D. R. Thakur vs State Of Chhattisgarh
2023 Latest Caselaw 1031 Chatt

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                                                                                               AFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                         CRMP No. 1119 of 2014
     • D. R. Thakur S/o Late Shri Johan Thakur, aged about 55 years,
       Tahsildar and Executive Magistrate, Pandariya, Distt. Kabirdham C.G.,
       Chhattisgarh                                            --- Petitioner

                                              Versus

     • State Of Chhattisgarh through District Magistrate, Kabirdham, Distt.
       Kabirdham C.G., Chhattisgarh                        --- Respondent
                                    CAUSE TITLE TAKEN FROM CIS PERIPHERY
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         For Petitioner                      :        Mr. C.B. Kesharwani, Adv.
         For Respondent/State                :        Mr. Ashish Gupta, PL.

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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 17.02.2023

1. This petition under Section 482 of the Code of Criminal Procedure,

1973 (for short "Cr.P.C.") has been filed against the order dated 07.10.2014

passed by Additional Sessions Judge, Kabirdham passed in Criminal

Revision No.30/2013 upholding the order, of Judicial Magistrate First Class,

Kabirdham passed in Criminal Case No.509/2012 (State of Chattisgarh Vs.

Shivsahay) passed on 04.09.2013, whereby learned Magistrate while

acquitting the accused Shiv Sahay from offence under Section 411 IPC

simultaneously took cognizance against the present petitioner, who was the

prosecution witness No.2 in that case and directed to initiate criminal

proceedings for the offence under Section 344 IPC for giving false evidence.

2. Facts of the case, in brief, is that the petitioner is a Government

servant working as Executive Magistrate cum Tahsildar at Pandariya, District

Kabirdham. While performing his duties, petitioner prepared identification

memo on 23.08.2012 of the seized property i.e. iron rods in respect of

Criminal Case No.509/2012, whereby the accused in that case namely Shiv

Sahay was charged for the offence under Section 411 IPC for purchasing 75

KG stolen iron rods. The said iron rods were duly identified by complainant

namely Ritesh Singh by the size of the iron rods which was mentioned in the

invoice of seized iron rods as 8 mm. However, the petitioner while deposing

his statement in Criminal Case No.509/2012 as PW-2 stated in the chief-

examination that the complainant has identified the said iron rods on the

basis of the marks available on the rods. Thereafter, learned Magistrate while

passing the judgment dated 04.09.2013, observed that the petitioner has

deposed the statement contrary to the identification memo and stated that the

complainant has not clearly identified such rods on the basis of any marks.

So on the basis of such evidence, while passing the judgment of acquittal

against the accused, learned Magistrate directed to initiate criminal

proceedings against the present petitioner under Section 344 of IPC for giving

false evidence. Thereafter, the petitioner challenged the same before the

Revisional Court, which has been dismissed by the impugned order. Hence,

this petition has been filed.

3. Learned counsel for the petitioner submits that the petitioner has

prepared identification memo on 23.08.2012 and he was examined after more

than six months i.e. on 28.02.2013 so there is every possibility that the

petitioner might have forgotten the contents of identification memo and even if

there was any discrepancy in the statement, then the Public Prosecutor

should have refreshed the memory of the petitioner in view of Section 159 of

Indian Evidence Act, 1872, but no suggestion was given at the time of

examination. However, learned Magistrate, without considering that in the

entire evidence, there is no mens rea of the petitioner in giving false evidence

and that the petitioner is Executive Magistrate cum Tahsildar and while doing

his official duties, such discrepancy occurred, passed the order of cognizance

against the petitioner, which is not justifiable. Hence, he prays to quash the

criminal proceedings initiated against the petitioner by learned Magistrate and

to set aside impugned order.

4. On the other hand, learned State counsel would support the impugned

orders and oppose the submission made by counsel for the petitioner.

5. Heard learned counsel for the parties and perused the documents

annexed with the petition carefully.

6. Chapter 36 of the Cr.P.C. provides provisions with regard to the

offences effecting the administration of justice and to preserve its decorum

and to maintain its dignity. The condition precedent for the exercise of power

under Section 344 of Cr.P.C. requires that the at the time of delivering

judgment or final order the witness appearing before it has knowingly or

willfully given false evidence or has fabricated false evidence with the

intention that such evidence should be used in such proceeding, and that the

Court is satisfied that it is necessary and expedient and in the interest of

justice to try him summarily for such offence. Therefore, mens rea is essential

ingredient to examine real facts and whether the witness had knowingly or

willfully given such evidence.

6. Applying the aforesaid parameters in the instant case, it can be said

that the evidence was given by the petitioner as prosecution witness No.2

before the trial Court on 28.02.2013 to prove the identification memo Ex.P-3.

The petitioner has categorically deposed that the complainant has identified

the iron rods before him and further, in the cross-examination nothing was

brought on record in this regard and even the witness was not declared

hostile by the prosecution. Therefore, only because of some infirmity in the

statement, it cannot be held that the witness knowingly or willfully had given

the false evidence.

7. In view of the aforesaid analysis, thus Court is of the considered

opinion that the criminal proceedings initiated against the petitioner would

amount to abuse of process of law and the same deserves to be quashed.

8. In the result, impugned order dated 07.10.2014 is set aside and

observation and direction made against him in the order dated 04.07.2013 for

taking cognizance against the petitioner under Section 344 Cr.P.C. is hereby

quashed.

8. Accordingly, this petition is allowed to the extent indicated above. A

copy of this order be sent to the concerned Court for necessary compliance.

Sd/-

(Deepak Kumar Tiwari) Judge Ajay