Bombay High Court
Smt. Anita Anil Kale And Others vs State Of Maharashtra, Thr. P.S.O. ... on 10 August, 2017
Bench: P.N. Deshmukh
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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
-----------------
Shri P.W. Mirza, Advocate for petitioners.
Shri S. Sirpurkar, Additional Public Prosecutor for respondent.
----------------
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.
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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
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"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 :
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"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
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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
