Mina Adhikari vs State of West Bengal

Sankar Bhattacharyya, J.—In this revisional application the petitioner prays for quashing the proceeding in C.R. Case No. 111 of 1987 u/s 193, Indian Penal Code pending against her in the court of the learned Chief Judicial Magistrate, Berhampore. it arises thus.

Over the suicidal death of one Shibani Das by burning on 6.5.84 her husband Parasar Das was arraigned before a learned Additional Sessions Judge, Murshidabad, in Sessions Trial No. 2 of January 1987 to answer a charge u/s 306, Indian Penal Code. On the date of incident the petitioner, who is a nurse, was on duty at the New Berhampore General Hospital, where the victim Shibani Das was removed for treatment.

According to the prosecution after being removed to the hospital the victim made a dying declaration before the petitioner and some other nurses to the effect that she chose the path of self- immolation by fire, being unable to bear the tortures by her husband.

During Trial, the petitioner was examined as witness No. 3 for the prosecution obviously for the purpose of proving the alleged dying declaration of the deceased. In her examination-in-chief, she admitted that on 6.5.84 she was on duty at the hospital as a nurse but stated that she failed to remember whether on that date any female patient was admitted to the hospital with burn injuries. At this, the learned Additional Public Prosecutor filed a petition for declaring her hostile. The prayer was allowed by the Court, and, as usual, she was cross-examined by the prosecution.

In cross-examination, she was confronted with her statement before the Investigating Officer which, when translated into English, reads as under :

"On 6.5.84 at or about 3 P.M. a patient named Shibani Das was admitted to the hospital with burn injuries. I and the other sisters having asked her as to the cause of her injuries she stated that being disgusted with the tortures meted out to her by her husband, she had herself done the act (that is, set herself on fire). As her condition was very bad, we did not make any further inquiry from her."

Being so confronted, she stated that she did not remember to have made any such statement to the Investigating Officer. She also stoutly denied the suggestion that she was deposing falsely in order to save the accused.

Thereafter, the learned Additional Public Prosecutor filed a petition before the learned Additional Sessions Jugde alleging that the petitioner had knowingly and wilfully given or fabricated false evidence inasmuch as her statement recorded u/s 161, Criminal Procedure Code, was otherwise and praying for a direction upon her to show cause why a complaint should not be lodged against her in respect of the offence u/s 193, Indian Penal Code.

By his Order, dated 26.3.87, the learned Additional Sessions Judge made a complaint against the petitioner to the learned Chief Judicial Magistrate, Berhampore for having committed an offence u/s 193, Indian Penal Code by willfully and deliberately giving a false evidence in Sessions Trial No. 2 of January, 1987. Alongwith the complaint copies of the judgment and the petition filed by the .learned Additional Public Prosecutor were also forwarded to the learned Chief Judicial Magistrate.

On 6.1.88, the learned Chief Judicial Magistrate, on the basis of the aforesaid complaint, took cognizance of the offence u/s 193, Indian Penal Code, overruling the objection raised by the petitioner and framed charge against her u/s 193, Indian Penal Code, fixing 12.3.88 for evidence. The above proceeding was registered as C.R. Case No. 111 of 1987. As stated already, the Order of the learned Chief Judicial Magistrate initiating the proceeding u/s 193, Indian Penal Code, is the subject matter of challenge in this revisional application.

10A. Mr. Sengupta, learned Advocate appearing in support of the Rule, has assailed the impugned Order primarily on the ground that both for the purpose of lodging the complaint as well as for the purpose of taking cognizance, the statement of the petitioner u/s 161, Criminal Procedure Code, was used as substantive evidence although, u/s 162, Criminal Procedure Code, such statement can be used only for the limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act. It has also been urged by Mr. Sengupta that besides the petitioner''s statement u/s 161, Criminal Procedure Code, there was no other material on record to justify the complaint or the cognizance of the offence u/s 193, Indian Penal Code.

For proper appreciation of the contention raised by Mr. Sengupta it will be necessary to refer to the material portions of the complaint and the judgment of the learned Additional Sessions Judge and of the impugned order of the learned Chief Judicial Magistrate.

In the complaint, the learned Additional Sessions Judge made the following observation:

"Considering the facts and circumstances of the case and the opinion given in Sessions Trial No. 2 of January, 1987 and in view of the application filed by the prosecution against the witness prima facie it appears that prosecution witness No. 3, Mina Adhikari, daughter of Bhabatosh Adhikari, nurse attached to Berhampore New Central Hospital in the district of Murshidabad knowingly or wilfully gave false evidence or fabricated false evidence with the intention that such evidence should be used in Sessions Trial No. 2 of January, 1987 before this Court and has thereby committed an offence punishable u/s 193, Indian Penal Code (vide Annexure ''C to the revisional application)".

The relevant portion of the judgment to which reference was made in the complaint is as follows :

"P.W. 3, Mina Adhikari, who is a nurse of the hospital, alleged to have stated that injured Shibani stated that due to torture by her husband she committed suicide. She became hostile. P.W. 11 Prabir Roy, Sub-Inspector of police, the Investigating Officer of the case, stated that Mina Adhikari (P.W. 3) stated before him that Shibani disclosed before her that due to torture by her husband she burnt her body to commit suicide vide Annexure ''D'' to the revisional application)."

It would thus appear from the judgment that there was no material before the learned Additional Sessions Judge barring the petitioner''s statement u/s 161, Criminal Procedure Code even to remotely suggest that what she stated in her evidence at the Trial was false.

It is therefore clear that the observation "considering the facts and circumstances of the case" appearing in the complaint is without any basis whatsoever. The complaint goes to show that the learned Additional Sessions Judge also considered the petition filed by the learned Additional Public Prosecutor the relevant portion of which is extracted below :

"On that day (19.1.87) she being knowingly and wilfully fabricated false evidence though her previous statement was otherwise u/s 161, Criminal Procedure Code recorded by the Investigating Officer concerned (sic) she stated that she could not remember the -statement when she was confronted the same (sic) in reference to the above statement. Hence, the petitioner prays that the witness concerned may kindly be asked to show cause for the ends of justice."

It is thus clear that whatever observation might have been made in the complaint, its sole basis was the petitioner''s statement u/s 161, Criminal Procedure Code and nothing more. The statement u/s 161, Criminal Procedure Code has already been extracted above. What she stated to the Investigating Officer was that when the patient named Shibani Das was brought to the hospital on 6.5.84 with burn injuries she and some other sisters inquired about the cause of her injuries to which she replied that she herself set fire to her body being disgusted with the tortures by her husband. As stated already, she was confronted with the above statement by the prosecution and her reply was that she failed to remember whether she made any such statement before the Investigating Officer.

The reasoning of the learned Additional Sessions Judge seems to be that since the petitioner made a contradictory statement before the Investigating Officer, her statement before the Court at the time of Trial must be false. This is because the learned Additional Sessions Judge, as observed by him in his judgment, "did not find any reason why the Investigating Officer would record a false statement and depose falsely against the accused before the court."

The observation of the learned Additional Sessions Judge betrays his utter ignorance of the nature, object and scopes of Section 162, Criminal Procedure Code. A mere reading of the Section will at once go to show that no statement of a person to a Police Officer in course of investigation shall, if reduced to writing, be used for any purpose at any inquiry or Trial in respect of any offence, under investigation at the time when such statement was made. The proviso to the Section says that such statement, if duly proved, may be used by the accused and, with the permission of the Court by the prosecution, to contradict such witness in the manner as provided by Section 145 of the Evidence Act. Sub-Section (2), however, exempts from the inhibition of the Section any statement falling within Clause (1) of Section 32 of the Evidence Act,

Section 145 of the Evidence Act lays down that a witness may be corss-examined as to the previous statements made by him into writing or reduced to writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Statements u/s 161, Criminal Procedure Code may, therefore, only be used for the purpose of contradicting a witness to discredit him and to render his substantive evidence unreliable. The fact that the petitioner made a statement u/s 161, Criminal Procedure Code contradictory to her substantive evidence in Court only goes to discredit her and make her substantive evidence unreliable. But by no strength of imagination can it be said that the substantive evidence was false because, to say that, would be tantamount to assuming that her statement u/s 161, Criminal Procedure Code was true which is not permissible u/s 162 Cr. P.C. The learned Additional Sessions Judge also fell into an error in observing that he did not see any reason why the Investigating Officer would depose falsely against the accused before the Court. The learned Additional Sessions Judge lost sight of the fact that the Investigating Officer did not give evidence against the accused. He merely proved the purported statement of the petitioner made before him.

In this connection, I feel tempted to quote here a relevant portion of the judgment of the Supreme Court in the celebrated case of Tahsildar Singh and Another Vs. The State of Uttar Pradesh, which is as under:

" The intention of the legislature in framing Section 162 in the manner it did in 1923, was to protect the accused against the user of the statements of witnesses made before the police during investigation at the Trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the Section and the proviso intended to serve primarily the same purpose that is, the interest of the accused ."

The section was conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for the limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a court witness. Nor can it be used for contradicting a defence or a court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar,

Following the above decision the Supreme Court in Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others, made the following observation at paragraph 95 of the judgment:

" Section 162, Criminal Procedure Code provides inter alia that no statement of any person, if recorded, by a Police Officer in the course of investigation, shall be signed by the person making it. Even a statement of a witness recorded by the investigator during the inquest u/s 174 would be within the inhibition of Section 162. Behind this provision is a wholesome rule of public policy that witnesses at the trial should be free of to tell the truth unhampered by anything they might have been made to say to the Police".

The observations of the Supreme Court in the two abovementioned easels, particularly the portions underlined by me, go to show that statements recorded by the police are looked upon with some suspicion for the simple reason that the Investigating Officer is highly interested in the success of the case. That being so, the observation of the learned Additional Sessions Judge that he did not see why the Investigating Officer would record a false statement of the petitioner cannot be supported.

24 In Chajoo Ram Vs. Radhey Shyam and Another, the Supreme Court sounded a note of caution in the matter of making complaints for perjury in the following words :

" 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."

As discussed already, the learned Additional Sessions Judge lodged the complaint solely on the basis of the petitioner''s purported statement u/s 161, Criminal Procedure Code treating it as a true statement. It may be noted that no nurse of the hospital who allegedly heard the dying declaration was examined by the prosecution to prove the alleged dying declaration of the deceased. Had they been examined and had they deposed that actually a dying declaration was made by the deceased in presence of the petitioner, there could have been some basis for drawing the inference that the petitioner was making a deliberate and wilful false statement in Court. That apart, the learned Additional Sessions Judge became oblivious of the fact that the incident took place on 6.5.84 and the petitioner deposed in Court on 19.1.87 that is, about two years and eight months after the incident. If, under such circumstance, she failed to recollect whether any patient named Shibani Das was brought to the hospital on 6.5.84 and whether she (petitioner) stated to the Investigating Officer that the patient made a dying declaration on that day, her evidence cannot be branded as a deliberate and wilful false statement so as to come within the mischief of Section 193, Indian Penal Code.

Now let us turn out attention to the impugned Order of the learned Chief Judicial Magistrate by which he took cognizance of the offence. His own observation goes to show that he was rather hesitant to take cognizance. The observation is extracted below :

" It is a general principle of law that statement made to an Investigating Police Officer u/s 161, Criminal Procedure Code and recorded by him under the provisions of Section 162, Criminal Procedure Code cannot be the foundation of an order for prosecution u/s 193, Indian Penal Code of the person making it. But in the instant case I think, from a consideration of the materials on records including the evidence of the witnesses as well as the judgment passed, that there are other materials besides the statements of the witnesses recorded by the Investigating Officer u/s 162, Criminal Procedure Code to come to a prima facie finding that the witness suppressed the truth and gave evidence before the said Court which she/he knew or believed to be false or she/he did not believe to be true. Accordingly, there is ground for presuming that the accused committed an offence punishable u/s 193, Indian Penal Code."

The learned Chief Judicial Magistrate did not, however, spell out what were the materials before him besides the statement u/s 161, Criminal Procedure Code. As pointed out by me there was absolutely no material before the learned Chief Judicial Magistrate save and except the petitioner''s statement u/s 161, Criminal Procedure Code, to come to the prima facie finding that an offence punishable u/s 193, Indian Penal Code had been committed by the petitioner.

For the reasons stated above, I am of the opinion that cognizance of the offence u/s 193, Indian Penal Code was taken on no legal material whatsoever and was, therefore, bad in law. In such a situation, to allow the proceeding to continue would amount to gross abuse of the process of the Court and it must, therefore, be quashed.

In the result the revisional application is allowed, the impugned Order, dated 6.1.88 passed by the learned Chief Judicial Magistrate is set aside and the proceeding in C.R. Case No. 111 of 1987 pending before him is quashed. Proceedings quashed.