Madhya Pradesh High Court
Larati @ Ladati vs The State Of Madhya Pradesh on 16 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 16th OF MAY, 2024
MISC. CRIMINAL CASE No. 3757 of 2017
BETWEEN:-
LARATI @ LADATI D/O SHRI RAM NATH
SAPERA, AGED 21 YEARS, R/O BAHADURGARH
P.S. RADHOGARH, DISTRICT GUNA (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI SHOBENDRA KUMAR TIWARI- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION RAGHOGARH, DISTRICT
GUNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI LOKENDRA SINGH TOMAR- GOVRNMENT ADVOCATE)
This application coming on for hearing this day, the court passed
the following:
ORDER
1. Upon allegation of commission of rape, Police Raghogarh
registered the case and filed charge-sheet in connection with Crime
No.387/2012 under Sections 363, 366, 376(1), 342 of IPC and Sections 3
(2) (v) of the SC/ST (Prevention of Atrocities),Act against Kalyan Meena
S/o Gappalal registered as Criminal Case No.1145/2012 before the Court
of Special Judge (SC/ST) Act Guna and registered as Special Sessions
Case No.06/2013.
2. Allegations were levelled against the accused on the basis of the
statement of petitioner recorded during investigation wherein she levelled
the allegation that in the intervening night of 11-12 th December, 2012, she
was sleeping at her home and Kalyan Meena called her on her mobile and
abducted her on the false pretext of marriage and thereafter committed
rape against her wish.
3. When the petitioner appeared before the Special Judge, she turned
hostile and did not support the prosecution's case to the extent that accuse
committed rape with her. Consequently, by order dated 21.02.2013 passed
under Section 232 of the Cr.P.C., the court acquitted Kalyan Meena and
ordered to forward the complaint against the petitioner for her
prosecution.
4. Upon receipt of the complaint under Section 340 of the Cr.P.C.
from the Special Judge (SC/ST Act, Guna), CJM Guna registered
criminal case No.2413/2016 against the present petitioner under Section
182 r/w Section 191, 193 (III) of the IPC. Order of registration of the said
case is challenged by the petitioner in the present case on the ground that
before referring the complaint to CJM, Guna, learned Special Judge
(SC/ST, Guna) has not recorded the finding to the effect that prima facie,
it appears that the offence has been committed.
5. Heard learned counsels for the parties for final disposal of the case.
6. Learned counsel for petitioner submitted that before initiating
action against the petitioner purportedly under Section 344 of the Cr.P.C.,
no findings have been recorded by the trial court in respect of alleged
false/fabricated evidence knowingly or willfully given by the petitioner.
Similarly, opportunity of showing cause has also been denied in the
present case and therefore, the order of taking cognizance against the
petitioner is liable to be quashed. Learned counsel for petitioner placed
reliance over the judgment delivered in the case of Iqbal Singh Marwah
Vs. Meenakshi Marwah, (2005) SCC (Criminal) 1109 whereby learned
Apex Court has held that the penal provisions should be strictly
construed. He relied on the paragraph 29, which reads as under-
29. Dr. Singhvi has also urged that since we are
dealing with a penal provision it should be strictly
construed and in support of his proposition he has
placed reliance upon a Constitution Bench decision in
Tolaram Relumal vs. State of Bombay, 1955(1) SCR
158, wherein it was held that it is well settled rule of
construction of penal statutes that if two possible and
reasonable constructions can be put upon a penal
provision, the Court must lean towards that
construction which exempts the subject from penalty
rather than the one which imposes penalty and it is not
competent for the Court to stretch out the meaning of
expression used by the legislature in order to carry out
the intention of the legislature. The contention is that
since Section 195(1)(b)(ii) affords protection from
private prosecution, it should not be given a restrictive
interpretation to curtail its scope. We are unable to
accept such broad proposition as has been sought to
be urged. In Craies on Statute Law (1971 edn.
Chapter 21), the principle regarding penal provisions
has been stated as under :
"But penal statutes must never be construed so
as to narrow the words of the statute to the
exclusion of cases which those words in their
ordinary acceptations would comprehend. . But
where the thing is brought within the words and
within the spirit, there a penal enactment is to be
construed, like any other instrument, according
to the fair commonsense meaning of the
language used, and the court is not to find or
make any doubt or ambiguity in the language of
a penal statute, where such doubt or ambiguity
would clearly not be found or made in the same
language in any other instrument."
7. He further relied on the judgment delivered by Co-ordinate Bench
of this Court in the case of Meera Bai and another Vs. State of M.P.
2010 Cr.L.R. (M.P.) 219 wherein, dealing with the case of alleged false
evidence, it is held by this Court that prima facie, the finding should be
recorded that the case is of deliberate falsehood and the court is satisfied
that there is reasonable foundation for the charge. He relied on the
paragraphs 11 and 12 of the judgment, which reads as under:-
11. On perusal of the record, I find that
except recording the finding that the prosecution
witnesses (appellants) gave false evidence, trial
Court did not go into the question whether it was
expedient that they should be prosecuted. The
equiry as contemplated in Section 340 of the Code
of Criminal Procedure is an enquiry by the trial
Court itself for reassuring that the offence which
appears to have been committed is in or in
relation to the proceeding in that Court.
Recording a finding by the trial Court regarding
commission of the offence is a condition
precedent to the prosecution. Some times, in may
cases, lack of trustfulness may be noticed in the
evidence of witnesses, but it would not call for
their prosecution in all the cases. It must be a
prima facie case of deliberate falsehood and the
Court must be satisfied that there is reasonable
foundation for the charge.
12. In my opinion, in the instant case, since
the trial Court did no keep in mind the aforesaid
aspect of the matter, filling of complaint was not
called for.
8. On the strength of the above pronouncements of Apex Court and
Co-ordinate Bench of this Court, learned counsel for petitioner prayed for
quashment of the criminal proceedings initiated against the petitioner on
the basis of the complaint forwarded by the Special Judge (SC/ST Act),
Guna, upon the allegations of giving false evidence against the accused
therein.
9. Learned Government Advocate for respondent/State supported the
impugned order of taking cognizance and submitted that no case of
interference is made out. On the basis of statement recorded during
investigation, charge-sheet was filed and Kalyan Meena was prosecuted
wherein, the petitioner turned hostile and denied the allegations of
commission of rape and consequently, accused was acquitted and it is
proved that the petitioner had given false statement before the court. He
further submitted that in the given facts and circumstances, no lenient
view can be taken.
10. Considered the arguments advanced by the rival parties and
perused the documents available on record. It appears that father of the
petitioner had lodged missing person report and simply stated that her
daughter (present petitioner) was missing since last night. However, after
recovery of the petitioner, during inquiry of missing person report, the
statement of petitioner was recorded wherein she alleged that Kalyan
Meena committed rape with her. She was undergone medical examination
also and thereafter crime was registered and after investigation, charge-
sheet was filed.
11. Report was not lodged by the petitioner and only her statements
were recorded by the police officers, therefore, it cannot be accepted that
she has falsely stated during the trial.
12. Under Section 344 of the Cr.P.C., before proceeding against any
witness, it is essential for the court to express its opinion that the witness,
who appeared and deposed in the court, had knowingly and willfully gave
the false evidence and fabricated the false evidence with the intention that
such evidence should be used in such proceedings . No such satisfaction
has been recorded by the Special Judge (SC/ST, Act), Guna. Section 344
(1) of the Cr.P.C. reads as under:-
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.
13. It appears that no statement under Section 164 of the Cr.P.C. was
recorded during investigation and statement of the petitioner was
recorded under Section 161 of the Cr.P.C. only. Statement recorded under
Section 161 of the Cr.P.C. are not admissible in evidence and can be used
only for the purpose of contradiction and omission in view of the
provisions of Section 162 of the Cr.P.C meaning thereby that statement
recorded under Section 161 of the Cr.P.C. cannot be relied upon as the
statement given by the petitioner during investigation. FIR was also not
lodged by the petitioner. There was nothing to say that actually the
petitioner had stated before the investigating officer that she was
subjected to rape and therefore, in the absence of material on record, only
on the basis of not supporting the prosecution case by the petitioner, it
cannot be accepted that she had given false evidence in the court.
Moreover, the Special Judge (SC/ST Act), Guna has not recorded
satisfaction that it is a case wherein the witness has knowingly or
willfully gave false evidence or fabricated false evidence with the
intention that such evidence should be used in such proceedings and
without recording satisfaction, the prosecution of witness for giving
evidence is not permissible in accordance with Section 344 (1) of the
Cr.P.C.
14. Judgment relied by the learned counsel for petitioner delivered in
the matter of Iqbal Singh Marwah (supra) is in respect of preparation of
forged documents and therefore, the same is not directly applicable to the
controversy in hand, however, judgment delivered by the Co-ordinate
Bench of this Court in the case of Meerabai (supra) is applicable to the
present case. In that case, the court has acquitted the accused persons
though the prosecutrix deposed in the court who stated that she was
subjected to rape but in view of the Sessions Court, she had given the
false evidence and therefore, the matter was referred to the Magistrate for
initiating proceedings against her for the offences punishable under
Sections 195, 211 of IPC. In the present matter, no satisfaction has been
recorded and even the report was not lodged by the petitioner, therefore, it
cannot be accepted that the prosecutrix had given false and fabricated
evidence in the court.
15. Consequently, the present petition is allowed. Impugned order
passed dated 23.09.2016 passed by Chief Judicial Magistrate is hereby set
aside. The proceedings initiated against the petitioner are hereby
quashed.
(VINAY SARAF)
JUDGE
vishal
VISHAL
UPADHYAY
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UPADHYAY
Date: 2024.05.17 18:45:02 +05'30'
