Man Singh vs State and Others

Bansi Lal Bhat, J.—Petitioner, serving as Sub-Inspector of Police and posted as SI, Police Post Ramsoo Tehsil and District Ramban at the

relevant time, is aggrieved of order dated 10-3-2010 passed by respondent No. 2 learned Judicial Magistrate 1st Class, Banihal in File No.

178/Challan titled State v. Mohd. Iqbal by virtue whereof the learned Magistrate directed registration of FIR against the petitioner for having

allegedly forged the signatures of witnesses to the seizure memo and for having changed the weapon of offence. The impugned order is said to

have been passed during the trial of the case when the prosecution evidence was in pipeline and the stage of delivery of judgment was yet to arrive.

The impugned order is said to be untenable and unsustainable. Heard.

It appears that the petitioner had conducted investigation in case registered under FIR No. 215/2009 of Police Station Banihal which had been

registered on the basis of a written report filed by one Imtiyaz Ahmed alleging that he was waylaid while going to his fields and assaulted by the

accused--Mohd. Iqbal and his wife Gulshan Begum causing injuries upon his person with a knife. The investigation appears to have culminated in

filing of charge-sheet against the accused for offence under Sections 341/323/34, RPC with an addition of offence under Section 324, RPC

against accused--Mohd. Iqbal. While the trial was in progress, P.Ws.--Imtiyaz Ahmed, Mohd. Yousuf and Mohd. Irshad appeared in the witness

box and testified that the Investigating Officer had forged the signatures of witness to the seizure memo and changed the weapon of offence and the

seizure memo. It is on the basis of the testimony of these three witnesses that the trial Court recorded its opinion that commission of offences of

forgery and causing of disappearance of evidence were disclosed against the Investigating Officer i.e. the petitioner herein. The trial Court passed

the impugned order while recording minutes of proceedings, by virtue whereof it directed Officer In-charge of Police Station Banihal to register

FIR under appropriate Sections of law and investigate the case under Section 156(3), Cr.P.C. The trial Court also directed that the proceedings in

the case shall be put on hold till investigation is made.

Trial Court appears to have ignored the mandate of Section 479-A, Cr.P.C. which lays down the procedure in certain cases of false evidence.

Section 479-A, Cr.P.C. inter alia, provides that when a criminal Court is of opinion that any person has intentionally fabricated false evidence for

the purpose of being used in any stage of judicial proceedings and for the eradication of the evils of perjury and fabrication of false evidence and in

the interests of justice, it is expedient that such witness should be prosecuted, the Court shall, at the time of delivery of the judgment or final order

disposing of such proceedings, record a finding to that effect and may, after providing the witness an opportunity of being heard, make a complaint

thereof in writing and forward the same to a Magistrate having jurisdiction. A plain reading of the provision makes it manifestly clear that for

eradication of evil of perjury and fabrication of evidence, the trial Court is vested with jurisdiction to act against the perjurer/fabricator/forgerer

after recording a finding in respect of fabrication/giving of false evidence at the time of delivery of judgment/final order. The opinion regarding giving

of false evidence/fabrication of false evidence is to be formed at the conclusion of trial and the finding is to be recorded to that effect when

judgment is delivered. The action against the perjurer/fabricator/forgerer will follow the judgment and complaint can be filed by the Magistrate after

affording opportunity of being heard to such person.

In the case in hand, the learned Magistrate was holding trial which was at the stage of recording of prosecution evidence. The trial was yet to

conclude and the stage of delivery of judgment had not arrived. There was no occasion for forming of an opinion in regard to offence of perjury or

fudging of evidence. Even the three witnesses, on the basis of whose statements, cognizance was taken to direct registration of FIR against

petitioner, were not subjected to cross-examination. Their statements, in absence of cross-examination, do not constitute evidence. Learned

Magistrate ignored the fact that the petitioner, in his capacity as the Investigating Officer, was the most material witness in the case who was yet to

be examined at the trial. The learned Magistrate also failed to notice the contradiction in the examination-in-chief of aforesaid witnesses who

departed from the written report of alleged victim of crime namely P.W. Imtiyaz Ahmed who had alleged that accused Mohd. Iqbal had assaulted

him with a knife and not with a toka. Be that as it may, it was no stage to appreciate evidence and arrive at a finding that the investigating officer

had fudged evidence and committed forgery. The finding is perverse and the impugned order directing lodging of FIR against petitioner and

conducting of investigation on the basis of such FIR untenable. The impugned order, to that extent, cannot be sustained and the same is quashed.

As a sequel thereto, FIR No. 41/2010 registered at Police Station Banihal for offence under Sections 467, 468, 409, 201, RPC and all

consequential proceedings therein are also quashed. Trial Court is directed to resume trial in File No. 178/Challan titled ""State v. Mohd. Iqbal"".

Disposed of.