Bombay High Court
Shriram S/O Nathu Jadhav vs State Of Mah. Thru. Pso Pusad ... on 24 February, 2021
Bench: Pushpa V. Ganediwala
217apeal 668.2008.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 668 OF 2008
Shriram S/o Nathu Jadhav,
Aged about 23 years, Occ. Farmer,
R/o Ashwinpur Tanda, Tah. Pusad,
District Yeotmal.
(at present Yavatmal Jail).
...APPELLANT
Versus
State of Maharashtra,
through P.S.O., P.S. Pusad (City),
Tah. Pusad, District Yeotmal.
...RESPONDENT
Shri Abhishek S. Shukla, Advocate for the appellant.
Shri M.J. Khan, A.P.P. for the respondent.
.....
CORAM : PUSHPA V. GANEDIWALA, J.
ARGUMENTS WERE HEARD ON : JANUARY 18, 2021
JUDGMENT IS PRONOUNCED ON : FEBRUARY 24, 2021
JUDGMENT :
The challenge in this appeal under Section 351 of the
Code of Criminal Procedure (hereinafter to be referred as the
"Code") is to the judgment dated 30/06/2008 in Misc. Criminal
Application No. 135/2008 arose out of the Sessions Trial No.
34/2007 (State Vs. Santosh) by the Adhoc Additional Sessions
Judge, Pusad, whereby the appellant was tried summarily and
convicted for the offence of 'perjury' under Section 344 of the Code,
and is sentenced to suffer simple imprisonment for three months
and to pay fine of Rs.200/- (rupees two hundred only), in default of
payment of fine, to suffer simple imprisonment for 15 days.
2. Brief facts leading to the present appeal are as under :
i. On 08/03/2007, the appellant lodged a report at
the Police Station, Pusad, stating therein that the
accused, i.e., his brother, committed murder of
deceased Kiran (sister in law of the accused and the
appellant) with an 'axe'. Crime No. 58/2007 came to be
registered against the accused, and after investigation,
the charge sheet came to be filed, and the case was
committed to the Sessions Court, Pusad. It was tried
as Sessions Trial No. 34/2007, which resulted into
acquittal of the accused mainly on the ground that the
star witness, i.e., the appellant, who was the informant
and the sole eye-witness to the alleged murder, turned
hostile.
ii. In the judgment, the learned trial Court observed
that the appellant had intentionally given false evidence
to save his brother from the charge of murder. The
learned trial Court, in the said judgment, also recorded
its satisfaction that it is necessary that the appellant
should be tried summarily for giving false evidence. The
learned trial Court took cognizance of the offence of
perjury, and issued a show cause notice and summons
to the appellant as to why he should not be punished
for giving false evidence under Section 344 of the Code.
3. In response to the show cause notice and the summons,
the appellant appeared before the Court and submitted his written
explanation stating therein that due to police pressure and threats
of involving himself in the offence of murder, he has stated so before
the Police and the Magistrate. The learned trial Court found it
unreliable and proceeded for summary trial. The learned Court
filled up the summary sheet and explained the particulars of the
offence to the appellant to which he pleaded not guilty. The learned
trial Court recorded his plea, and after hearing the counsel
appearing on behalf of the appellant, convicted the appellant for the
offence of perjury and sentenced him as above. This judgment is
impugned in the present appeal.
4. Shri Shukla, learned counsel appearing on behalf of the
appellant, mainly argued on the following three points :
a. The learned trial Court, while delivering
judgment, failed to record the substance of evidence,
which is mandatory in a summary trial if the accused
pleads not guilty.
b. The learned trial Court failed to give an
opportunity to the appellant to prove his defence.
c. The learned trial Court failed to record the
finding with regard to which of the statements of the
appellant was false.
5. As against this, Shri Khan, learned A.P.P. appearing on
behalf of the State, while supporting the impugned judgment of the
trial Court submitted that the trial Court has followed due
procedure as contemplated in law. The learned A.P.P. urged for
dismissal of the appeal.
6. I have considered the submissions on behalf of both the
sides, and perused the record.
7. Without going into the merits of the case, first and
foremost, it is necessary to examine as to whether the learned trial
Court has followed the procedure as contemplated in law for
convicting the appellant under Section 344 of the Code, and
whether any prejudice is caused to the appellant if the same is not
followed. For ready reference, Section 344 of the Code is
reproduced below :
"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.
(2) XXXX
(3) XXXX
(4) XXXX"
8. A bare perusal of the aforesaid provision would at once
reflect that for initiating proceedings under Section 344 of the Code,
the following course has to be adopted :
i. While delivering a judgment or passing a final
order, the Court (Court of Sessions or Judicial
Magistrate First Class) has to express an opinion to the
effect
a. that the witness had knowingly or willfully
given false evidence or had fabricated false
evidence;
b. that such false evidence was given with the
intention that such evidence should be used in
such proceedings;
c. that it is necessary and expedient in the
interest of justice that the witness should be tried
summarily.
ii. Then, the Court shall issue a show cause to the
witness as to why he should not be punished for the
offence of 'perjury'.
iii. In case, the Court does not satisfy with the
explanation of the offender, the Court may thereafter
try such offender summarily, and if the offender is
found guilty, sentence him as prescribed in Section 344
of the Code itself.
9. The Hon'ble Apex Court in the case of Mahila Vinod
Kumari Vs. State of M.P., reported in 2009(1) Mh.L.J. (Cri.) 261, a
landmark judgment of the Hon'ble Apex Court on Section 344 of the
Code, reiterated the conditions as mandated in Section 344 of the
Code. The relevant para 8 in the said judgment reads thus :
"8. For exercising the powers under the section the Court at
the time of delivery of judgment or final order must at the
first instance express an opinion to the effect that the
witness before it has either intentionally given false
evidence or fabricated such evidence. The second condition
is that the Court must come to the conclusion that in the
interest of justice the witness concerned should be punished
summarily by it for the offence which appears to have been
committed by the witness. And the third condition is that
before commencing the summary trial for punishment the
witness must be given reasonable opportunity of showing
cause why he should not be so punished. All these
conditions are mandatory. [See Narayanswamy vs. State of
Maharashtra, (1971) 2 SCC 182]."
10. The Single Bench of this Court in the case of Sanjay S/o
Baburao Gitte Vs. The State of Maharashtra (Criminal Appeal No.
307/2016 decided on 05/05/2017) emphasised on the point as to
when the proceedings under Section 344 of the Code has to be
launched. In this judgment, the learned Single Judge made it clear
that for initiating proceeding under Section 344 of the Code, mere
giving of false evidence is not sufficient as in judicial proceedings,
many a times the Court would come across witnesses making con-
trary statements. The Court further cautioned that it is only when
the Court is of the opinion that a witness has "willfully or intention-
ally" given false evidence and the Court considers that action
against such person is necessary in the interest of justice then only
such action is contemplated. For ready reference, the relevant para
of the said judgment reads thus :
"16. For initiating proceeding u/s 344 of Cr.P.C. and punish-
ing person u/s 193 of Cr.P.C. mere giving false evidence is
not sufficient. There are many instances in judicial proceed-
ings when Court would come across witnesses making con-
trary statements. It would not be advisable nor feasible to
lodge proceeding against all such witnesses. It is only when
the Court is of the opinion that a witness has "willfully or in-
tentionally" given false evidence and the Court considers
that action against such person is necessary in the interest
of justice then only such action is contemplated. As dis-
cussed, admission given by the appellant that certain facts
deposed by him in his examination in chief were not correct
and deceased had no ill treatment and harassment, cannot
be treated as intentional act of the accused to depose
falsely."
11. The object of Section 344 of the Code is to facilitate
expeditious trial of offences of giving or fabricating false evidence
which come to the notice of the Court at the time of delivery of any
judgment or final order. Section 344 of the Code provides an
additional mode of trying and punishing offenders for giving or
fabricating false evidence and where the Court considers that it is
likely to raise complicated questions or the act otherwise deserve
more serious punishment or where action is considered expedient
even before the trial reaches the stage of judgment or final order it
is open to the Court to direct initiation of proceedings under the
ordinary provisions contained in the Code.
12. The procedure as contemplated under Section 344 of
the Code is summary trial. In summary trial, as per Section 262 of
the Code, the procedure for the trial of summons case shall be
followed. Accordingly, when the accused appears or is brought
before the Court, the particulars of the offence shall be stated to the
accused, and he shall be asked whether he pleads guilty or has any
defence to make. If the accused pleads guilty, the Court shall record
the plea, as nearly as possible, in the words used by the accused and
may, in its discretion, convict him/her thereon. In case, the accused
does not plead guilty, then as per Section 264 of the Code in every
case tried summarily, the Court shall record the substance of the
evidence, and thereafter a judgment containing a brief statement of
the reasons for the finding.
13. Now coming back to the facts of the present case, in
this case, it is the grievance of the appellant/accused that even
though he had pleaded not guilty, the learned trial Court, without
recording the substance of evidence, as mandated under Section
264 of the Code, straight away passed the judgment of conviction. A
perusal of the record, especially the impugned judgment, would
reflect that after reading over the particulars of the offence to the
appellant/accused, the trial Court recorded the plea of the
appellant/accused. The appellant/accused pleaded not guilty of the
offence. The learned trial Court thereafter straight away passed the
judgment of conviction against the appellant/accused. For ready
reference, Section 264 of the Code is reproduced below :
"264. Judgment in cases tried summarily. - In every case
tried summarily in which the accused does not plead guilty,
the Magistrate shall record the substance of the evidence
and a judgment containing a brief statement of the reasons
for the finding."
14. With regard to necessity of recording of the substance
of evidence separately during summary trial, the Division Bench of
this Court in the case of Krishna Nayar Ram Nayar Vs. State,
reported in (1959) 61 Bom. L.R. 684, has observed thus :
"XXXX the substance of the evidence is to be recorded at the
time when the evidence is given in Court. To embody the
substance of the evidence in a judgment from memory or
from short notes made at the time when evidence was given
does not amount to compliance with s. 264. XXXX"
15. This Court way back in the year 1928 in the case of
Emperor Vs. Nurudin Sheikh Adam, reported in (1928) 30 Bom.
L.R. 954, held that failure to observe the condition prescribed by S.
264 prejudices the accused, so also it is necessary for the appellate
Court to decide the appeal. The relevant para of the judgment reads
thus :
"We think, however, that the failure of the Bench to observe
the condition prescribed by s. 264 is one that did, in fact,
prejudice the accused, because it prevents the proper
disposal of the appeal that he was entitled to make. The
appellate Court should know the substance of the evidence
that had been given, so as to be in a position to decide the
appeal on the merits, and it is not proper to decide the
appeal in the way the District Magistrate has done."
16. In the case of Mahila Vinod Kumari (supra), the
appellant, a victim of rape, had admitted before the trial Court that
she had lodged a false case against the accused. In that case, the
trial Court directly recorded her conviction without recording
substance of evidence after following the other necessary
requirements, and the Hon'ble Apex Court confirmed her conviction
under Section 344 of the Code.
17. In the case in hand, the appellant never admitted that
he gave the false statements. In such a case, it was necessary for the
trial Court to give him an opportunity to prove his defence. The
learned trial Court recorded the finding that the diagonally opposite
statements of the appellant on oath, i.e., the statement which was
recorded under Section 164 of the Code and the evidence before the
Court, one of them must have been false, and therefore, the
appellant is liable for the offence of perjury. However, in light of the
above discussion, such a course could not have been adopted. The
order passed under section 344 is appealable under Section 451 of
the Code. In fact, the appellant is before this Court in appeal. In the
absence of substance of evidence on record, it is difficult for this
Court to comprehend any case against the appellant.
18. In view of the ratio in the case of Emperor V/s Nurudin
(supra), the procedural irregularity in this case has caused prejudice
to the appellant. A conviction resulting from an unfair trial is
contrary to our concept of justice. This Court would not have
directed re-trial, however, considering the fact that the appellant
was the sole eye-witness to the incident, and at his instance, the FIR
came to be lodged, and during trial, he resiled from his earlier
statement recorded under Sections 161 and 164 of the Code, which
certainly has an adverse impact upon the administration of justice.
Therefore, it is necessary and expedient in the interest of justice to
deal with such witness in accordance with law. The Division Bench
of this Court recently in the case of Saraswati w/o Ganpat Landge
Vs. The State of Maharashtra (Criminal Appeal No. 40/2015
decided on 19/01/2021) expressed a grave concern and opined that
the trial Courts shall resort to initiate proceedings under Section
344 of the Code in appropriate cases.
19. In the conspectus of the above discussion, re-trial from
the stage of recording of substance of evidence is necessary.
However, the gesture exhibited and the efforts put in by the learned
trial Court in initiating proceedings under Section 344 of the Code
deserves appreciation.
20. In such circumstances, this Court is inclined to allow
the appeal in part and proceed to pass the following order :
ORDER
i. The Criminal Appeal is partly allowed.
ii. The judgment dated 30/06/2008 in Misc. Criminal
Application No. 135/2008 is quashed and set aside. The conviction
of the appellant is set aside.
iii. The matter is remanded back to the trial Court for re-
trial from the stage of recording of substance of evidence.
iv. The trial Court to decide the case on its own merits
without being influenced by any of the observations noted above.
v. The parties to appear before the trial Court on 15/04/2021.
(JUDGE)
Sumit
