Dwarka Prasad S/O Bhikhlal and ors. Vs. State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/505673
SubjectCriminal
CourtMadhya Pradesh High Court
Decided OnOct-24-1991
Case NumberCri. Appeal No. 983 of 1985
JudgeP.N.S. Chouhan, J.
Reported in1992(0)MPLJ187
ActsCode of Criminal Procedure (CrPC) , 1974 - Sections 344
AppellantDwarka Prasad S/O Bhikhlal and ors.
RespondentState of Madhya Pradesh
Appellant AdvocateS.L. Kochar, Adv.
Respondent AdvocateNeena Khera, Adv.
DispositionPetition allowed
Cases ReferredMohammad Ibrahim v. B. Rama Rao
Excerpt:
- - in such circumstances the grievance of material prejudice having been caused due to defect in the show cause notices cannot be said to be well founded.p.n.s. chouhan, j.1. halakram and three others were tried on charge of murder and allied offences in sessions trial no. 8/1981 by additional sessions judge, seoni, who while acquitting the accused vide judgment dated 30-3-1981 considered an application filed by the govt. advocate under section 344 criminal procedure code and directed appellants' prosecution for perjury on the ground that their exculpatory evidence during the trial being contradictory to their incriminating statements recorded under section 164, criminal procedure code, they had given false evidence either in the trial or before the magistrate who recorded their statement under section 164 criminal procedure code. accordingly, they were summarily tried under section 344, criminal procedure code in misc. criminal case no. 3/ 1985 and on conviction sentenced to 3 months r. i. each which is under challenge in this appeal.2. the impugned finding is assailed on the ground that under section 344, criminal procedure code, the judge was obliged to have come to a finding that the evidence given before him was false and that the same was given deliberately and intentionally by the appellants. reliance was placed on the following placitum of pydi lakshmanna v. duppala krishnamurthy, air 1969 a.p. 415 :'the complaint of the court, if it is submitted under section 479-a must necessarily mention which of the two contradictory statements is false. these words have been used by the legislature obviously to guard the interests of the accused so that he may not be prejudiced in his defence. it may be noted that these words were not used either in section 476 or section 479, criminal procedure code, and when they are used in section 479-a, criminal procedure code, it only means that the legislature has introduced those words with a purpose.'3. the judge was further obliged to have come to the conclusion that for the eradication of the evils of perjury and in the interest of justice, it was expedient that the witness should be prosecuted for the offence which appeared to have been committed by him. in support of this argument, mohammad ibrahim v. b. rama rao, air 1976 sc 1822, was cited wherein it has been held-:'under section 479-a, criminal procedure code not only is it necessary that the court must form the opinion that the witness had intentionally given false evidence, but it is further necessary that the court must come to the conclusion that for the eradication of the evils of perjury and in the interests of justice it is expedient that the witness should be prosecuted for the offence which appears to have been committed by him.'4. thus, it is clear that recording of opinion that the witness gave false evidence intentionally and that it was necessary to prosecute him are essential ingredients of section 344, criminal procedure code and in absence of such opinion being recorded the court does not get jurisdiction ,to launch the prosecution. since these infirmities are conspicuous in this case, the impugned conviction deserves to be set aside.5. the learned counsel highlighted that the show cause notices issued to the appellants do not set out the gist of the offence against which they were called upon to show cause and this infirmity resulted' in material prejudice to the appellant sentitling them to an acquittal. infirmity in the show cause notice will have no decisive impact on the trial because the appellants did appear in response there to and gave their version which was not found satisfactory and the trial followed in which the appellants had full opportunity to defend themselves. as such it cannot be inferred that had the ingredients of the offence been fully given in the notice, they could have said something which would have persuaded the court to drop the proceedings. in such circumstances the grievance of material prejudice having been caused due to defect in the show cause notices cannot be said to be well founded.6. it was then argued that the particulars of offence explained to the appellants are incomplete as the same do not indicate which of the two contradictory statements was considered false which substantially prejudiced the defence and vitiated the trial. as observed above, this infirmity rendered appellants' prosecution under section 344, criminal procedure code, itself unsustainable and therefore their convictions must necessarily be set aside.7. in view of the forgoing, it is not necessary to discuss as to whether as contended by appellants' learned counsel, the recording of statements under section 164, criminal procedure code does not amount to judicial proceedings.8. in result, the appeal is allowed. appellants' conviction under section 344, criminal procedure code and sentence of 3 months r. i each are here by set aside and they are acquitted. appellants are on bail and their bail bonds are cancelled.
Judgment:

P.N.S. Chouhan, J.

1. Halakram and three others were tried on charge of murder and allied offences in Sessions Trial No. 8/1981 by Additional Sessions Judge, Seoni, who while acquitting the accused vide judgment dated 30-3-1981 considered an application filed by the Govt. Advocate under Section 344 Criminal Procedure Code and directed appellants' prosecution for perjury on the ground that their exculpatory evidence during the trial being contradictory to their incriminating statements recorded under Section 164, Criminal Procedure Code, they had given false evidence either in the trial or before the magistrate who recorded their statement under Section 164 Criminal Procedure Code. Accordingly, they were summarily tried under Section 344, Criminal Procedure Code in Misc. Criminal Case No. 3/ 1985 and on conviction sentenced to 3 months R. I. each which is under challenge in this appeal.

2. The impugned finding is assailed on the ground that under Section 344, Criminal Procedure Code, the judge was obliged to have come to a finding that the evidence given before him was false and that the same was given deliberately and intentionally by the appellants. Reliance was placed on the following placitum of Pydi Lakshmanna v. Duppala Krishnamurthy, AIR 1969 A.P. 415 :

'The complaint of the Court, if it is submitted under Section 479-A must necessarily mention which of the two contradictory statements is false. These words have been used by the Legislature obviously to guard the interests of the accused so that he may not be prejudiced in his defence. It may be noted that these words were not used either in Section 476 or Section 479, Criminal Procedure Code, and when they are used in Section 479-A, Criminal Procedure Code, it only means that the Legislature has introduced those words with a purpose.'

3. The judge was further obliged to have come to the conclusion that for the eradication of the evils of perjury and in the interest of justice, it was expedient that the witness should be prosecuted for the offence which appeared to have been committed by him. In support of this argument, Mohammad Ibrahim v. B. Rama Rao, AIR 1976 SC 1822, was cited wherein it has been held-:

'Under Section 479-A, Criminal Procedure Code not only is it necessary that the court must form the opinion that the witness had intentionally given false evidence, but it is further necessary that the court must come to the conclusion that for the eradication of the evils of perjury and in the interests of justice it is expedient that the witness should be prosecuted for the offence which appears to have been committed by him.'

4. Thus, it is clear that recording of opinion that the witness gave false evidence intentionally and that it was necessary to prosecute him are essential ingredients of Section 344, Criminal Procedure Code and in absence of such opinion being recorded the court does not get jurisdiction ,to launch the prosecution. Since these infirmities are conspicuous in this case, the impugned conviction deserves to be set aside.

5. The learned counsel highlighted that the show cause notices issued to the appellants do not set out the gist of the offence against which they were called upon to show cause and this infirmity resulted' in material prejudice to the appellant sentitling them to an acquittal. Infirmity in the show cause notice will have no decisive impact on the trial because the appellants did appear in response there to and gave their version which was not found satisfactory and the trial followed in which the appellants had full opportunity to defend themselves. As such it cannot be inferred that had the ingredients of the offence been fully given in the notice, they could have said something which would have persuaded the court to drop the proceedings. In such circumstances the grievance of material prejudice having been caused due to defect in the show cause notices cannot be said to be well founded.

6. It was then argued that the particulars of offence explained to the appellants are incomplete as the same do not indicate which of the two contradictory statements was considered false which substantially prejudiced the defence and vitiated the trial. As observed above, this infirmity rendered appellants' prosecution under Section 344, Criminal Procedure Code, itself unsustainable and therefore their convictions must necessarily be set aside.

7. In view of the forgoing, it is not necessary to discuss as to whether as contended by appellants' learned counsel, the recording of statements under Section 164, Criminal Procedure Code does not amount to judicial proceedings.

8. In result, the appeal is allowed. Appellants' conviction under Section 344, Criminal Procedure Code and sentence of 3 months R. I each are here by set aside and they are acquitted. Appellants are on bail and their bail bonds are cancelled.