Jammu & Kashmir High Court - Srinagar Bench

Farooq Shafi Zargar vs State Of Jk & Anr on 18 May, 2022

ITEM NO.20.


   IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
                             CRMC No. 481/2018
                         IA Nos. 01/2018, 02/2018.

        Farooq Shafi Zargar.
                                                                 ...Petitioner(s)
              Through:       Mr. Sheikh Mushtaq, Advocate.

                                          VERSUS


        State of JK & Anr.
                                                                ...Respondent(s)
              Through:       Mr. Sajad Ashraf, GA.
CORAM:
                HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                      ORDER

18.05.2022

01. The petitioner in the instant petition has challenged the order dated

20.11.2018, passed by the learned Judicial Magistrate 1st Class (Munsiff

Chadoora) in a case titled "State Vs. Reyaz Ahmad Qadiri & Anr" to the extent that

the learned Judicial Magistrate has directed SHO, Police Station Nowgam, to

02. Heard the learned counsel for the parties and perused the material on

record.

03. It appears that FIR No. 131/2015, for offence u/s 447 and 353 RPC came

to be registered at the instance of the petitioner, which culminated in laying of

the challan before the trial Magistrate against two accused persons, namely,

Reyaz Ahmad and Mohammad Saleem Qureshi. The learned trial court vide the

impugned judgement, acquitted the accused persons but at the same time the trial

court observed that the petitioner/complainant had retracted from his statement

recorded during the investigation of the case, whereafter the following directions

were passed:-

1|Page "The complainant in the instant case is a government employee and on the application machinery of police, prosecution, judiciary was set into motion. He has submitted the preliminary report to the police and after that he has retreated from his statement before the Court. The other witnesses have also retreated from their statement which they deposed from 161 CrPC. Complainant has wasted the time of this Hon'ble Court and as such, I deem it proper that complainant be made accountable for his preliminary report submitted in the police. As such, SHO Nowgam is directed to lodged FIR against complainant under relevant provisions of law. Copy of this order, copy of the preliminary report and copy of the statement of complainant under section 161 Cr. P.C be forwarded to SHO Nowgam for information and compliance. File is accordingly disposed of, be consigned to records after its due completion.

04. The petitioner is aggrieved of the afore quoted directions, as according to

him, it was not open to the learned Magistrate to give directions for registration

of the FIR and if at all learned Magistrate was of the opinion that the petitioner

has given false evidence, he had to resort to the provisions contained in Section

479-A of Jammu and Kashmir CrPC, which is applicable to the instant case.

05. In order to test the merits of the contention of the learned counsel for the

petitioner, it is necessary to notice the provisions contained in Section 479-A

CrPc which reads as under:-

[479-A. Procedure in certain cases of false evidence.--(1) Notwithstanding anything contained in sections 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding, or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect, stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate :

2|Page Provided that where the Court making the complaint is the High Court, the complaint may be signed by such officer of the Court as the Court may appoint.

[x x x] (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200. (3) No appeal shall lie from any finding recorded and complaint made under sub-section (1).

(4) Where, in any case, a complaint has been made under sub-section (1) and appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen, the hearing of the case before the Magistrate to whom the complaint was forwarded or to whom the case may have been transferred shall be adjourned until such appeal is decided; and the Appellate Court, after giving the person against whom the complaint has been made an opportunity of being heard, may, if it so thinks fit, make an order directing the withdrawal of the complaint ; and a copy of such order shall be sent to the Magistrate before whom the hearing of the case is pending.

(5) In any case, where an appeal has been preferred from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said sub-section may be exercised by the Appellate Court makes such complaint, the provisions of sub-section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard.

(6) No proceedings shall be taken under sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this section].

06. From a bare perusal of the aforesaid provision, it is clear that if a criminal

court is of the opinion that any person has intentionally given false evidence in a

judicial proceedings, and that it is expedient that such witness should be

prosecuted for the offence which appears to have been committed by him, the

court after recording a finding to this effect at the time of delivery of the final

judgement, has to give an opportunity of hearing to the concerned witness,

whereafter the court can make a complaint in writing signed by the Presiding

Officer before the Judicial Magistrate 1st Class, having jurisdiction.

07. In the instant case, no such procedure has been followed by the learned

Magistrate but instead of following the procedure prescribed under law, the

learned Magistrate has directed that FIR be registered against the petitioner. The

said course is unknown to law. The learned Magistrate instead of adhering to