Nadigadla Ananda Rao vs The State

N.D. Patnaik, J.—The petitioner who is one of the accused in Crime No. 104/85 of I Town Police Station, Vizianagaram, was given pardon and taken as approver. The other accused were tried in Sessions Case No. 38/86 in the Court of the Sessions Judge, Srikakulam, and during the trial, the petitioner was examined as PW 6. He has resiled from the earlier statement made by him before the Magistrate by whom the pardon was tendered to him. Therefore, on a certificate issued by the Public Prosecutor, he was tried for the main offence in Sessions Case No. 25/89 in the Court of the Sessions Judge, Srikakulam and was acquitted in that case. While acquitting the accused, the learned Sessions Judge passed an order directing that he shall be prosecuted u/s 193, IPC for giving false evidence and filed a complaint to that effect in the Court of the First Additional Judicial First Class Magistrate, Srikakulam, but the learned Magistrate had taken cognizance as C.C. No. 180/90. In this petition filed u/s 482 Cr. P.C. the petitioner contends that he cannot be prosecuted u/s 193, IPC without the sanction of the High Court. The learned counsel for the petitioner has pointed out to the second proviso to Section 308, Cr. P.C. which reads : provided that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court and nothing contained in Section 195 or Section 340 shall apply to that offence.

Section 195(1), Cr. P.C. reads:

"No Court shall take cognizance of the offences Under Sections 193 - 196, when such offences are alleged to have been committed in, or in relation to any proceedings in any Court, except on the complaint in writing of that Court, or some other Court, to which that Court is subordinate."

Section 340 prescribes the procedure to be followed in case of Section 195, Cr. P.C. These two provisions are held to be inapplicable in so far as the offence of giving false evidence by a person to whom pardon has been given. The proviso, which is extracted above reads that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court. The learned counsel for the petitioner has referred to some decisions under the corresponding provision of the old Cr.P.C. i.e., Section 339(3) Cr.P.C. she has referred to a decision reported in Emperor v. Madiga Nallavadu, (1908 (2) Cri. LJ 283) in which it is pointed that if the sanction of the High Court is desired u/s 339(3), there should be a motion on behalf of the Crown. In another case, rendered by the Chief Court of the lower Purna, reported in King Emperor v. Htuktalwe and Ors., (1904 (1) Crl. LJ 1021) it is pointed out that the absence of the sanction of the High Court required by Section 339(3) of the Code of Criminal Procedure, to a prosecution for giving false evidence in respect of a statement made by a person, who has accepted a tender of pardon, is an illegality which invalidates the trial. It has been represented that there have been no subsequent decisions on this aspect.

The learned Public Prosecutor has pointed out that it is not necessary that the sanction should be prior to the filing of the complaint. It may even be subsequent and is not a precondition for filing the complaint. The proviso to Section 308 Cr. P.C. reads that the person shall not be tried for the offence of giving false evidence except with the sanction of the High Court. That makes it obvious that the complaint cannot be filed without he sanction of the High Court. Of course in this case it is stated that there is no sanction of the High Court even subsequently. Therefore, it is clear that the petitioner cannot be tried for the offence u/s 193 IPC in C C 180/90 on the file of the First Additional Judicial First Class Magistrate, Srikakulam because there is no sanction of the High Court. I, therefore, accept the contention of the learned counsel for the petitioner that the petitioner cannot be tried for the offence u/s 193 IPC and the proceedings are liable to be quashed. The petition, is therefore allowed and the proceedings against the petitioner in CC 180/90 on the file of the I Addl. Judicial First Class Magistrate, Srikakulam are quashed.