Partly allowed

Ramappa S/O. Hanamappa Gadagi v. the Chief Administrative Officer

Karnataka HC19 Dec 2020CRL.RP/2352/2011

Case brief

AI extract

What is this about?

A complainant's deliberate false testimony after retracting his complaint attracted Section 193 IPC. The Court upheld the perjury conviction and refused probation, but partly allowed the revision by reducing simple imprisonment to three months while enhancing the fine and prescribing default imprisonment.

What did the court decide?

Sentence modified to three months' simple imprisonment with an enhanced fine and six months' default imprisonment; conviction upheld.

Ramappa S/O. Hanamappa Gadagi Vs the Chief… — Criminal Trial and Appeal | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^{T H} DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.2352/2011

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BETWEEN:

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RAMAPPA S/O.HANAMAPPA GADAGI AGE: 70 YEARS, OCC: RETD. GOVERNMENT SERVANT, R/O. GUDUR, TQ: HUNGUND, DIST: BAGALKOTE.

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….PETITIONER.

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(BY SHRI VITTHAL S. TELI, ADVOCATE.)

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AND:

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THE CHIEF ADMINISTRATIVE OFFICER DISTRICT COURT, BAGALKOTE, REPRESENTED BY STATE P.P.

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….RESPONDENT.

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(BY SHRI RAMESH CHIGARI, HIGH COURT GOVERNMENT PLEADER.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 9.10.2009, PASSED BY C.J.M., BAGALKOTE, IN C.C.NO.30/2007 WHICH IS CONFIRMED BY JUDGMENT

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DATED 13.10.2011, PASSED BY DISTRICT AND SESSIONS JUDGE, GADAG, IN CRL.A.NO.25/2010, ETC.,.

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is preferred by accused being aggrieved by judgment of conviction and order of sentence dated 9.10.2009, passed by CJM, Bagalkote, in C.C.No.30/2007 convicting accused for the offence punishable under section 193 of IPC, which was affirmed by District and Sessions Judge, Gadag, in Crl.A.No.25/2010 by judgment dated 13.10.2011.

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Brief facts leading to filing of this petition are as under:

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Petitioner herein was the Complainant, who registered a complaint before the Lok-Adalath Police on 24.09.2002 against one Shanthappa, who is the accused in Spl. CC No.1/2004 (hereinafter referred to as the ‘main case’) for the offence punishable under Section 7 and 13(1)(d)

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read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act’). Based on which cognizance was taken and charge came to be filed and the matter was set down for trial. In the said main case petitioner herein deposed as PW.1 before the District and Sessions Judge, Bagalkot on 22.12.2006 and gave a false evidence before the Court in the judicial proceedings. In the said main case after trial accused therein was found guilty of the offence punishable under Section 7 of the PC Act and was not found guilty for offence under Section 13(1)(d) read with Section 13(2) of PC Act, while the said judgment came to be passed in the main case, learned Sessions Judge opined as under:

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“ I feel that the complaint who did file a written complaint alleging demand of illegal gratification by the accused, during the course of trial turned back to favour the accused and he being an educated person and served sufficiently long time in a responsible job as Probationary Officer Gr-II, he has given

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false evidence during the course of trial and requires to be prosecuted for the same.”

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Thereafter, learned Sessions Judge

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passed the order issuing show cause notice to the Complainant therein – petitioner herein as to why he should not be prosecuted for giving false evidence turning back to his allegations in the complaint. Thereafter, learned Sessions Judge passed an order in Cril. Misc. No.35/2007. The Chief Administrative Officer of District and Sessions Judge, Bagalkot, gave a complaint to the Chief Judicial Magistrate, Bagalkot for initiation of action against the petitioner herein.

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Accordingly, CJM, Bagalkot, after

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receiving the complaint and certified copies of the document took the cognizance for the offence punishable under Section 190(1)(a) of Cr.P.C. and registered a case against the petitioner herein for the offence punishable under Section 193 IPC and issued summons to the petitioner. Thereafter,

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after receipt of the summons petitioner appeared before the Court and was enlarged on bail. Thereafter charge came to be framed against the petitioner, wherein he pleaded not guilty and claims to be tried.

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In order to prove the guilt of the accused prosecution examined the Complainant as PW1 and got marked 14 documents and closed its side. Thereafter statement of accused was recorded under Section 313 of Cr.P.C., wherein accused denied all the incriminating circumstance and evidence against him. However, accused did not enter into the witness box and neither has he produced any documents in support of his case.

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After going through the entire material evidence both oral or documentary, the trial Court came to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt by placing sufficient material before the Court. Accordingly, convicted the accused for the offence punishable under Section

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193 IPC and sentenced him to undergo simple imprisonment for one year and fine of Rs.1,000/-. Aggrieved by the judgment of conviction passed by the trial Court petitioner approached the District and Sessions Judge, Gadag in Crl.A. No.25/2010

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After re-appreciation and re-

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consideration of entire material evidence both oral or documentary, Appellate Court came to the conclusion that the order passed by trial Court was based on the oral or documentary evidence and in accordance with well settled principal of law and since the petitioner herein had not made out any ground to interfere with the judgment of

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the trial Court, Appellate Court dismissed the appeal and confirmed the order passed by the trial Court.

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Aggrieved by the said concurrent judgment of conviction and order of sentence passed by both the Courts petitioner is before this

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Court challenging the legality, correctness and propriety of the judgments of both the Courts.

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Heard Sri Vitthal S. Teli, learned

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counsel for petitioner and Sri Ramesh Chigari, learned High Court Government Pleader for respondent – State.

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It is contended by the learned counsel for petitioner that the judgment of both Courts in convicting the petitioner for the offence punishable under Section 193 IPC is contrary to law, the evidence on record and hence the same is

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not sustainable in law and requires to be set aside. Learned counsel further contends that both the Courts have mis-directed itself and misconstrued the provisions of Section 193 of IPC. He further contends that necessary ingredients to attract Section 193 of IPC are not considered and thereby causing grave miscarriage of justice to the petitioner by convicting him. Learned counsel further contends that the basic fundamental principles has been ignored by both the Courts as

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in order to attract Section 193 of IPC and it is necessary that previous statement and subsequent statement must be on oath. Learned counsel further contends that both the courts have erred in not considering this aspect that to make petitioner liable for offence of perjury necessarily there must be a statement of facts and the said statement of fact should have been denied on oath. Learned counsel further contends that in the present case petitioner has given evidence only once in the aforesaid main case and the statement prior to that was given before the Lok-Ayuktha Police. Therefore, the provisions of Section 193 of IPC would not attract to the present facts and circumstance of the case.

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Learned counsel further contends that both the Courts have failed to take into consideration that a mere fact of making a contradictory statement at two different stages in judicial proceedings is by itself not sufficient to justify the prosecution for perjury under Section

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193 of IPC. Learned counsel further contends that both the Courts have not property appreciated oral or documentary evidence placed on record and has mechanically passed the arbitrary order resulting in miscarriage of justice to the petitioner. Learned counsel further contends that while the show cause notice was issued to him, copy of the complaint or statement made by him and the evidence before the Court in the main case was not furnished to him, thereby denying the fundamental requirement of fair hearing. Therefore, show cause notice issued is bad in law. It is further contended by the learned counsel that both the Courts have mis-directed itself in convicting the accused for the offence under Section 193 of IPC.

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Learned counsel further contends that petitioner had filed a complaint in the main case against the accused therein only at the instance of the Lok-Ayuktha Police and it was not a voluntary act of the petitioner herein to lodge the said

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complaint before the Police. Learned counsel further contends that the filing of complaint before the Lok-Ayuktha Police would not come within the definition of judicial proceedings and for that matter within the definition of ‘Court’. Therefore, petitioner has not given any evidence which is false and he has clearly stated the true facts of the case. He further contends that both the Courts have committed an error in not appreciating these aspects with regard to complaint, which was given before the Police not on oath and his evidence is placed before the Special Court in the main case as only the first evidence and not on oath. Therefore, when there is no evidence on oath there is no question of petitioner committing offence under Section 193 of IPC. Having not considered these fundamental aspects both the Courts have committed serious error causing miscarriage of justice to the petitioner. On the basis of these statements learned counsel for petitioner seeks to allow the

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petition and set aside the judgment of conviction passed by both the Courts.

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In support of his case learned counsel for petitioner has relied on the following authorities:

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(1) KTMS MOHD. AND ANOTHER vs UNION OF INDIA reported in (1992) 3 SCC 1978;

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(2) AMARSANG NATHAJI AS HIMSELF AND AS KARTA AND MANAGER reported in CIVIL APPEAL NO.11120/2016;

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(3) OMKAR NAMDEO JADHAO AND OTHERS vs SECOND ADDITIONAL SESSIONS JUDGE, BULDANA AND ANOTHER reported in (1996) 7 SCC 498;

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(4) ISMAIL KHAN vs THE STATE reported in 1992 CRI.L.J. 3566;

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(5) BHUPAL vs THE STATE OF KARNATAKA in CRL. PET. NO.8495/2010;

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(6) SHANTAPPA vs THE STATE OF KARNATAKA in CRL.A. NO.395 OF 2007;

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(7) PROF. CHINTAMANI MALVIYA vs HIGH COURT OF MADHYA PRADESH in Crl. A. No.649 of 2016;

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Per contra, learned High Court

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Government Pleader contends that the judgment of conviction passed by the trial Court and confirmation of the same by the Appellate Court is based on the material evidence both oral or documentary and the same is in accordance with

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law and hence no interference is required in the matter by this Court.

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Learned HCGP contends that petitioner herein was none other than the complainant in the main case and it is on the basis of complaint registered by petitioner that the law was set in motion and Lokayukta acted upon the said complaint lodged by petitioner and action was taken against one Shantappa, accused therein,

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who later on came to be convicted for the offences. Learned HCGP further contends that the petitioner had adduced evidence in the main case

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as complainant-P.W.1 and while making the statement on oath before the Court in a judicial proceedings, it is incumbent on the petitioner to state the truth as he is bound by law to make a truthful statement. In the present case, the petitioner acting as P.W.1 in the main case has deliberately made a false statement before the Court of law, which he knew and believed to a false statement. Therefore, the trial Court considered this aspect of false evidence given by petitioner and has rightfully convicted the petitioner for the offence under Section 193 of IPC.

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Learned HCGP further contends that the defence taken by petitioner in the present proceedings is that he had not narrated the contents of the complaint Ex.P.1 in the main case, except identifying the complaint and the signature on the complaint as Exs.P.1 and 1(a). Learned HCGP contends that when once the petitioner has entered into witness box as P.W.1 it was his

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bounden duty to narrate the true facts of the case; as petitioner retracted from previous statement given in the complaint Ex.P.1 in the witness box, it is ex-facie that petitioner has deliberately given a false statement with deliberate knowledge and belief knowing it to be a false statement. Therefore, the trial Court has considered all these aspects on appreciation of these material evidence and documents and has rightfully convicted the petitioner for the aforesaid offence.

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Learned HCGP further contends that after registering the complaint before Lokayukta and at the time of adducing evidence before the Special Court in the main case, it does not lie in the mouth of petitioner to state that he was threatened and forced by Lokayukta to write the said complaint and to register the complaint as per Ex.P.1. Considering the fact that petitioner is an educated person having retired from Government Service as Probationary Grade-II

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Officer, he was well aware of the consequences and the repercussion of lodging a false or frivolous complaint. Therefore, on these submissions, learned HCGP seeks to dismiss the present petition and affirm the orders passed by both the Courts.

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Having heard the learned counsel for petitioner and learned HCGP, the points that arise for consideration before this Court are,

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(i) Whether Section 193 of IPC is attracted in the present facts and circumstances of the case.

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(ii) Whether there is any illegality or perversity committed by both the Courts in passing the impugned orders.

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(iii) Whether the judgment of conviction deserves to be set aside.

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In order to answer the above points, it

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is necessary to have a cursory look at the facts and circumstances of the case, evidence and the materials placed before the Court. It is not in

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dispute that on the basis of the complaint registered by petitioner before the Lokayukta Police, investigation was commenced against the accused therein, namely Shantappa for the offences punishable under Sections 7, 13(1)(d) read with Section 13 (2) of Prevention of Corruption Act, 1998. It is also not in dispute that based on the complaint, a trap was laid against the accused therein. Pursuant to the investigation, main case came to be registered on the initiation of the complaint by the petitioner, which on conclusion of trial, the accused therein came to be convicted for the aforesaid offences.

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It is also not in dispute that the complaint lodged by petitioner herein was in his own hand writing and it is necessary to mention here that prior to the cross-examination, the petitioner has served as Probationary Officer Grate-II for a period of 16 years till his retirement on 31.03.2000. Therefore, it is nobody’s case that the petitioner is an

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uneducated person infact he is a well educated person having served in the Government department for 16 years, it is bound that petitioner would know the legal consequences of lodging such complaint. After the order of conviction was passed in the said main case by the Special Court, the learned Sessions Judge having came to the conclusion that the petitioner has retracted his statement during the course of trial and has given a false evidence before the Special Court passed for an order for issuing show cause notice for prosecuting the complainant therein for giving false evidence. Thereafter, a show cause notice was issued to the petitioner, to which, he has replied and case was registered in Criminal Miscellaneous Case No.35/2007 pursuant to the conviction order passed by the Special Court and after considering the reply offered by petitioner, the Sessions Judge directed the Chief Administrative officer of the Court to register a complaint before the Chief

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Judicial Magistrate, Bagalkot against the petitioner for giving false evidence. Thereafter, the present case came to be registered and cognizance was taken against the petitioner. After appearance of the petitioner before the trial Court, entire complaint along with documents and the reply were furnished to petitioner, which is produced and marked as Ex.P.1 before the trial Court.

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It is seen from the records that Chief Administrative Officer of District Court, Bagalkot examined himself as P.W.1 in order to prove the guilt of accused and got produced Exs.P.1 to 14 to substantiate his case. Though, P.W.1 was cross-examined by petitioner, there is no worthwhile evidence that has been elicited or extracted with regard to the retraction of statement by petitioner. However, the main contention of petitioner is on the point of law that the ingredients required under Section 193 of IPC has not been fulfilled by the Sessions Court while

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initiating the complaint against petitioner herein. In view of the above, it is essential to extract provisions of Sections 191, 192 and 193 of IPC, which read as under :

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“191. Giving false evidence.Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

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Explanation 1.- A statement is within the meaning of this section, whether it is made verbally or otherwise.

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Explanation 2.- A false statement as to the belief of the person attesting is within a meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

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192. Fabricating false evidence.Whoever causes any circumstance to exist or [makes any false entry in any book or

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record, or electronic record or makes any document or electronic record containing a false statement], intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said “to fabricate false evidence”.

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193. Punishment for false evidence.Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine,

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and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment

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of either description for a term which may extend to three years, and shall also be liable to fine.

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Explanation 1.-A trial before a Courtmartial; is judicial proceeding.

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Explanation 2.An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.”

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On careful perusal of the above provisions, it is seen that whoever legally bound by oath to state the truth or to make a declaration upon any subject makes any subject which is false and which he either knows or believes to be false or does not believe to be true is said to be false evidence. Explanation.-1 is important that a false statement is within the meaning of this section, whether it is made verbally or otherwise. On perusal of Section 193 of IPC, it is seen that whoever intentionally gives evidence in any stage of a judicial proceeding shall be punished with imprisonment of either

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description for a term which may extend to seven years, and shall also be liable to fine.

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In order to understand the definition of judicial proceeding, it is relevant to extract

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Section 2(i) of Cr.P.C., which reads as under:–

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“judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath.”

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In order to further understand the definition of evidence, Section 3 of the Evidence Act, 1872 reads as under:-

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“Evidence means and includes – (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. (ii) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.”

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On a bare reading of these provisions, it

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can be clearly understood that whenever a person gives a statement or evidence before the Court, he is duty bound to state the truth and in case, he makes a false statement knowing fully well that such a statement which he is making to be false, then he would be liable for prosecution under Section 193 of IPC. In the present case, petitioner was the complainant before the Special Court in the main case having lodged a complaint before the Lokayukta Police to initiate action against the accused therein, in which the petitioner very well knew that the same could result in conviction of the accused therein and it was also within the knowledge of the petitioner that the personal liberty of the accused therein would be affected by lodging of the complaint by the petitioner. After registration of the said complaint and action being initiated by the Investigating Agency and having filed the final report, the accused therein was tried and later on, convicted for the offences. Be

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that as it may, in the course of trial in the main case, the petitioner herein stepped into the witness box as PW.1 and identified the complaint lodged by him as Ex.P1 and identified his signature on the complaint as Ex.P1(a). The date of filing of complaint was on 24.09.2002 and the date of evidence given by the petitioner was on 22.12.2006 and the show cause notice was given to the petitioner herein on 26.02.2007. After entering into the witness box as PW.1, the petitioner has retracted his statement and took an u-turn on the statement made by him before the Public Authority. Thereafter, he has narrated that the statement given by him before the Lokayukta was due to the inducement and threat given by the Lokayukta Police and that the contents stated in Ex.P1 before the Special Court in the main case was not given on his own accord and they were written as per the direction of the Lokayukta Police and therefore, he asserted that he has not given any false evidence before the Court.

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On a careful understanding of the

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provisions of Sections 191 to 193 of IPC, it is crystal clear that the Legislature’s intent in incorporating these provisions was to curb malice of making false statement on oath before the Court and producing false document which would erode efficacy and administration of judicial system. In order to curb such event, these provisions are put into the Code.

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It is not in dispute that the petitioner has lodged the complaint before the Lokayukta. It is also not in dispute that the petitioner stepped into witness box to adduce evidence four years later to depose on the basis of the complaint lodged by him before the Special Court in the main case. What has transpired within this period of four years between the petitioner and the accused is left to imagination. Once the petitioner stepped into witness box to depose against the accused therein for the offence which were initiated by him takes a different angle as the

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petitioner has taken a u-turn and denies entire statement made in the complaint, on the contrary, he makes allegation against the Lokayukta Police for having threatened him and coerced him in filing the said complaint against the accused therein.

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In our country, the judicial system provides justice to people. The Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The Courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the Court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts production of material

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documents and witnesses. It is also high time that the public who come to give evidence before the Court in any judicial proceedings understand the seriousness of the statements made before the Court and understand purity of the proceedings before the Court. The purity of proceedings of the Court cannot be permitted to be sullied by a party on frivolous, vexatious and insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy and without any fear of consequences arising therefrom.

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The offences incorporated under this chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the Courts, to some

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extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the Courts despite taking oath make false statements to suit interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let lose by vested interest and professional litigants.

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The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the Courts stop to take evasive recourse despite proof of the commission of the offence under Chapter XI of IPC, which deals with the provisions of Sections 191 to 195 of IPC. If the system is to survive, effective action is the need of the time. In my opinion, the present case is no exception to the general practice being followed by many of the litigants in the country.

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Therefore, in the present facts and circumstances of the case, the petitioner having given a statement before the Public Authority should be taken as a statement made truthfully. Thereafter, the petitioner stepped into the witness box in a judicial proceeding to give evidence and it is presumed that when a person gives evidence standing in the witness box in the judicial proceeding before the Court is making truthful statement and not any false statement. The evidence is contemplated under Section 3 of the Evidence Act, which includes both oral and documentary evidence. Any document i.e. produced before the Court comes within the definition of the evidence is documentary evidence. Any oral statement made before the Court on oath comes within the definition of oral

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evidence. Therefore, any statement i.e. made on oath or any adjudication of document produced before the Court in a judicial proceeding ought to be made by the person truthfully without any

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malice or ulterior motive. Therefore, Sections 191 and 193 of IPC clearly state that when a person gives false evidence in any stage of judicial proceeding, he shall be punished with imprisonment stated therein.

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The learned counsel for the petitioner has vehemently contended that there is a difference between making a statement on oath and filing a complaint before an Authority. No doubt, the complaint is made before a Public Authority. It should also be presumed that such statement or complaint before the Public Authority is made by making truthful statement and in frivolous statement, it is presumed that such statement is making to take wreck vengeance on the opponent. In the present case, the petitioner stepped into the witness box and while giving evidence, he identifies the complaint lodged by him before the Public Authority-Lokayukta Police as Ex.P1. He identifies his signature on the complaint as Ex.P1(a). Therefore, it is a clear

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statement of affirmation of having filed the said complaint before the Public Authority which is not in dispute by the petitioner. However, the petitioner contends that the complaint which was registered before the Lokayukta Police was made because of the inducement and the threat imposed by the Lokayukta Police. It is unbelievable that if there was any threat or coercion by the Public Authority such as Lokayukta Police against the petitioner, nothing prevented the petitioner from lodging a complaint or even raising his little finger against the Lokayukta from the date of complaint

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filed in the year 2002 till the date of giving evidence before the Court in the year 2006 and thereafter, in the year 2007, when show cause notice issued by the Sessions Court; for the reasons best known and for all possible imagination, it could be assumed that for the benefit of the petitioner, he has retracted on his statement provided to the Lokayukta and has made a false statement on oath before the judicial

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proceeding in the main case before the Special Court.

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The learned counsel for the petitioner relies on the judgment in the case of K.T.M.S. Mohd. (supra), wherein paras-35, 36 and 37 read as under:

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“35. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading “Provisions as to Offences Affecting the Administration of Justice”. This section confers an inherent power on a court to make a complaint in respect of an offence committed in or in relation to a proceeding in that court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, if that court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause(b) of sub-section (1) of Section 195 and authorizes such court to hold preliminary enquiry as it

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thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section(1) of Section 340. The words “in or in relation to a proceeding in that court” show that the court which can take action under this section is only the court operating within the definition of Section 195(3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340(1) which corresponds to Section 476(1) of the old Code was examined by this Court in K. karunakaran v. T.V.Eachara Warrier and in that decision, it has observed: (SCC pp. 25 and 26, paras 21 and 26)

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“At an enquiry held by the Court under Section 340(1), CrPC, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action.

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… The two per-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC.”

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36. The above provisions of Section 340 of the Code of Criminal Procedure are alluded only for thepurpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of

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contradictory statements in a judicial proceeding.

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37. The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under Section 193 IPC but it must be established that the deponent has intentionally given a false statement in any stage of the ‘judicial proceeding’ or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice.”

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The ratio laid down by the Hon’ble Apex Court pertains to the contradictory statements made in two different stages in a judicial proceeding as the same would not justify the prosecution for perjury under Section 193 of IPC. However, the said judgment has laid down that if it is established that the deponent has intentionally given a false

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statement in any stage of the ‘judicial proceeding’ or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding and further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice. As stated in the earlier paragraphs, it is no doubt that in the present proceedings, the petitioner was very well aware that he was retracting on his statement made before the Public Authority and while deposing before the Court in the judicial proceeding, he has deliberately made a false statement only with clear intention to help and support the accused therein or for any other extraneous consideration.

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In the case of Amarsang Nathaji (supra), para-7 reads as under:

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“7. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code (45 of

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1860) (hereinafter referred to “the IPC”); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S.Mohd. and Another v. Union of India). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.”

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The ratio laid down by the Hon’ble Apex Court is

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to the effect that despite contradictory statement, the Court will have to form an opinion that it is

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expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of Cr.P.C. In the present case, an inquiry has been conducted, the prosecution has been initiated against the petitioner by giving him a fair opportunity to defend his case. Pursuant to the detailed trial, the petitioner was convicted and on re-appreciation and revaluation by the Appellate Court, the same has been affirmed and the conviction of petitioner is upheld by the Appellate Court. Therefore, I find that it is expedient in the interest of justice to initiate inquiry against the petitioner by the trial Court and after having found accused guilty, he should be convicted for the aforesaid offences offences.

¶167

In the case of Omkar Namdeo Jadhao (supra), similar ratios as stated above has been held by the Hon’ble Apex Court. The Hon’ble Apex Court has held that if it is expedient in the

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interest of justice and if it is found on the facts of each case that a deliberate false statement has been made in any judicial proceeding on oath, action deserves to be taken against the said person for the aforesaid offence.

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In the case of Ismail Khan vs. The State reported in 1992 Crl. L. J. 3566, stated supra, it is held as under:

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“7. Even if the Magistrate were to proceed summarily against the person under S.322, Cr.P.C. for which no previous complaint is necessary, still the law requires that the show cause notice should be accompanied by the statement of the witnesses in regard to which the accused has, in the opinion of the Court, perjured himself.

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8. In Dr.S.P.Kohli v. The High Court of Punjab and Haryana, AIR 1978 SC 1753:

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(1978 Cri L J 1804), the Supreme Court has held as follows:

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“(C) Penal Code (45 of 1860), S.193 Perjury - Show cause notice - Contents of.

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It is highly desirable and indeed very necessary that the portions of the witness’s statement in regard to which the accused has, in the opinion of the Court, perjured himself, should be specifically set out in or form annexure to the notice issued to the accused so that he is in a position to furnish an adequate and proper reply in regard thereto and be able to meet the charge.”

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In this case, it is not disputed that the show cause notice was not accompanied by the statement of the petitioner in respect of which the learned Magistrate has come to the conclusion that the petitioner had committed perjury.

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9. The learned Magistrate has perused the complaint given by the accused and his deposition and then he came to the conclusion that the petitioner has committed perjury. It is necessary that in order to make a person liable for perjury, he should have made a statement on oath regarding the

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facts on which his statement was based and then deny those facts on oath on a subsequent occasion. His earlier statement regarding the facts must be on oath and his subsequent statement also must be on oath and if both the statements are opposed to each other and they cannot be reconciled, then a person may be liable to be proceeded against for perjury under S.344, Cr.P.C. or under S.193, IPC. An old judgment of the High Court of Judicature at Bombay in Emperor v. Bankatram Lachiram 1904 Cri L J Vol. 1, 390 is illuminating on this point. In the said judgment, Chandavarkar, J. has held as follows :-

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“It is a well known rule of law, applied by eminent Judges, to case of perjury arising out of contradictory statements that the Court dealing with them should not convict unless fully satisfied that the statements are from every point of view irreconcilable; and if the contradiction consists in two statements opposed to each other, as to matters of inference or opinion on which a man may take one view at one time and a contrary view at another, there can be no perjury, unless he has, on

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oath, stated facts on which his first statement was based and then denied those facts on oath on a subsequent occasion.

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It is the duty of the Court to see whether the statements can be reconciled or not. The accused in a criminal case is merely on the defensive and unless there is any positive admission of a fact by him, any omission on his part to explain what indeed can be explained without his explanation should not be pressed against him. His failure to reconcile contradictory statement is not fatal to his case.

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The construction of two contradictory depositions, like the construction of every document, is a question of law, not of fact.

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The Criminal Procedure Code gives the High Court the power to go into evidence in revision. As a matter of practice, however, it will not interfere in revision with findings of facts based upon appreciation of evidence, but it will interfere under special circumstances or where there is an error of law.”

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As justice Aston differed with Justice Chandavarkar; the case was referred

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and on a reference Chief Justice Jenkins has held as follows :-

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“Per Jenkins, CJ.(on reference)-To convict an accused of giving false evidence his necessary to show not only that he has made statement which is false, but also that he either knew or believed it to be false or did not believe it to be true.

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Where it is sought to establish the offence of perjury on contradictory statements, although the Court may believe that on the one or the other occasion, the prisoner swore what was not true, it is not a necessary consequence that he committed perjury;. for there are cases in which a person might very honestly and conscientiously swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time be convinced that he was wrong and swear to the reverse without measuring to swear falsely either time.

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The controlling power of the High Court in revision of criminal cases is a discretionary power, and it must be exercised with regard to all the circumstances of

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each particular case, anxious attention being given to the said circumstances, which very greatly. This discretion ought not to be crystallized as it would become in course of time by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion, which the Legislature has committed to them. This discretion, like all other Judicial discretions ought, as far as practicable, to be left untramelled and free, so as to be fairly exercised according to the exigencies of each case.”

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10. In that case, it is held that in order to make a person liable for perjury, the earlier statement of the person must be on oath and his subsequent statements also must be on oath and it is not only necessary that he made a statement which is false, but also that he either knew or believed it to be false or did not believe it to be true. In Santokh Singh v. Izhar Hussain; AIR 1973 SC 2190 : (1973 Cri LJ 1176), the Supreme Court has held as follows:-

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prosecution for giving false evidence - Exercise of-

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Brief Note :- (B) Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the questions of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Two frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution.”

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In this case, the J.M.F.C. has only come to the conclusion on the basis of the previous complaint which is not made on oath by the petitioner, therefore, the lower Court was not justified in proceeding against the petitioner under S. 344, Cr.P.C.”

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In the back drop of the above and considering the facts and circumstances of the

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present case, I am of the opinion that petitioner herein knew very well that he was making a complaint against accused therein which could culminate into conviction of accused and further would restrict his personal liberty by imprisonment. Petitioner being an educated person knew the consequences of lodging such a complaint. Thereafter petitioner stepping into witness box in a judicial proceedings and retracting the statement by making false statement by going against his own statement made before a public authority would come within

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the definition of false evidence as stated by me earlier. Evidence means both oral and documentary and any such documents produced before the Court would come within the definition of evidence. Therefore above judgment would not be applicable to the facts and circumstances of the present case.

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In the case of Bhupal S/o.Pundalikappa Totagi vs. the State of Karnataka, in

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Crl.P.No.8495/2010, a co-ordinate bench of this Court has taken a view, where a false evidence was adduced by party vis-a-vis the statements made by him at the first instance and there could be inconsistent statements made by complainant and the same cannot be construed as false evidence as there could be inconsistencies in the allegations made at the first instance and the evidence tendered in the course of trial.

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In my respectful consideration in the present case on hand petitioner has identified complaint Ex.P.1 which is in his own handwriting and has identified the signature and marked as Ex.P.1(a). Having done so, it is admitted fact by petitioner that he has given such a statement before the public authority which was truthful to prosecute a person for a criminal offence. Having admitted the complaint as Ex.P.1 and signature as Ex.P.1(a), in my opinion petitioner is duty bound to state the truth and having retracted from the statement made in complaint, petitioner has

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deliberately given a false evidence. As stated above, the definition of evidence would be both oral and documentary evidence. Production of Ex.P.1 is evidence by itself and stating contrary what is already stated amounts to false statement and false evidence given by petitioner. Therefore the judgment relied by petitioner would not be helpful in the present facts and circumstances of the case.

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Learned counsel has also relied on a judgment in the very same Special Case No.1/2004 which was taken up in criminal appeal and ultimately ended up in allowing the appeal thereby acquitting accused therein of all charges. However merely because the main case has ended up in an acquittal would not absolve the liability of petitioner for having given a false evidence in judicial proceedings.

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In the case of Prof.Chintamani Malviya vs. High Court of Madhya Pradesh, stated supra, it is held as under:

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“10. Appearing for the appellant, Mr.K.V.Vishwanathan, learned Senior Advocate submitted inter alia;

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(a) It has consistently been laid down by this Court that prosecution for perjury be sanctioned by Courts only in those cases where perjury appears to be deliberate and on a matter of substance and the conviction would reasonably be probable. Further, prosecution ought to be ordered when it would expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement. He placed reliance on the decision of this Court in Chajoo Ram v. Radhey Shyam and Another, (1971) 1 SCC 774 where this Court observed:-

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“The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently

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without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation….”

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Reliance was also placed on the decision of this Court in K.T.M.S.Mohd. and Another v. Union of India, (1992) 3 SCC 178.

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(b) The fact that there was delay of five months in filing the application under Order 9 Rule 7 from the date of alleged service of notice on 16.08.2014

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indicated that the appellant was not aware of the pendency of the election petition.”

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In the present case, trial Court as well as appellate Court on re-appreciation of evidence and material documents have convicted accused for the offence punishable under section 193 of IPC. Therefore after having gone through the statement made by petitioner, I am of the considered opinion that it is clearly evident on the face of record that petitioner has deliberately made a false statement for the reasons best known to him and may be for extraneous circumstances. Considering the facts and circumstances of the case on hand, it is prima facie clear from the statement made by petitioner in Special Case No.1/2004 that he has committed an act of perjury by making a deliberate false statement which would attract the provisions of section 193 of IPC. Hence I answer point No.1 in the affirmative.

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In view of the reasons stated above, I do not find any illegality or perversity committed by both Courts in passing the impugned order. Accordingly I answer point No.2 in the negative.

¶225

In the fact situation of the case it is seen that it has become a tendency in the Courts of justice for a person to step into witness box and blatantly state falsehood and make false statement. This Court cannot be silent spectator where stinking facts warrant interference in order to serve the interest of justice. If this Court remains oblivious to the patent facts on record, which would tantamount to failure in performing its obligations under the law. In this view of the matter, I am unable to accept the contentions of learned counsel for petitioner.

¶226

The explanation and reply provided by petitioner is also unacceptable as after the period of four years from the date of filing the complaint. While adducing evidence, petitioner has deliberately retracted from his earlier statement

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before a public authority. This Court is conscious of the fact that true essential conditions to attract the provisions of section 193 of IPC would be that material produced before the Court must make out a prima facie case for initiating prosecution. Secondly it is expedient in the interest of justice to permit the prosecution, in the present case on hand prosecution was permitted and conducted. Trial Court found accused guilty of all charges. Appellate Court on re-appreciation and re-evaluation of evidence affirmed the same and before this Court I do not find any material irregularity or perversity committed by both courts while passing the impugned order. Therefore conviction order passed by both Courts deserves to be up held and accordingly I answer point No.3 in the negative.

¶229

Learned counsel for petitioner submits that benefit under the Probation of Offenders Act may be extended to petitioner herein. Having considered nature of allegations and the offence

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made out, I do not find any merit in the said submission to extend the benefit under the Probation of Offenders Act and the same is rejected.

¶232

At this stage, learned counsel for the petitioner submits that if the Court is not inclined to allow his petition or release the petitioner on probation then in the alternative, he pleads to show leniency in the sentence imposed by the trial Court as the petitioner is aged more than 80 years and he is suffering from old aged ailments and also unable to walk and move easily without assistance and support. Having considered the submissions of the learned counsel and for the aforesaid reasons, I pass the following:

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ORDER

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(i) Petition is partly allowed.

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(ii) The Judgment of conviction passed by the Chief Judicial Magistrate, Bagalkote in Criminal Case No.30/2007 and confirmed by the

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District and Sessions Judge, Gadag in Criminal Appeal No.25/2010 is hereby confirmed and upheld. However, order of sentence passed by the trial Court and confirmed by the appellate Court is modified as under :

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Petitioner/accused is sentenced to undergo simple imprisonment for a period of three months and shall pay fine of Rs.25,000/-, in default of payment of fine, he shall undergo further simple imprisonment for a period of six months.

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The assistance provided by learned counsel for petitioner in the above matter is appreciated and the same is placed on record.

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Sd/-

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JUDGE

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MRK/VK/CKK/LB.

Ramappa S/O. Hanamappa Gadagi v. the Chief Administrative Officer

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Ramappa S/O. Hanamappa Gadagi v. the Chief Administrative Officer

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