Crl. Revision No. 2417 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.2417 of 2002 Date of Decision: November 8, 2010 Harcharan Singh and another ........Petitioners Versus State of Punjab ........Respondent ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. D.D. Sharma, Advocate, for the petitioners. Mr. J.S. Sandhu, AAG, Punjab. SABINA, J. FIR No.6 dated 30.1.1994 was registered against Hans Raj @ Hansa at Police Station Sadar, Bathinda under Section 61 of the Punjab Excise Act, 1914 (in short 'the Act'). The prosecution case as noticed by the learned Sessions Judge in para 3 of the impugned order reads as under :- “.....On 30.1.1994 a police party headed by Harcharan Singh H.C., H.C. Nirmal Singh and other police officials was on patrol duty from village Jodhpur Romana Naruana etc. when the party reached on the bridge of the drain in the area of village Jodhpur Romana, a secret information was received against Hansa Raj alias Hansa to the effect that he was distilling illicit liquor by installing working Still in the ditches near Mehta minor and if raid was conducted, he could be apprehended. On the basis of this information, Ruqa was sent and a case was registered. Mohinder Singh Chowkidar was Crl. Revision No. 2417 of 2002 2 associated with the party. Raid was conducted at the aforesaid place. Hans Raj alias Hansa was found distilling illicit liquor by installing working still. Various memos were prepared by Harcharan Singh H.C., which were shown to have been attested by H.C. Nirmal Singhand Mohinder Singh Chowkidar. Nirmal Singh H.C. Apprehended his signatures and Mohinder Singh affixed his thumb impressions on the memos. During the trial Mohinder Singh Chowkidar was given up by the prosecution. Ultimately accused was acquitted by Shri. R.P. Nagrath, the then learned Addl. Chief Judicial Magistrate, Bhatinda on 14.12.1998. During the trial Mohinder Singh Chowkidar was examined by Hans Raj alias Hansa in his defence as D.W.1. In his examination-in-chief he stated that he was not joined by the police party on 30.1.1994 and he did not affix his thumb impressions on the memos. Hans Raj alias Hansa examined Dr. Atul K. Singla, Handwriting and Finger Prints Expert, Patiala as D.W.3. He gave his report Ex.D.1. He examined two questioned thumb impressions, allegedly affixed by Mohinder Singh Marked as Q-1 on the recovery memo Ex. P.C. And Q-2 on the Search memo Ex. PE and compared them with the standard thumb impressions of Mohinder Singh marked as S-1 on the statement dated 23.7.1998 recorded as D.W.1 and S-2 on the summons issued for 30.7.1998. He opined that the thumb impressions marked Q-1 and Q-2 on Ex. PC and Ex.PE have not been affixed by the persons, whose standard thumb impressions are marked S-1 and S-2. He gave his report as Ex.D-1.” The trial Court acquitted the said Hansaraj @ Hansa of the Crl. Revision No. 2417 of 2002 3 charged framed against him. Para 10 of the judgment of the trial Court dated 14.12.1998 reads as under :- “The learned A.P.P. for the State was unable to challenge this opinion give by the document expert, but it was submitted that it is just possible that same person Mohinder Singh Chowkidar, who was associated in the investigation, was not produced as defence witness. I am totally unable to agree with this submission of the learned prosecutor because it is the prosecution itself which has effected service of Mohinder Singh Chowkidar as witness for 10.10.1994 and also for 14.12.1994. The statement of learned A.P.P. for the State recorded in this case, dated 14.12.1994 shows that witness was present in the Court when he as given up as won over and therefore, there cannot be any doubt to his identity. Similarly, his service was effected as defence witness by summons sent through the court. All these summons in original have been kept in a sealed cover by the court so that these cannot be lateron tampered with. The whole version of the prosecution is therefore, demolished when it is clearly found that the evidence regarding joining of Mohinder Singh Chowkidar has been fabricated. For these reasons, I would also proceed against the Investigating Officer and Headconstable Nirmal Singh for having fabricated false evidence in accordance with the provisions of Section 340 of the Criminal Procedure Code.” The learned Additional Judicial Magistrate vide order dated 3.11.2001 held that the petitioners were liable to be prosecuted for an offence under Section 193 of Indian Penal Code (in short 'IPC'). Aggrieved Crl. Revision No. 2417 of 2002 4 by the said order petitioners preferred a revision petition and the learned Sessions Judge dismissed the said revision petition vide impugned order dated 13.9.2002. Hence, the present revision petition. Learned counsel for the petitioners has submitted that the courts below had erred in proceeding against the petitioners under Section 340 of the Code of Criminal Procedure (in short 'Cr.P.C.') read with Section 193 IPC. The petitioners were innocent. The petitioners did not know Mohinder Singh Chowkidar personally. Proper inquiry had not been held by the Magistrate while proceeding against the petitioners under Section 340 Cr.P.C. The complaint field by the Court was not maintainable. Learned State counsel, on the other hand, has submitted that after due preliminary inquiry it was ordered by the learned Magistrate that petitioners were liable to be prosecuted for an offence under Section 193 IPC. Section 340 Cr.P.C. reads as under :- Procedure in cases mentioned in section 195- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been 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, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; Crl. Revision No. 2417 of 2002 5 (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this section, "Court" has the same meaning as in section 195. Section 195 Cr.P.C. reads as under :- Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance- (a) (i) x x x x x x x (b)(i) of any offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) x x x x x x x x (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or Crl. Revision No. 2417 of 2002 6 sub-clause (ii) [except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate]. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. Section 193 IPC reads as under :- Punishment for false evidence. Crl. Revision No. 2417 of 2002 7 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 a 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; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. In the present case, the petitioners had lodged the FIR against Hans Raj @ Hansa under Section 61 of the Act and it was alleged that the accused was distilling illicit liquor with the help of a working Still. However, during trial the learned trial Court found that the thumb impression of Mohinder Singh P.W. on recovery memo Ex.PC and personal search memo Ex.PE did not match with the standard thumb impression. Since the thumb impressions of Mohinder Singh Chowkidar had been fabricated on the memos, the learned trial Court held that it would proceed against the Investigating Officer and Head Constable Nirmal Singh for having fabricated false evidence in accordance with law under provision of Section 340 Cr.P.C. Thereafter, notices were issued to the petitioners by the Magistrate for proceeding against the petitioners under Section 340 Cr.P.C. The petitioners submitted their replies to the said notices and stated that they did not know Mohinder Singh Chowkidar personally. They had met Mohinder Singh Chowkidar for the first time and the said persons had affixed his thumb impression on the recovery memo and the personal search memo. The learned Sessions Judge while dismissing the revision petition filed by the petitioners in para 11 of the order has held as under :- Crl. Revision No. 2417 of 2002 8 “No specific mode of holding an inquiry has been given in Section 340 of the Code of Criminal Procedure. In my view, it cannot be said that the complaint has been lodged in this case against the revisionists by the learned Magistrate without holding an inquiry. He has not filed the compliant merely on account of the observation made by the Magistrate in the Judgment dated 14.12.1998. Rather on the basis of the observations he issue notices to the revisionists. Notices were served upon them. They filed replies. After considering the replies, record and hearing the learned Add. Public Prosecutor for the State and the counsel for the revisionists, he recorded the finding dated 3.11.2001 and ordered that the revisionists be, prosecuted and the complaint be prepared and put up before the learned Chief Judicial Magistrate, Bhatinda. With utmost regard and humality to the authorities referred to above, they are distinguishable on facts. In the case of Hazara Singh Vs. Rattan Singh the Hon'ble Judge held that the Magistrate has to record finding that lodging of the complaint is expedient in the interest of justice. In this case, the learned Magistrate vide his order dated 3.11.2001 while recording finding regarding the filing of the complaint has specifically held that so interest of administration required that they should be prosecuted under Section 193 of the India Penal Code. In my view the filing of the complaint was expedient in the interest of justice. Moreover, it cannot be said that no preliminary inquiry has been held by him before lodging the report, particularly when no mode for holding the preliminary inquiry has been laid down. He held Crl. Revision No. 2417 of 2002 9 the requisite inquiry and thereafter, recorded the finding for lodging the complaint. Accordingly, the complaint has been lodged against the revisionists keeping in view the interest of justice.” The reasons given by the learned Sessions Judge while dismissing the revision petition filed by the petitioners are sound reasons. The petitioners were issued notices by the Magistrate qua proceedings under Section 340 Cr.P.C. Petitioners filed their replies to the said notices. Thereafter, the learned Magistrate, prima facie, found that the petitioners were liable to be prosecuted for an offence under Section 193 IPC. The Court can take cognizance under Section 195 Cr.P.C. in case an offence punishable under Section 195 IPC is alleged to have been committed in or in relation to any proceedings in Court. The complaint could have been filed by the court or a private person as fabricated memos' had been tendered during trial in the trial court. The complaint in the present case filed by the court is maintainable. In these circumstances since, prima facie, it was evident on record that false evidence had been fabricated by the petitioners to be produced in evidence in a judicial proceeding, the learned Magistrate rightly held that the petitioners were liable to be prosecuted for an offence under Section 193 IPC. Learned counsel for the petitioners has failed to point out any miscarriage of justice, which would warrant interference by this Court. Dismissed. (SABINA) November 8, 2010 JUDGE Anand