IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMMO No. 103 of 2008 & Cr.MP No. 629 of 2008 in Criminal Appeal No.86 of 1994 Date of decision : October 13, 2008 (1) Cr. MMO No. 103 of 2008 Kewal Krishan Versus State of H.P. & Ors. (2) Cr.M.P. No. 629 of 2008 Vikram Sharma & Ors Versus State of H. P. & anr. Coram The Hon’ble Mr. Justice Surjit Singh, J. Whether approved for reporting1 For the Petitioner-applicant : Mr. Ajay Sharma, Advocate. For the respondent-State : Mr. P.M. Negi, Deputy A.G. Surjit Singh, Judge( Oral ) These two petitions are being disposed of together by a common judgment, because both of them arise out of the same matter i.e. Criminal Appeal No. 86 of 1994. Relevant facts may be stated thus. A case was instituted by Police Station, Amb against the present petitioner and seven other persons at the instance of respondent Vikram Sharma, under Sections 148, 149, 323 and 395 IPC. Learned Sessions Judge, Una, who tried the case, ultimately acquitted the present petitioner and his co-accused, numbering seven. In the course of his judgment, the Learned Sessions Judge observed that the present respondents No. 2 to 5 had given false evidence in the court. Appeal against that judgment of the Learned Sessions Judge was filed in this 1 Whether reporters of local Papers may be allowed to see the judgment? …2… court, which was dismissed. The present applicant filed an application before the Learned Sessions Judge, under Section 340 Cr.P.C., seeking prosecution of respondents No. 2 to 4 under Section 211 IPC, for instituting a false case against them, through the police. Learned Sessions Judge allowed that application. The reasoning given is contained in para-4 of the order of the Learned Sessions Judge. The same is that respondents No. 2 to 5 made false statements, on oath, willfully in the court. Again in para-5, the Learned Sessions Judge observed that “in our witness based system of law the menace of perjury is becoming routine (sic)”. This order of the Learned Sessions Judge was challenged by filing appeal, under Section 341 Cr.P.C., by respondents No. 2 to 4. In that appeal, the present petitioner and other persons, who were ordered to be prosecuted, were not impleaded. The matter was heard and finally disposed of by this Court vide order dated 30th May, 2008. The appeal was accepted and the order of the Sessions Judge was set aside. View taken by this court was that as per observation of the learned Sessions Judge this was a case of perjury and not of institution of a false case. 2. After the passing of the order by this court, accepting the appeal, under Section 341 Cr.P.C., Judicial Magistrate, in whose court complaint, under Section 211 I.P.C., had been filed pursuant to the order of the Sessions Judge, dropped the proceedings, on being shown a certified copy of the judgment of this Court. 3. CrMMO No. 103 of 2008 has been filed for review of this court’s order dated 30th May, 2008 and Cr.MP No. 629 of 2008 in Criminal Appeal No. 86 of 1994 has been filed for setting aside the order of the Judicial Magistrate whereby the proceedings in the …3… complaint have been ordered to be dropped. It is submitted by the learned counsel that petitioner and other persons, who were prosecuted, having not been made party, the appeal, under Section 341 Cr.P.C., was not competent and that in any case, the order passed by this Court in appeal without hearing the petitioner and other persons, prosecuted along with him, cannot be said to be legal order, because it was passed without affording any opportunity of being heard to them. On being told that the order of the Sessions Judge being contrary to law had not been upheld, he has submitted that even though the Learned Sessions Judge in his order made the observations that respondents No. 2 to 5 had made false statements and committed the offence of perjury, yet in substance what he wanted to convey was that the case instituted against the applicant and his co- accused was false and therefore, respondents No. 2 to 5 were liable to be prosecuted, under Section 211 I.P.C. 4. It is true that petitioner and other seven persons, who were prosecuted at the instance of respondent Vikram Sharma, had not been made party to the appeal under Section 341 Cr.P.C. and thus, they did not have the opportunity of opposing the appeal, but so far as the merits of the case are concerned, it is clear from the order of the Sessions Judge, passed under Section 340 Cr.P.C., which has been read out by the learned counsel for the petitioner, that the Learned Sessions Judge was of the view that the respondents No. 2 to 4 had made false statements, on oath, in the court during trial and it was for this act of theirs (which amounts to an offence of perjury) that the Learned Sessions Judge recorded the satisfaction that it was in the interest of justice to prosecute them. Now, when the offence committed by respondents No. 2 to 5 , in the opinion of the Learned …4… Sessions Judge, was that of perjury, how could the said respondents have been ordered to be prosecuted for institution of a false case, under Section 211 I.P.C. In view of the above said position, I do not think this to be a fit case for exercise of inherent powers, under Section 482 Cr.P.C. Consequently, both the CrMMO and Cr.MP are disposed of. ( Surjit Singh ), J October 13, 2008(vs)