THE HON’BLE SRI JUSTICE K.C.BHANU Crl. APPEAL NO.623 OF 2003 Date:18.12.2009 Between: State, rep. by the Deputy Superintendent of Police, A.C.B. Rajahmundry ….. Appellant/Petitioner And: Vundavalli Vijayamurty, Contractor, E.G. District. …..Respondent/P.W.1. THE HON’BLE SRI JUSTICE K.C.BHANU Crl. APPEAL NO.623 OF 2003 JUDGMENT: 1. The State, represented by the Inspector of Police, Anti Corruption Bureau, Rajahmundry, filed the present appeal under Section 341(1) of the Code of Criminal Procedure,1973 (for short Cr.P.C) challenging the order, dated 06.02.2003 in Criminal M.P.No.99 of 2003 in C.C.No.46 of 2000 on the file of the III Additional District & Sessions Judge-cum-Special Judge for A.C.B Cases, Visakhapatnam, whereunder and whereby the application filed under Section 340 of the Cr.P.C to prosecute P.W.1 for the offences punishable under Sections 182, or 211 or 193 of the Indian Penal Code, 1860 (for short IPC) was dismissed. 2. P.W.1 (respondent herein) set the criminal law into motion by filing the First Information Report alleging that the accused in C.C.No.46 of 2000 on the file of the III Additional District & Sessions Judge-cum-Special Judge for A.C.B. Cases, Visakhapatnam demanded certain amount as a motive or reward for showing official favour in discharge of his official duties. Basing on the said report, the Anti Corruption Bureau registered a case and laid a trap on the accused officer and ultimately filed the charge sheet. The accused officer was prosecuted for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short ‘Act’). 3. During the course of investigation, the statement of P.W.1 was recorded under Section 164 Cr.P.C by the concerned Magistrate. During the course of trial, P.W.1 who set the criminal law into motion resiled from his earlier statement made to the police and therefore, he was declared hostile by the prosecution. 4. Now the contention of the A.C.B is that P.W.1 intentionally gave false evidence during the course of trial in order to help the accused in the criminal case. Because P.W.1 resiled from his earlier statement and did not support the case of the prosecution, the accused was acquitted. Then A.C.B filed the present application to prosecute P.W.1 for intentional giving false evidence. That petition was dismissed on the ground that it is not expedient to indict P.W.1 merely because there is some inaccuracy in his statement which may be incorrect or false. Challenging the same, the present appeal is filed. 5. Now the point for determination is whether the order of the trial court is correct and proper? 6. The learned senior counsel appearing for the respondent herein contended that the evidence of P.W.1 is not contradictory to the statement made to the police and it is not correct to say that because of his false evidence the accused was acquitted. Therefore, it is not a case where P.W.1 has to be prosecuted and that he deposed falsely with an ulterior motive for helping the accused. 7. He further contended that there is no intention to give false evidence and because of long lapse of time, P.W.1 might not have stated what transpired about six years back, that therefore, the inaccuracy statement cannot be said to be intentionally giving false evidence and the trial court after elaborate consideration of the material on record, rightly dismissed the application and there are no grounds to interfere with the same. 8. Section 340 Cr.P.C reads as follows: “ 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 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,- (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; (d) take sufficient security for the appearance for 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 or by such officer of the Court as the Court may authorize in writing in this behalf. In this section, “Court” has the same meaning as in section 195. From the above provision, it is clear that the Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into the offences referred to in clause (b) of sub-section (1) of section 195 cr.P.C in relation to the proceedings before the Court, the Court may record a finding to that effect and make a complaint thereof in writing. In a judicial sense, justice is nothing more or less than exact unconformity to some obligatory law; and all human actions are either just or unjust as they are inconformity to or in opposition to law. The case of the appellant herein is that having set the criminal law into motion, P.W.1 has given a complete go by to his earlier statement and intentionally gave false evidence in the trial court. Giving false evidence with ulterior motive, so as to help the accused resiling from the earlier statement by itself may not be a ground to lodge a complaint or to order for prosecution for any offence under clause (b) of sub-section (1) of section 195 Cr.P.C. But it must be shown that the witness gave false evidence before the trial court intentionally so as to help the accused. The trial court has not considered that aspect. 9. The scope and ambit of Section 340 Cr.P.C has been considered by the Supreme Court in a decision reported Pritish Vs. State of Maharashtra and others[1] wherein it was held thus: “Be it noted that the court at the stage 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 made into any offence affecting administration of justice. In M.S.Sheriff and anr. Vs. 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 ode. 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 inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.” 10. The learned counsel for the respondent placed reliance on a decision reported in Chajoo Ram Vs. Radhey Shyam and another[2] wherein it was held thus: “The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.” 11. The learned counsel for the respondent relied upon a decision reported in M.S. Ahlawat Vs. State of Haryana and another[3] wherein it was held thus: “Chapter XI of IPC deals with false evidence and offences against public justice and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (Cr.P.C) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193, IPC etc., or to an offence relating to documents actually used in a Court, private prosecutions are barred absolutely and only the Court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195, Cr.P.C. are mandatory and no Court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that Section. It is settled law that every incorrect or false statement does not make it incumbent upon the Court to order prosecution, but to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.” 12. He also relied upon a decision reported in Vadadala Maruthi Hari Prasad Rao alias Maruthi Prasad Vs. Special Judge for SPE & ACB Cases, Vijayawada and another[4] wherein it was held: ”From the above provisions of law, it is also clear that it is only when 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, then only the Court can make a complaint. It is not as a matter of course that as and when the witnesses do not support the case of the prosecution the prosecution for perjury should be sanctioned by the Courts. It is only in those cases where the alleged perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing of false affidavit is an evil, which must be effectively curbed with a strong hand, but to start prosecution for perjury too readily and too frequently without due are and caution and on inconclusive and doubtful material defeats its very object. Because there is some inaccuracy in the statement, which may be innocent or immaterial, the Courts should not react and make a complaint for the offence under Section 195 as provided for under Section 340 of Cr.P.C.” 13. No doubt there is a delay of more than nine years after dismissing the application filed under Section 340 Cr.P.C for prosecuting P.W.1 for giving false evidence. The delay cannot be attributed to the prosecution. Because of pendency of appeal before this Court, the delay has occurred. The object and purpose for which the Prevention of Corruption Act enacted is to curb the corruption which is prevalent in the larger scale among the public officers. Whether P.W.1 intentionally gave false evidence, so as to help the accused, has not been considered by the trial court. Whether the testimony of the P.W.1 is false and in what manner such testimony would affect the case of the prosecution are the matters to be considered by the trial court and those aspects have not been considered by the trial court. 14. In a decision reported in K.Karunakaran Vs. T. V. Eachara Warrier and another[5] it was held thus: “The fact that a prima facie case has been made out for laying a complaint does not mean that the charge has been established against a person beyond reasonable doubt. That will be thrashed out in the trial itself where the parties will have opportunity to produce evidence and controvert each other’s case exhaustively without any reservation. There may be often a constraint on the part of a person sought to be proceeded against under Section 340, Cr.P.C. to come out with all materials in the preliminary enquiry. That constraint will not be there in a regular trial where he will have ample opportunity to defend himself and produce all materials to show that an offence under Section 193, I.P.C has not been made out. That section contemplates that making of a false statement is not enough. It has to be made intentionally. The accused in a trial under Section 193 will be able to place all circumstances bearing upon the ingredient of the intention attributed to him.” 15. Whether prima facie case of giving false evidence intentionally is made out or not and whether in the interest of justice, it is expedient to prosecute P.W.1, are the matters to be determined by the trial court in accordance with law. Therefore, the trial court has not given any reasons in the impugned order that the prima facie case of giving false evidence is not made out, but simply held that in the interest of justice, it is not desirable to prosecute P.W.1. Hence the impugned order is liable to be set aside. 16. Accordingly, the Criminal Appeal is allowed setting aside the impugned order, dated 06.02.2003 in Criminal M.P.No.99 of 2003 in C.C.No.46 of 2000 on the file of the III Additional District & Sessions Judge- cum-Special Judge for A.C.B Cases, Visakhapatnam. However, the matter is remanded back to the trial court for fresh consideration in accordance with law after giving due opportunity to both parties. _______________ K.C.BHANU,J. Date:18.12.2009. Gk. THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.623 OF 2003 Date:18.12.2009. Gk. [1] AIR 2002 Supreme Court 236 [2] AIR 1971 Supreme Court 1367 [3] AIR 2000 Supreme Court 168 [4] 2007(1) ALD (Crl.) 405(AP). [5] AIR 1978 Supreme Court 290