Himansu Shekhar Sharma vs The State of Bihar

I.P. Singh, J.—This is an application in revision under sections 397 and 401 of the Code of Criminal Procedure (in short ''the Code''). It is for partly setting aside the order dated 18.9.1997 passed by Shri M.L. Chaudhary, Additional Sessions Judge, I Barh in S.T.N. No. 31195 (State vs. Ramphal Yadav and others) by which the petitioner being the informant was taken into custody and remanded to jail. That allegation against the present petitioner is that the Sukhdeo Yadav an accused in the aforesaid sessions case did not appear before the court on the dates fixed. In his place some body else appeared and inpersonated for him. 11.9.1997 was the date fixed in the sessions trial. It is alleged that on this date also accused Sukhdeo Yadav did not appear before the court and in his place some body else has appeared. It is contended on behalf of the petitioner that on this date also he had pointed out this fact to the learned court. On the next date (18.9.1997) again he had drawn the attention of the court to this fact. The present petitioner was the informant in this session case which was also u/s 302 of the Indian Penal Code. He was examined before the court as P.W. 5 on 23.5.1996 in which he had named Sukhdeo Yadav as one of the accused. On 11.9.1997 the accused persons were examined in the court u/s 313 of the Code but in place of accused Sukhdeo Yadav another person personating for Sukhdeo Yadav got himself examined under this section alongwith other accused persons of the case. This fact was pointed out by the petitioner on that date but the court did not take any action since the Advocates of the court were mourning the sad demise of one of their colleague Shri Raj Kumar Prasad and the court also could not function for whole day due to his sad demise.

When again on 18.9.1997 the aforesaid stranger personating for Sukhdeo Yadav appeared before the court the informant told the court that the person appearing as accused Sukhdeo Yadav in the dock is not the actual Sukhdeo Yadav but he is personating for Sukhdeo Yadav. Also he pointed out to the court that even on 11.9.1997 he has drawn the attention of the court to this fact. The learned Additional Sessions Judge thereafter conducted an enquiry and recorded the statement of the petitioner on 18.9.1997 in which he has reiterated his earlier stand that even on 11.9.1997 he has drawn the attention of the court to the fact that the person examining himself as Sukhdeo Yadav u/s 313 of the Code is not the real person.

Learned Additional Sessions Judge, however, by his order dated 18.9.1997 took the petitioner into custody and remanded him to jail for making false statement. Also he ordered to institute a complaint case against the present petitioner.

On behalf of the petitioner it has been submitted that this order is against the material available on record and also contrary to the principles of law. The learned Additional Sessions Judge should not have ordered to initiate any proceeding against the petitioner and should not have put him behind the bar because it was the petitioner who had pointed out to the court that a stranger was personating for accused Sukhdeo Yadav and had also got himself examined u/s 313 of the Code and had thus played a fraud on the court. The learned Additional Sessions Judge should have ordered to initiate a proceeding only against the person so impersonating for Sukhdeo Yadav and not against the present petitioner. This order of the learned Additional Sessions Judge is completely without jurisdiction and against the provision of law. On these grounds it has been contended that the impugned order by which the present petitioner was taken into custody and according to which a complaint case against him was ordered to be filed before the Addl. Chief Judicial Magistrate, Barh be set aside.

I have heard the parties in detail. Before proceeding any further in the matter I would like to briefly refer to the impugned order, from which it would appear that the present petitioner who was the informant in the case had appeared and informed the court that Sukhdeo Yadav who was present in the court is not the genuine person. Also it appears from the impugned order that the present petitioner had drawan attention of the court to this fact even on 11.9.1997 at the time of the examination of the person impersonating for Sukhdeo Yadav u/s 313 of the Code. The learned court, however observed that on 11.9.1997 neither and petition has been filed on behalf of the informant to this effect nor any submission has been so made on his behalf. Thus the court concluded that the preset petitioner was intentionally making false statement. Accordingly his statement was recorded in the court in which also for had reiterated his earlier statement. The learned Advocate appearing on behalf the accused Sukhdeo Yadav had also submitted before the court on that dated that if the person appearing as Sukhdeo Yadav is not the real person he may taken into custody. He was, according taken into custody. Also on a company the signature of Sukhdeo Yadav as give on the statement u/s 313 of the Code did not tally with his signature the Vakalatnama and the bail bond. The is how the present petitioner as also the person impersonating as Sukhdeo Yadav were taken into custody.

I have given serious considerate. to the impugned order passed by the learned Additional Sessions Judge It may be noted that the Additional Session Judge is a Senior Judicial Officer and the expected that at least he will pass proper order. By this order he had taken present petitioner in custody on the ground that he had intentionally give false statement in the court to the effect that on 11.9.1997 also he had pointed,the to the court that the person who was being examined u/s 313 of the Code as Sukhdeo Yadav is not the genuine person. As a matter of fact the present petitioner being the information of the case the court should have toll obliged if this fact was brought to is notice that the person being examine u/s 313 of the Code as Sukhdeo Yadav was not the genuine not son. Even in the impugned order. The learned court had mentioned that the learned Advocate appearing on behalf of the accused Sukhdeo Yadav had conceded that if this accused is not actually Sukhdeo Yadav he may be taken into custody. This shows that even the lawyer appearing on behalf of Sukhdeo Yadav was not able to confirm that the person who was impersonating for Sukhdeo Yadav was the real person. Further from this paragraph of the impugned order it would appear that the signature of Sukhdeo Yadav as given on the statement u/s 313 of the Code did not tally with his signature appearing on the Vakalatnama and the bail bond filed on his behalf. These circumstances were sufficient to show that there was some truth in the allegation made by the present petitioner that the person who was being examined u/s 313 of the Code was not really Sukhdeo Yadav but somebody else. Instead of feeling obliged for the assistance given to the court the learned Additional Sessions Judge, however, took the present petitioner in custody in a manner which was neither lawful nor proper. He treated him also to be an accused in the case and remand him to jail custody as will appear from the impugned order.

In this connection it may be mentioned that the allegation against the present petitioner of giving false evidence in the court may be said to be punishable u/s 193 of the Code. This section is bailable. If the offence as described u/s 177 of the Code for furnishing false information is taken into consideration this offence is also bailable. Moreover this section will not apply because here the informant was not legally bound to furnish any information to the court or to any public servant. Coming to section 181 of the Indian Penal Code this section deals with the making false statement on oath to a public servant. The offence under this section is committed when a false statement is made on oath before a public servant by a person which he either knows or believes it to be false or does not believe it to be true. This offence is also bailable. So far as the offence u/s 182 is concerned this is also bailable. The allegation made against the present petitioner do not make out an offence u/s 228 of the Indian Penal Code and even this offence is bailable.

In this connection I would like to briefly refer to the law on the subject. I will firstly refer to section 345 of the Code. This section provides the procedure in certain cases of contempt. It says that when any offence as described in section 175, 178, 179, 180 or 228 of the Indian Penal Code is committed in the view or presence of court, the court may cause the offender to be detained in custody. In the present case no offence under any of these section has been alleged against the present petitioner. Hence properly speaking he could not have been taken into custody by the court as has been done in the present case. The other limitation of section 345 of the Code is that after taking that person into custody the court at any time before rising on the same day has to take cognizance of the offence. In the present case as will appear from the impugned order no cognizance of the offence as required u/s 345 of the Code has been taken. Further section 345 requires that offender has to be given a reasonable opportunity of showing cause why he should not be punished under this section. In the present case this has also not been done. Then this section provides that the court while exercising the power under this section can punish the offender with fine not exceeding two hundred rupees and in default of payment of fine, to simple imprisonment for a term which may extend to one month. It is thus, clear that the provision of section 345 of the Code were not complied with by the learned Additional Sessions Judge and the procedure adopted by him as will appear from the. impugned order shows his utter ignorance of law on this point. He has not cared to look into this section and to try to follow its provision. Taking any person in custody and depriving him of his personal liberty is a serious matter and the learned court below has dealt with it in a very casual manner. He has not taken pains to examine the provision of law before taking the petitioner in custody

The impugned order shows that the learned court below has directed for filing a complaint petition before the competent court. This takes us to the provision of section 346 of the Code. According to which if the court considers that a person accused of any of the offences referred to in section 345 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine or that a fine exceeding two hundred rupees should be imposed upon him. The court after recording the facts constituting the offence may forward the case to a Magistrate having jurisdiction to try the same and may require security to be given for the appearance of such person before such Magistrate, only if sufficient security is not given the court shall forward such person in custody to such Magistrate. I have already noticed above that the offences mentioned in section 345 of the Code have not been alleged against the present petitioner. Hence the case does not fall either under sections 345 or 346 of the Code. So far as section 346 of the Code is concerned it does not provide for immediately taking any person in custody. On the order hand the case has to be forwarded to Magistrate and the offender has to be required to furnish security for his appearance before such Magistrate. It is only when the offender fails to give sufficient security that he may be forwarded in custody to such Magistrate. Under the aforesaid circumstances it becomes perfectly clear to me that the Magistrate could not have taken the petitioner in custody under the facts and circumstances of this case and he has behaved in a irresponsible manner in the matter.

From the impugned order it would appear that the learned Additional Sessions Judge had directed that a complaint petition be filed in the court of Addl Chief Judicial Magistrate, Barh for taking action against the petitioner in accord ance with law. This takes us to the consideration of section 340 of the Code which provides the procedure in the cases mentioned in section 195 according to which if any court is of the opinion that it is expedient in the interest of justice that an enquiry should be made in any offence referred to in clause (b) of subsection (1) of section 195 which appears to have been committed in or in relation to a proceeding in that court. Such court may after preliminary enquiry record a finding to that effect, making complaint thereof in writing and send it to a Magistrate of the 1st Class having jurisdiction. It further provides that the court at the time of sending the case to the Magistrate shall take sufficient security for the appearance of the accused and if alleged offence is non bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate. Before proceeding any further I would like to briefly refer to the offences mentioned in section 195(1)(b) which make a mention of section 198 also. If as alleged the offence u/s 193 of the Indian Penal Code was committed by the present petitioner then it would fall u/s 195(1)(b) of the Code as noticed above. In such a situation the court has to record a finding and to make a complaint in writing about the offence alleged to have been committed and it is only in the cases of non-bailable offences that the Magistrate can take the offender in custody. In the present case this procedure has not at all been followed. Moreover it has already been noticed above that all the probable allegation made against the petitioner are bailable and, therefore, he could not have been taken into custody even on the strength of section 340 (1)(d) of the Code. It is, thus, perfectly clear to me that by passing the impugned order the learned Additional Sessions Judge have not followed the mandatory provision of law and by his wrong order has illegally taken a person in custody and has deprived him of his liberty. Thus clearly the impugned order can not be sustained in the eyes of law.

Before concluding, however, I would like to refer one or two other points which appear from the impugned order and which deserve my comments. The learned Additional Sessions Judge has mentioned in the impugned order that from the perusal of the case record it appears that on 11.9.1997 no petition was filed on behalf of the present petitioner drawing the court''s attention to the fact that a stranger was being examined u/s 313 of the Code in place of accused Sukhdeo Yadav. It is no body''s case that on this date the petitioner had filed any such petition. Further the court has observed that on perusal of the case record it would appear that on this date no such submission has been made on behalf of the present petitioner. The petitioner was examined on oath in the court in which also he had stated that he had made such a statement on 11.9.1997 also. If this statement has been made on oath the court should not have brushed it aside and disbelieved it simply because in the record he did not mention any such submission made on behalf of the petitioner in the court. It is well known that it was for the learned Judge to record the oral submissions made on behalf of any person including the informant. If he has not recorded any such submission how could the informant help in the matter in getting any such statement recorded. It was open to the court to record or not to record it. However, informant has clearly stated on oath that he has made this statement before the court and the same could not have been disbelieved in the casual manner in which it has been done by the learned court below. Also the learned court rushed to the conclusion that the petitioner had intentionally given false statement before the court. This was a serious allegation and the learned court below should not have treated it so light specially when in the later part of the impugned order he has himself observed that even the Advocate appearing on behalf of the accused Sukhdeo Yadav was not in a position to confirm that the person appearing as Sukhdeo Yadav was a genuine person. On the other hand on comparison of the signatures of Sukhdeo Yadav on the Vakalatnama and bail bond did not tally with his signature appearing on the statement made u/s 313 of the Code. Still for the reasons best known to the learned Additional Sessions Judge he rushed to the conclusion that the petitioner had made a false statement and took steps by taking him into custody. From the detailed discussions made above it becomes clear to me that the impugned order can not be allowed to stand. It is perverse and against provisions of law. It is, accordingly, quashed and this application is allowed.