Crl.Revision No.260 of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Rev.No.260 of 2003 Date of decision:30.4.2010 Amrik Singh and another ... Petitioners versus Punjab and Haryana High Court, Chandigarh ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.D.S.Malwai, Advocate, for the petitioners. Mr.Karminder Singh, for the respondent. ... JORA SINGH, J. Amrik Singh son of Pahla Singh and Rajwant Singh son of Sardara Singh, residents of Village Bohra, District Hisar, preferred this revision to impugn the judgment dated 25.1.2003 rendered by Additional Sessions Judge (I), Rohtak. By the said judgment, judgment dated 2.2.2001 and order of sentence dated 5.2.2001 passed by CJM, Rohtak, was upheld. Vide judgment dated 2.2.2001 and order of sentence dated 5.2.2001, petitioners were convicted under Sections 193 and 196 IPC and were sentenced to undergo RI for seven years and to pay a fine of Rs.1250/-, in default of payment of fine, to further undergo imprisonment for six months, each under Sections 193 and 196 IPC, respectively. However, both the sentences were ordered to run concurrently. Prosecution story in brief is that FIR No.125 dated 19.2.1988 was registered in view of the statement of Amrik Singh on the allegation Crl.Revision No.260 of 2003 2 that on 18.2.1988 at about 9.00 PM, Balbir Singh was murdered by Satish Kumar @ Chhanga and Ishwar Dayal @ Bittu in the presence of Amrik Singh, Rajwant Singh, Lachhman Dass and Smt. Satya wife of Balbir Singh. Challan was presented against Satish Kumar @ Chhanga. Amrik Singh and Rajwant Singh appeared as PWs and supported the prosecution story, but ultimately Satish Kumar @ Chhanga was acquitted of the charge levelled against him vide judgment dated 24.3.1989. Ishwar Dayal @ Bittu was tried later on separately. Amrik Singh and Rajwant Singh appeared as PWs, but both were declared hostile. Ultimately, Ishwar Dayal @ Bittu was convicted under Section 302 IPC vide judgment dated 23.1.1995 and sentenced to undergo life imprisonment and to pay a fine of Rs.500/-. Against the judgment of conviction and sentence, appeal was preferred by Ishwar Dayal but vide judgment dated 27.8.1997 appeal was dismissed by Hon'ble Division Bench of the High Court. Before parting with the judgment, Hon'ble Division Bench observed as under:- “We would like to mention that from the depositions made by PWs 2 and 6, we are quite convinced that they are guilty of giving false evidence. They were legally bound by an oath to state the truth and yet they made a false statement and they knew that they were making a false statement. Whoever intentionally gives false evidence at any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, can be punished with imprisonment of either description which may extend to seven years and shall also be liable to fine. If in a Crl.Revision No.260 of 2003 3 serious matter, like murder, a witness gives false evidence having been won over by the accused, it would be a great impediment in administering justice. It may be recalled that it is with a view to save PW2 from the wrath of appellant that Balbir Singh became a victim himself and yet, without caring that Balbir Singh had laid his life for him, Amrik Singh shamefacedly not only resiled from his statement made before the police but even from the statement made in the Court. In our view, both Amrik Singh, PW2 and Rajwant Singh, PW6 are guilty of giving false evidence. Let a complaint through the Registrar of this Court be lodged against them and they be accordingly tried. Obviously, the concerned Magistrate shall deal with the matter being totally uninfluenced of observations and, even for that matter, findings recorded by us.” As per direction of Hon'ble Division Bench, complaint was instituted by Registrar General of the High Court. In the complaint case under Sections 193 and 196 IPC, both the petitioners appeared and in their presence, evidence was recorded. Ultimately, they were convicted under Sections 193/196 IPC and sentenced as stated aforesaid. I have heard learned counsel for the petitioners, respondent and gone through the evidence on the file. Learned counsel for the petitioners argued that as per complaint, petitioners have committed offence punishable under Sections 193/196 IPC, but after decision of Hon'ble High Court, proper procedure was not followed. Complaint was to be instituted under Section 195 Cr.P.C. Crl.Revision No.260 of 2003 4 and to present complaint, procedure laid down under Section 340 Cr.P.C. was to be followed. While directing Registrar General to present complaint, Hon'ble Division Bench did not opine that it is expedient in the interest of justice to present the complaint. No opportunity was given to the petitioners to explain their position. Before filing the complaint, enquiry should have been made. When there is no enquiry before filing the complaint, then whole trial is vitiated. Petitioners were denied of their valuable right to file appeal against the order of Hon'ble Division Bench. Revisional Court is not to re-assess or re-evaluate the evidence on file but when the impugned order is perverse and against law, and evidence on the file was misread, then Revisional Court certainly has the power to interfere. In support of his contentions, learned counsel for the petitioners cited the following authorities:- (i) AIR 1954 SC 397, M.S.Sheriff and another vs. State of Madras and others; (ii) 1998(4) RCR (Crl.) 518, Hazara Singh vs. Rattan Singh; (iii) 1999(4) RCR (Crl.) 718, M.S.Ahlawat vs. State of Haryana; (iv) 2002(1) RCR (Ctl.) 92, Pritish vs. State of Maharashtra, and (v) 2003(2) RCR (Crl.) 64, Badan Singh and another vs. Sh.R.K.Sondhi, Judicial Magistrate Ist Class, Hisar, and another. Lastly, learned counsel for the petitioners argued that if the Court is of the opinion that proper procedure was adopted, then a lenient view may be taken. Both the petitioners have already undergone one month and eighteen days. They are the first offenders and belong to poor families. Murder of Balbir Singh was on 18.2.1988. When appeared in Court, Amrik Crl.Revision No.260 of 2003 5 Singh and Rajwant Singh were 25 years and 30 years old, respectively. As per order of Hon'ble High Court, complaint was presented on 12.8.1998. Petitioners have already suffered financially as well as mentally. Learned counsel for the respondent argued that two accused namely Satish Kumar @ Chhanga and Ishwar Dayal @ Bittu had murdered Balbir Singh. Satish Kumar was arrested and tried. Amrik Singh and Rajwant Singh appeared as PWs and supported the prosecution story by saying that in their presence, Balbir Singh was murdered by Satish Kumar and Ishwar Dayal. Unfortunately, Satish Kumar was acquitted vide judgment dated 24.3.1989. Ishwar Dayal was tried later on. Both the petitioners appeared as PWs but did not support the prosecution story. On the basis of evidence on file, Ishwar Dayal was convicted and sentenced. While hearing the appeal, Hon'ble Division Bench rightly observed that Amrik Singh and Rajwant Singh are guilty of giving false evidence. As per direction of the Division Bench, Registrar General filed complaint against the petitioners. Against the order of Hon'ble High Court, no appeal by the petitioners. After that, opportunity was given to the petitioners to lead evidence by the trial Court. Under Section 195 Cr.P.C., complaint was to be instituted but before filing the complaint, not necessary that in each case, there is to be an enquiry under Section 340 Cr.P.C. In case the petitioners were aggrieved with the finding of the Hon'ble Division Bench, then they could easily challenge the order, but till today order was not challenged. Admittedly, Balbir Singh, landlord of Amrik Singh, petitioner, was murdered and according to the prosecution story, occurrence was witnessed by Amrik Singh and Rajwant Singh along with two other eye witnesses. When Satish Kumar was being tried, then petitioners had Crl.Revision No.260 of 2003 6 appeared as PWs and fully supported the prosecution story. When challan was presented against Ishwar Dayal, then both the petitioners appeared as PWs but failed to identify the accused. Both were declared hostile. Keeping in view the evidence on the file, Ishwar Dayal was convicted and sentenced as stated aforesaid. Judgment of Sessions Court was challenged by Ishwar Dayal, but appeal was rejected by the Hon'ble High Court. While deciding the appeal, direction was given to Registrar General to file complaint against the petitioners for making false statements in Court. When a witness gives false evidence, then he is liable for punishment under Section 193 IPC. Section 193 IPC reads as under:- “193. Punishment for false evidence.- Whoever intentionally gives false evidence in any stage of 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; 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.” When offence punishable under Section 193 IPC is committed by giving false evidence, then complaint is to be filed. Relevant Sections to file complaint are Sections 195 and 340 Cr.P.C., relevant portions thereof are reproduced as under:- “195 . Prosecution for contempt of lawful authority of public servant, for offences against public justice and for Crl.Revision No.260 of 2003 7 offences relating to documents given in evidence.- (1) No Court shall take cognizance- ( a) xx xx xx (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) xx xx xx (iii) xx xx xx (except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.” xx xx xx” “340. Procedure in cases mentioned in section 195.- (1) When, upon an application made to it in this behalf or otherwise, any Court is of the opinion that it is expedient in the interest 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,- xx xx Crl.Revision No.260 of 2003 8 (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. xx xx xx” Sole contention of learned counsel for the petitioners is that before filing complaint by the Registrar General, there was no enquiry under Section 340 Cr.P.C. When proper procedure was not followed, then impugned judgment is liable to be set aside. In M.S.Sheriff and another's case (supra), Hon'ble the Supreme Court in para Nos.12 and 13 of the judgment observed as under:- “12. As there is a right of appeal we have next to consider the matter on its merits and there the only relevant consideration is whether “it is expedient in the interests of justice” that an enquiry should be made and a complaint filed. That involves a careful balancing of many factors. 13. The High Court has scrutinized the evidence minutely and has disclosed ample material on which a judicial mind could reasonable reach the conclusion that there is matter here which requires investigation in a criminal court and that it is expedient in the interests of justice to have it enquired into. We have not examined the evidence for ourselves and we express no opinion on the merits of the respective cases but Crl.Revision No.260 of 2003 9 after a careful reading of the judgment of the High Court and the report of the District Judge we can find no reason for interfering with the High Court's discretion on that score.” In Hazara Singh's case (supra), this Court in para No.8 observed as under:- 8. There is another way of looking at the matter. Learned Judicial Magistrate did not record any finding that lodging of the complaint was expedient in the interest of justice. Section 340 of the Code reveals that this is a fundamental requirement before a complaint under Section 340 of the Code is lodged. The question had been considered by Delhi High Court in the case of K.K.Khanna and another v. M/s Expo Enterprises India, New Delhi and others, 1984(2) RCR (Crl.) 360: 1984 Criminal Law Journal 1723. In paragraph 6 of the judgement, it was held as under:- “Thus, in the impugned order the learned Addl. District Judge has failed to record that the lodging of the complaint against the appellants would be expedient in the interest of justice and that he was quite certain about the conviction of the appellant therein. The absence of this plain finding vitiates the impugned order.” In M.S.Ahlawat's case (supra), accused fabricated false case before Supreme Court and was convicted under Section 193 IPC by the Supreme Court, but conviction was set aside by observing that Court where the record was fabricated not competent to convict the accused- Court has to send a complaint to competent Court having jurisdiction by adopting Crl.Revision No.260 of 2003 10 procedure under Sections 195, 340 Cr.P.C. Facts of above case were that Writ Petition (Criminal) Nos.356- 57 of 1996 were disposed of vide order dated 17.1.1996. While disposing of the writ petitions, Hon'ble Supreme Court held that petitioner M.S.Ahlawat has deliberately fabricated false records. He was held punishable under Section 193 IPC and also for contempt of Court under Article 129 of the Constitution of India and was directed to undergo RI for one year under Section 193 IPC and to undergo RI for six months under Article 129 of the Constitution of India. Both the sentences were ordered to run concurrently. Petitioner has undergone the sentences of imprisonment imposed by the Court under the said two provisions. M.S.Ahlawat had reported on 5.11.1993 when Writ Petition (Criminal) Nos.356-57 of 1996 were being heard that his signature on the affidavit filed in this case has been forged. After considering two affidavits filed on 2.11.1993 and 5.11.1993, purported to have been made by the petitioner, District Judge was directed to make detailed enquiry about the alleged forgery. District Judge reported that petitioner was not responsible for the same. After going through the report of District Judge, enquiry was entrusted to CBI. On 10.7.1995, notice was issued to M.S.Ahlawat as to why he should not be considered for conviction for forgery and making false statements at different stages in the Court and for committing contempt of this Court. On 17.1.1996, review petition was filed but the same was dismissed vide order dated 29.3.1996. Relevant portion of para No.6 of the judgment is reproduced as under:- “Provisions under Section 195 Cr.P.C. are mandatory and no Court can take cognizance of offences referred to therein. It is Crl.Revision No.260 of 2003 11 in respect of such offences the Court has jurisdiction to proceed under Section 340 Cr.P.C. and a complaint outside the provisions of Section 340 Cr.P.C. cannot be filed by any civil, revenue or criminal Court under its inherent jurisdiction.” In Pritish's case (supra), Hon'ble Supreme Court in para Nos.12 to 16 of the judgement observed as under:- 12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged. 13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom the court might file a complaint before the magistrate for initiating prosecution proceedings. Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry. 14. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make Crl.Revision No.260 of 2003 12 a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity ( to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would be accused. In any event appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier. 15. Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the state of deciding whether such person should be proceeded against or not. 16. Be it noted that the court at the state envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be Crl.Revision No.260 of 2003 13 made into any offence affecting administrate of justice. In M.S. Sheriff and anr. v. State of Madras and ors., AIR 1954 SC 397 a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires by a criminal court and it is expedient in the interest of justice to have it inquired into.” In Badan Singh and another's case (supra), Indian Penal Code, Section 193- Evidence given by a person- Court lodged a complaint under Section 193 IPC on the ground that evidence was false- Complaint quashed- No prior enquiry held to find out that evidence was false and lodging of the complaint was expedient in the interest of justice. After going through the authorities cited by learned counsel for the petitioners, I am of the opinion that by filing complaint under Section 195 Cr.P.C. by the Registrar General without an enquiry under Section 340 Cr.P.C., no prejudice was caused to the petitioners because statements of the petitioners are on the file. Petitioners had supported prosecution story when Satish Kumar was being tried qua murder of Balbir Singh. While appearing as PWs, they had categorically stated that Balbir Singh was murdered in their presence by Satish Kumar @ Chhanga and Ishwar Dayal @ Bittu, but when challan was presented against Ishwar Dayal @ Bittu, then both the petitioners while appearing as PW2 and PW6, respectively, failed Crl.Revision No.260 of 2003 14 to identify accused, namely, Ishwar Dayal @ Bittu. Both the witnesses were confronted with their statements recorded under Section 161 Cr.P.C. and in the Court when they had appeared as PWs when Satish Kumar @ Chhanga was facing trial. In the present case, as per direction of Hon'ble Division Bench, complaint was filed by the Registrar General. Question is whether enquiry under Section 340 Cr.P.C. is mandatory before filing the complaint. No authority was cited by learned counsel for the petitioners that when complaint is to be instituted under Section 195 Cr.P.C., then before filing complaint, enquiry under Section 340 Cr.P.C. is mandatory. Petitioners had a right of appeal against the order of Hon'ble Division Bench but till today no appeal or revision. While disposing of the appeal filed by Ishwar Dayal @ Bittu, Hon'ble Division Bench had rightly scrutinised the evidence and ordered the Registrar General to file complaint. Both the petitioners appeared in Court as prosecution witnesses, then categorically stated that knife blows were given by Ishwar Dayal to Balbir Singh in their presence and other witnesses, but when they appeared as witnesses when Ishwar Dayal was facing trial, then stated that knife blows were given to Balbir Singh. Name of the second accused was Satish Kumar but they cannot identify the accused now facing trial, i.e., Bittu. Both have admitted that earlier they had appeared as witnesses, but stated that they cannot furnish the explanation as to why there is difference between their statements recorded in the Court and the earlier statements. While holding enquiry under Section 340 Cr.P.C., no finding is required to be given regarding guilt or innocence of the person. To file complaint, not mandatory to hold preliminary enquiry if the Court can form Crl.Revision No.260 of 2003 15 an opinion that offence was committed, when accused has a right of appeal under Section 341 Cr.P.C. after the complaint before the Magistrate, and order of Hon'ble High Court was not challenged. Then I am of the opinion that no prejudice was caused to the petitioners, if no enquiry under Section 340 Cr.P.C. Direction was given to the Registrar General to file complaint when Hon'ble Division Bench was disposing of the appeal keeping in view the statements of petitioners when appeared in Court, firstly when Satish Kumar @ Chhanga was facing trial, and second time, when Ishwar Dayal @ Bittu was facing trial. First time, both the petitioners have categorically stated that knife blows were given by Ishwar Dayal @ Bittu, but when second time appeared, then failed to identify the accused. No doubt, in the order of Hon'ble High Court, no specific line that it is expedient in the interest of justice to have the matter enquired into, but direction was given to file complaint when statements of the petitioners when appeared twice in Court were contradictory qua the identity of accused. Balbir Singh was murdered in the year 1988; direction of Hon'ble High Court to file complaint was as per judgment dated 27.8.1997; complaint was instituted on 12.8.1998; petitioners Amrik Singh and Rajwant Singh, when appeared in Court, were 25 years and 30 years old, respectively; both the petitioners are the first offenders and belong to poor families. Maximum sentence to be