent; that for the offence under sections 193 and 194 I.P.C., false evidence must have been given intentionally and willfully; that the appellant did not give any false evidence intentionally and willfully in the Session Trial Nos. 117 and 222 of 1998 in respect of the murder of his real brother Virendra Singh; that as per F.I.R. of above murder case, the appellant was an eye witness of the incident and prior to the murder of his brother, the accused had committed the murder of his father ; that in his examination-in-Chief the appellant fully supported the prosecution case and proved the F.I.R. but his cross examination was deffered for after lunch and in the meantime, he was threatened by the accused persons of dire consequences and so he could not dare to support his case in his cross examination and had to resile from his statement given in examination-in-Chief; that in the circumstances, it will be wrong to say that the appellant has given any false evidence intentionally and willfully; that before filing the complaint for the offences under sections 193 and 194 I.P.C. the learned Sessions Judge was required to satisfy himself as to whether there is prima facie sufficient and reasonable grounds against the appellant for proceeding under sections 193 and 194 I.P.C. and also ought to have served a show cause notice to the appellant giving him opportunity to explain the situation under which had to resile from his statement in examination-in-Chief.

In support of his arguments, learned counsel for appellant has relied on the judgment of Apex Court dated 12.09.1978 in the case of Dr. S.P. Kohli Vs. High Court of Punjab and Haryana AIR 1978 (SC) 1753.

Per contra, learned A.G.A. supported the proceedings of complaint case under section 340 Cr.P.C. and contended that section 340 of the code of criminal procedure does not contemplate service of any notice before filing of complaint; that the appellant in his cross examination has totally resiled from his statement on oath given in his examination-in-chief without any reasonable cause or excuse, which shows that he has given false evidence willingly, knowingly and deliberately; that the appellant has a remedy to put his defence before the trial court, in the complaint case under section 340 Cr.P.C. and explain as if he did not give any false evidence as well as to justify the circumstances under which the two contradictory statements were given by him.

Upon hearing the parties counsel and perusal of record as well as lower court record containing the copy of appellant's statement on oath given in S. T. No. 117 of 1998 before Sessions Judge, Jhansi on 21.06.2001 and a copy of judgment dated 27.06.2001 jointly passed in the two sessions trial, and before proceeding further the provisions of Section 340(1) Cr.P.C. are being reproduced 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 interests 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."

From the language of above section it is crystal clear that if upon an application or otherwise any court is of opinion that any offence referred to in clause (b) of section (1) of section 195 has 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, it may make such preliminary inquiry, if any, as it thinks necessary before making complaint thereof in writing.

Under the above provisions, the court is not mandatory for a court to make enquiry or to serve any notice before making complaint under section 340 Cr.P.C. and only thing required from the court concerned is, to make a preliminary enquiry, only if it is of the opinion that such enquiry is necessary.

In the present case, the appellant has stated on oath in his examination-in-Chief that he was an eye-witness of the incident and has fully supported the prosecution case, while he has completely resiled from his previous statement made in examination-in-chief, during his cross examination after lunch, stating himself to be not an eye-witness of the incident and upon being asked, he has also specifically stated that:-

"मैंने झूठा बयान क्यों दिया इसकी कोई वजह नहीं बता सकता l यह कहना गलत है कि मैं मुल्जिमान से मिल जाने के कारण उन्हें बचाने के लिए झूठा बयान दे रहा हूँ l"

In view of his above statement the Sessions Judge has specifically held that upon being asked for explanation he has stated that he cannot give any explanation for giving false statement before the Court, which shows that he has intentionally given false statement before the Court and has committed the offence.

In view of the facts and circumstances of this case, when the two self-contradictory statements are self explanatory and the appellant has refused to give any explanation for giving false statement, it was not at all required for the Sessions Judge to serve further notice to show cause or to hold any preliminary inquiry which may not be deemed necessary under the facts and circumstances of this case.

In the case relied by the appellant in A.I.R. 1978 SC 1753 (Supra), the Apex Court has held that " It is true that what the courts have to see before issuing the process against the accused is, 'whether there is evidence in support of the allegations made by the complainant to justify the initiation of proceedings against the accused' and 'not whether the evidence is sufficient to warrant his conviction', but this does not mean that the courts should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of criminal law in motion against the accused." In the above case, one Bhajan Lal was tried and convicted for committing rape on a minor girl and causing her death for the offences under sections 376 and 302 I.P.C. and in appeal before the High Court it came to the conclusion that Dr. S.P. Kohli the then Chief Medical Officer, Firozpur in connection with the collection of smegma by scrapping of the yellowish material from the genitals of accused, made a false statement with a malafide intention in pressurizing lady doctor Ms. Grewal for making endorsement of agreement and directed for his prosecution for an offence under section 193 I.P.C. In above case, the Apex Court found that the accused was referred to the appellant Dr. S.P. Kohli, the then Chief Medical Officer after two days of the incident but was not even produced before him and since the evidence of smegma may not be collected beyond 24 hours of the incident of sexual intercourse, so no malafide intention may be imputed on him in not collecting the sample of smegma of accused by scraping the yellowish material from his genitals. In the above case, the Apex Court held that instead of seeing as to whether there is evidence in support of allegations made by complainant to justify the initiation of proceedings against, the accused the High Court committed an error in adopting a negative approach by holding that " it is difficult to hold that there is no prima facie case for coming to the conclusion that Dr. S.P. Kohli pressurized Dr. Ms. Grewal to make the endorsement " I agree" on the copy of medico-legal report, and also held that the notice given by High Court was laconic and not happily worded to satisfy the essential requirement of law before proceeding further under the provisions of section 340(1) Cr.P.C.

In above case Dr. S.P. Kohli, the appellant was neither accused nor witness in the sessions trial before the court and was held to be guilty in observations made by the High Court in appeal against conviction of accused. In the circumstances since Dr. S.P. Kohli was not party to the court proceedings, it was found necessary by the Apex Court that an enquiry should have been made after serving a proper notice to Dr. Kohli giving him an opportunity for filing reply and that the notice though served by High Court on the appellant but was laconic besides being not happily worded.

Unlike the case relied by appellant in the case in hand the appellant was first informant of criminal case and prosecution witness at trial and had been given opportunity to explain the reason for giving false evidence, to which he refused to give any reason in his reply mentioned on last page no. 5. In the facts of the case in hand there was no requirement of any notice or any preliminary enquiry, as was required in case of Dr. S.P. Kohli, who was not party to the proceedings. The facts of the case relied by appellant, are entirely different from this case and are not applicable to the case.

In the latest judgment passed in the case of Amarsang Nathaji Vs. Hardik Harshadbhai Patel and others A.I.R. 2016 SC 5384 where an order passed by Senior Civil Judge, Ahmedabad declining to grant interim injunction in Civil Suit No. 28 of 2012, was confirmed by the High Court of Gurarat, it was found that after confirmation of the order by the High Court, the appellant, defendant no. 1 in the suit changed his stand by filing another statement and subsequently compromised the matter with the plaintiff whose appeal was earlier dismissed against order declining grant of interim injunction, the High Court taken the view that the conduct of appellant has affected the administration of justice and therefore, it is expedient in the interest of justice to file a complaint against the appellant under section 340 of the code. In above case the Apex Court held in para 8 and 11 as under:

"(8) In the process of formation of opinion by the court that it is expedient in the interest of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 of the Cr.P.C. has been committed, the court may dispense with the preliminary inquiry.

(11) No doubt, such an opinion can be formed even without conducting a preliminary inquiry, if the formation of opinion is otherwise possible. And even after forming the opinion also, the court has to take a decision as to whether it is required, in the facts and circumstances of the case, to file the complaint. Only if the decision is in the affirmative, the court needs to make a complaint in writing and the complaint thus made in writing is then to be sent to a Magistrate of competent jurisdiction."

The complaint in this case has been filed against appellant on the basis of prima facie evidence on record, and at this stage court is not required to consider as to whether the evidence is sufficient to ascertain definite conviction of the accused appellant, as it is a matter to be decided upon evidence of parties, by giving reasonable opportunity of defence evidence and hearing to the accused.

In view of the discussions made above, I have come to the conclusion that learned counsel for the appellant has failed to show any illegality, irregularity or incorrectness in directing and filing the impugned complaint no. 3387 of 2001 under sections 193 and 194 I.P.C. and has failed to show any sufficient ground for quashing or setting aside the complaint as well as further proceedings in criminal complaint case no. 3387 of 2001. The appeal has no merits and is liable to be dismissed.

The appeal is dismissed accordingly.

Let the lower court record be transmitted back to the court below alongwith a copy of judgment, for proceeding with the complaint case in accordance with law after giving reasonable opportunity of hearing to the accused -appellant. The accused-appellant was granted bail on 30.08.2001 and will be entitled to remain on bail in the court below during trial on same bail bond/surety bonds, furnished in furtherance of order dated 30.08.2001 of this Court or on filing of fresh bail bond/surety bonds as the case may be, to the satisfaction of the court below.

Date:- 08/06/2017

Sharad/-

(Harsh Kumar, J.)