THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.3088 of 2008 ORDER: The petitioner is Accused No.3 in CC.No.280 of 2007 on the file of the Judicial First Class Magistrate, Armoor, Nizamabad District. He allegedly committed offences under Sections 193, 205, 419 and 420 I.P.C., read with Section 109 I.P.C. Contending that no prima facie case is made out against him, the petitioner laid this petition to quash the proceedings as against the petitioner. 2. The petitioner is A.3 in CC.No.280 of 2007 as already pointed out. He has been a practising advocate at Armoor. A case in CC.No.209 of 2003 on the file of the same Court was against A2 herein for the offences under Sections 337 and 338 I.P.C. A.3 herein was defending A2 herein in that case in CC.No.209 of 2003. 3. While so, a witness purported to be LW.7 in CC.No.209 of 2003, namely Macharla Narsaiah, was brought to Court to depose in the case. The witness fumbled while mentioning his name at the time of his evidence. 4. The learned Judge became suspicious. He ordered the learned Assistant Public Prosecutor to enquire into the matter and report the same to him. The learned Assistant Public Prosecutor enquired the same through the liaison officer of the Court by name Raghu and came to know that the witness who appeared as LW.7 in CC.No.209 of 2003 in fact was one P.Ganesh who is the first accused herein. He is no other than the brother of the second accused herein. 5. Considering that A1 cheated the Court, the learned Assistant Public Prosecutor lodged a report to the Court. The Court in turn forwarded the same to Police under Section 156(3) Cr.P.C. Police registered a case initially against A1 and A2 and issued First Information Report. After further investigation, on the basis of the confessional statements of A1 and A2 herein, Police filed charge sheet against A1 to A3. 6. These are the facts of the case on which A3 contended that no case is made out against him. Sri K.Venumadhav, learned counsel for the petitioner/A3 referred to the usual practice of summoning witnesses in trial Courts. Usually, summons is issued to a witness. The Police constable serves the summons upon the witness. Sometimes, the constable produces the witness after service of summons before the Assistant Public Prosecutor. In other circumstances, the witness comes to Court on the date of hearing as mentioned in the summons. In either event, the witness meets the Assistant Public Prosecutor. The Assistant Public Prosecutor usually interviews the witness. He later puts the witness in the witness box. 7. This is admittedly the general practice in case witnesses are summoned before the trial Court. The learned counsel for the petitioner contended that there is no role on the part of the defence counsel in such a circumstance and that the question of the present petitioner instigating A.1 to go before the Court as LW.7 therefore is preposterous and cannot be accepted. 8. Smt. Zareena Afsar, learned counsel representing the Additional Public Prosecutor, referred to the confessional statements of A1 and A2. In both the confessional statements, it was reported that A3 who is the petitioner herein, advised A1 to pose as if he was LW.7 and depose in the case so that the case could be disposed of expeditiously. The learned counsel for the petitioner contended that the confessional statements of co-accused have no value against the petitioner. It is a question of fact which cannot be gone into in this petition. The evidentiary value of the confessional statement can be decided by the trial Court only after trial. I therefore, consider that the confessional statements of A1 and A2 prima facie establish the complicity of A3 in the commission of the offence. Whether the prosecution establishes the guilt of A3 beyond reasonable doubt or not, is for the trial Court to decide after full-fledged trial. The petitioner at this stage cannot smother the criminal trial alleging that prima facie case is not made out against him and that the case is liable to be quashed as against the petitioner. This petition consequently is liable to be dismissed. 9. However, the learned counsel for the petitioner raised a technical ground as well. He contended that there is a bar under Section 195 Cr.P.C. for the prosecution of the petitioner and contended that the prosecution, as it is unsustainable and is liable to be rejected. Section 195(1)(b)(i) Cr.P.C. envisages that cognizance of a case for the offences under Sections 193 and 205 I.P.C. amongst other offences can be taken when the complaint in writing was lodged by the Court or by an officer of the Court, duly authorized by the Court in writing to lodge a complaint. As already pointed out, the offences alleged against A3 are under Sections 193 and 205 I.P.C. as well. Consequently, the bar under Section 195 Cr.P.C. operates. 10. While so, the case record discloses that when the accused did not properly respond in the Court Hall as a witness and when the Presiding Officer became suspicious about the identity of the witness, he directed the learned Assistant Public Prosecutor to enquire into the matter. It is further shown in the case that the learned Assistant Public Prosecutor entrusted the matter to the liaison officer by name Raghu, through whom he came to know that the alleged LW.7 was in fact A1 herein. The learned Assistant Public Prosecutor thereafter submitted a report to the Court. The Court in its turn forwarded the same to Police under Section 156(3) Cr.P.C. Police issued First Information Report on the basis of Section 156(3) Cr.P.C. The complaint was neither lodged by the Court nor by the Assistant Public Prosecutor upon written authorization of the Court. Consequently, the bar for the prosecution of the witnesses for the offences under Section 193 and 203 I.P.C. is abated. A3 who is the petitioner herein squarely falls within the ambit of Section 195(1)(b)(i) Cr.P.C. In view of the bar under Section 195 Cr.P.C., the prosecution against the petitioner is not maintainable. 11. Therefore, it is found that the prosecution has prima facie made out a case against the accused No.3/petitioner. At the same time, it is found that the complaint on the prosecution of the petitioner is barred by Section 195 Cr.P.C. The prosecution of the petitioner/A3, as the same is barred by Section 195 Cr.P.C., is hereby quashed. 12. Accordingly, the Criminal Petition is allowed. __________________ JUSTICE K.G. SHANKAR Dt:30.11.2011 ysk THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.3088 of 2008 Dt:30.11.2011 ysk