Dismissed

Pawan Kumar Gaud Son of Durgashankar, v. State of Rajasthan

Rajasthan HC30 May 2024CRLMP/1057/2024

Case brief

AI extract

What is this about?

This bench dismissed a petition challenging the maintenance of a show cause notice under Section 344 Cr.P.C. issued against petitioners for giving false evidence. The court held that the trial court correctly applied the section as the witnesses knowingly turned hostile after appearing to support prosecution.

What did the court decide?

Criminal Misc. Petition and pending application, if any, stands dismissed.

Pawan Kumar Gaud Son of Durgashankar, Vs… — Civil Procedure and Limitation | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 1057/2024

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Pawan Kumar Gaud Son Of Durgashankar, Aged About 33 Years, Resident Of Village Dhaturiya, Police Station -Anta, District Baran, Rajasthan (325202)

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Rajesh Kumar Patidar Son Of Shankar Lal Patidar, Aged About 33 Years, Resident Of 1165 Bakani Kheda, DistrictJhalawad (326022)

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Rakesh Kumar Malav Son Of Mukesh Kumar Malav, Aged About 35 Years, Resident Of Opposite Of Bundi Silica Factory, Kunhadi, Kota (324008)

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----Petitioners

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Versus

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State Of Rajasthan, Through Public Prosecutor

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----Respondent

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For Petitioner(s) : Mr. M.S. Raghav For Respondent(s) : Mr. Mahendra Meena, PP

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HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

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Order

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30/05/2024

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By way of this Criminal Misc. petition, the prayer has been made to quash the notice under Section 344 Cr.P.C., issued against the petitioners vide impugned judgment dated 31^st March 2022, passed by Special Judge, Sessions Court, Prevention of Corruption Act, Kota in Sessions Case No. 7/2020. Thereafter, separate misc. case no. 15/2022 has been registered.

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Brief facts of the case are that, a written report was submitted by the petitioner no.1 before the anti-corruption bureau, Kota, stating therein that he is having 6 tractors/trolleys and is indulged in supply of bricks, cement, etc. He further stated

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in the complaint that a false case has been registered against him by the SHO of Police Station Seeswali vide case no. 173/2018 and his tractors/trolleys are seized in this case. He further stated in the complaint that the concerned SHO is demanding Rs.8000/(Eight Thousand Rupees) per tractor on monthly basis. He does not want to give the bribe and he wants to get him caught red handed. On this written report trap proceedings were conducted and petitioner nos.2 and 3 were associated as independent witnesses. Bribe amount was handed over to one Jamnalal, who was acting as the agent of the SHO and this bribe amount was recovered from the possession of Jamnalal. On the basis of aforesaid trap proceedings, charge-sheet was filed against the SHO namely Satyanarayan Singh and his agent Jamnalal. During the process of trial, petitioners appeared in the witness box as P.W-9, P.W-13 and P.W-17 respectively but they did not support the prosecution case and turned hostile. After hearing all the parties, learned Trial Court recorded acquittal of both the accused persons vide judgment dated 31.03.2022 and by the same judgment issued a show cause notice under Section 344 of C.r.P.C calling upon the petitioners to show cause as to why they should not be punished summarily for the offence of giving false evidence.

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Learned Counsel for the petitioner submits that no such compelling circumstances were available before the Trial Court to issue show cause notices under Section 344 of C.r.P.C. to the petitioners. Counsel submits that as per the provisions, the concerned court has to first form an opinion that the witnesses/petitioners appearing in the proceedings before it have

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knowingly or wilfully given or fabricated false evidence. Counsel further submits that mere reading of the section would make it clear that the offence made punishable under Section 344 of C.r.P.C. is committed only when the witness had knowingly or wilfully given false evidence or had fabricated evidence with the intention that such evidence should be used in the proceedings before the court. Counsel further submits that if act of the witnesses is not willful or intentional, it cannot constitute an offence liable to be prosecuted under section 344 of Cr.P.C.

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Per Contra learned public prosecutor opposed the submissions made by the counsel for the petitioners and supported the proposed action against the petitioners. 5. I have considered the submissions made by the parties and perused the material available on record. 6. The Hon'ble Apex Court, while dealing with the essential ingredients for invocation of Section 344 Cr.P.C. and its object, in the decision reported as (2008) 8 SCC 34 Mahila Vinod Kumari v. State of M.P., held as under”-

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"8. In the present case, on the basis of the allegations made by the petitioner, two persons were arrested and had to face trial and suffered the ignominy of being involved in a serious offence like rape. Their acquittal, may. to a certain extent, have washed away the stigma, but that is not enough. The purpose of enacting Section 344 CrPC corresponding to Section 479-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old Code") appears to be to further arm the court with a weapon to deal with more flagrant cases and not to take

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away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they have failed to take action under Section 344 CrPC.

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9. This section introduces an additional alternative procedure to punish perjury by the very court before which it is commited in place of old Section 479-4 which did not have the desired effect to eradicate the evils of perjury. The salient features of this new provision are:

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(1) Special powers have been conferred on two specified courts, namely, the Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of fling a complaint before a Magistrate and try and punish the ofender by following the procedure of summary trials. For summary trial, see Chapter 21.

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(2) This power is to be exercised after having the matter considered by the court only at the time of delivery of the judgment or final order.

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(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.

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(4) The maximum sentence that may be imposed is 3 months' imprisonment or a fine up to Rs 500 or both.

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(5) The order of the court is appealable (vide Section 351).

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(6) The procedure in this section an alternative to one under Sections 340-343. The court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the court is of the opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of suchanature or for some reasons considered to be such thal the case should be dispOsed of under the ordinary procedure which would be more appropriate, the court may choose to do so [vide subsection (3)].

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(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)].

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10. For exercising the powers under the section the court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the court must come to the conclusion that in the interest of justice the witness concerned

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should be punished summarily by it for the offence which appears to have been committed by the witness, And the third condition is that before commencing the summary trial fo punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory. (See Narayanswami v. State of Maharashtra [(1971) 2 SCC 182: 197I SCC (Cri) 507])

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11. The object of the provision is to deal with the evil of perjury in a summary way.

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12. The evil of perjury has assumed alarning propositions (sic proportions) in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently then it is presently done.”

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Section 344 Cr.P.C. is part of Chapter XXVI, which deals with offences affecting the administration of justice. It provides for a summary trial and punishment of a person who has knowingly and willfully given false evidence or fabricated false evidence.

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From the material available on record it appears that petitioners were uttering falsehood with the sole intention of saving the accused persons in criminal trial from the clutches of criminal charges. It is also evident from the record that initially criminal action was initiated on the basis of written complaint submitted by petitioner no. 1 and petitioner nos.2 and 3 who are in government employment, were associated as independent witnesses in trap proceedings. It was legitimate expectation from the petitioners to stand with the prosecution's case but instead of

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supporting the prosecution case, they turned hostile and took a totally contrary stand.

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It is also evident from the record that prior to the appearance in the witness box no complaint was made either before the Trial Court or before the higher authorities of Police by the petitioners alleging that they were compelled to sign either on blank papers or already written papers.

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It is the need of the hour to deprecate the growing tendency of witnesses of turning hostile particularly considering the object of the legislature, underlying enactment of the provision of Section 344 C.r.P.C., is to eradicate the evil of perjury and fabrication of evidence, which is rising to a great extent, therefore, the courts are required to deal with such unscrupulous persons with firm hand and the provisions should be more effectively and frequently used.

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In view of the above narrated facts, circumstances and the law laid down by the Hon’ble Apex Court, I do no find any infirmity in the impugned action of learned trial Court and same deserves to be upheld.

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Accordingly, this Criminal Misc. Petition as well as pending application(s), if any, stands dismissed.

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(ANIL KUMAR UPMAN), J

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LALIT MOHAN /7

Pawan Kumar Gaud Son of Durgashankar, v. State of Rajasthan

Case brief

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Pawan Kumar Gaud Son of Durgashankar, v. State of Rajasthan

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