Allowed

Manoj Kumar Bajpai v. State of U.P. and Another

Allahabad HC2 Apr 2019A482/8006/1997

Case brief

AI extract

What is this about?

This application sought quashing of an order initiating proceedings for perjury under Section 193 I.P.C. via Section 344 Cr.P.C. The court held the trial court erred in taking cognizance before the judicial proceedings concluded and without giving a reasonable opportunity to show cause. The prosecution and order were quashed, and the matter remanded to pass a fresh order.

What did the court decide?

The impugned order dated 28.7.1997 and prosecution under Section 193 I.P.C. are quashed; matter remanded for fresh order.

Manoj Kumar Bajpai Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2019)

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Court No. - 17.

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Case :- APPLICATION U/S 482 No. - 8006 of 1997

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Applicant :- Manoj Kumar Bajpai. Opposite Party :- State Of U.P. And Another. Counsel for Applicant :- D.P.Singh,Prabhat Kumar,Siddharth Niranjan. Counsel for Opposite Party :- A.G.A..

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Hon'ble Suresh Kumar Gupta,J.

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This application has been filed with a prayer for quashing the order dated 28.7.1997 passed by the learned Special Judge (D.A.A.) Jalaun at Orai in Misc. Case No. 51 of 1997 arising out of Sessions Trial No. 97 of 1991 and also quash the prosecution of the applicant for offence under Section 193 I.P.C. in exercise of power under Section 344 Cr.P.C..

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Heard learned counsel for the applicant and leaned A.G.A. as well as perused the record.

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The brief facts of the case is that applicant was examined as P.W. 1 firstly on 6.12.1996. Initially, he support the prosecution version and thereafter on 28.7.1997 he clearly denied the previous statement during the trial before the learned Special Judge, Dacoity Affected Area..

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On 28.7.1997 learned Special Judge passed the order holding that a prima facie case an offence of perjury under Section 193 I.P.C. is made out against the applicant and learned Special Judge has passed the following order:-

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"(1) Applicant be taken into custody so that matter be enquired and trial in accordance with law:

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(2) Put up on 13.8.1997 for rest evidence of case and enquiry and trial of Manoj Kumar Bajpai."

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Above orders of the learned Special Judge has been annexed as Annexure-2 to this application.

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The applicant filed a recall application for recall the order of taking cognizance under Section 193 I.P.C. before the learned Special Judge Court but learned trial court did not recall the order dated 28.7.1997 but a separate case as Misc. Case No. 51 of 1997 was registered against the applicant.

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The impugned order was passed by the learned Special Judge for taking cognizance under Section 193 I.P.C. and initiated proceedings against the applicant under Section 344 Cr.P.C.

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Learned counsel for the applicant states that learned Special Judge has started proceedings against the applicant without applying the procedure under Section 344 Cr.P.C. because power under Section 344 Cr.P.C. can be exercised at the time of delivery of any judgment or final order disposing of any judicial

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proceeding. Learned counsel for the applicant has therefore requested to quash the order 28.7.1997 for taking cognizance under Section 193 I.P.C. against the applicant in exercise of power under Section 344 Cr.P.C.

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The summary procedure of trial has been defined in Section 344 of the Code of Criminal Procedure. The provisions of Section 344 Cr.P.C. reads as under:-

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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.

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2. In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

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3. Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section.

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4. Where, after any action is initiated under Sub-Section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that Sub-Section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.

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On perusal of the provisions of the Section 344 Cr.P.C. it is clear that trial court can exercise its power under Section 344 Cr.P.C. at the time of delivery of any judgment or final order disposing of any judicial proceeding. In the present case learned Special Judge has taken cognizance suo motu without considering the application furnished by the Public Prosecutor although the Sessions Court has a power to take cognizance under Section 344 Cr.P.C. for perjury i.e. giving false evidence suo motu but this power can be exercised at the time of delivery of any judgment or final order disposing of any judicial proceeding but in the instant case learned Special Judge has passed the order on the same date on 28.7.1997 i.e. the date of examination of P.W. -1,Manoj Kumar Bajpai, (applicant) this power can be exercised only after the conclusion of the judicial proceedings or at the end of the proceedings. If the Judge or Magistrate is satisfied that witness has knowingly or wilfully given false evidence with the intention that such evidence should be used in such proceedings. Before commencing the summary

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trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be punished. So the submission of the learned counsel for the applicant has substance and is liable to be accepted..

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The impugned order dated 28.7.1997 and prosecution against the applicant for perjury under Section 344 Cr.P.C. is quashed. This matter is remanded back to the court below concerned to pass a fresh order of cognizance in accordance with law and also directed to use the power under Section 344 Cr.P.C. in proper perspective..

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With the aforesaid observations/directions, the application is, accordingly, disposed of..

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Order Date :- 2.4.2019.. A. Pt. Singh.

Manoj Kumar Bajpai v. State of U.P. and Another

Case brief

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Manoj Kumar Bajpai v. State of U.P. and Another

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