State vs Bhubaneswar Nayak

S. Acharya, J.—On 30.01.1970 at 7.00 p. m. non-duty paid Ganja and Bhang were recovered from the shop of Laxmidhar Sahu in the College Square at Cut tack near the Ravenshaw College. The said Ganja and Bhang were seized and the said Laxmidhar was prosecuted for an offence u/s 47(a) of the Bihar and Orissa Excise Act in the Criminal Case No. 2(a) C.C. 54 of 1970 in the Court of the S.D.M. Cuttack. The opposite party, an Advocate of the Cuttack Bar, was examined as P.W. 3 in that case, and he deposed about the seizure of the contraband Ganja and Bhang in his presence. The accused in the aforesaid case was convicted u/s 47(a) of the Bihar and Orissa Excise Act and in appeal his conviction was upheld. Against the said conviction the accused preferred Criminal Revision No. 726 of 1972 which came up before Justice Panda for disposal. Justice Panda, while confirming the conviction of the accused directed issue of notice on the opposite party in this case to show cause as to why a criminal prosecution would not be launched against the opposite party "for abetting fabrication of false evidence u/s 192 or giving false evidence u/s 191 punishable u/s 193, Indian Penal Code. The relevant observations of Panda, J. are extracted below:

Much was made of this witness''s evidence. Admittedly, he is an Advocate who is supposed to know the law, the implication and significance of search and seizure, the consequence of his own act and the peril to the Petitioner. The very fact that he had signed the seizure list and the packets goes to show prima facie that he was a witness to the seizure of the contraband Ganja and Bhang. His later statements that without knowing the contents of Ext. 1 he put his signature and even did not raise any protest thereafter are really intriguing and dubious. The learned Courts below also have not relied on his evidence. True, search and seizure are to be conducted in the presence of two respectable persons of the locality and that has been done in this case. But P.W. 3 deposed in a manner incompatible with his conduct as revealed in Ext. 1. I do not think, the Court is helpless in such a situation. It is upto the Court to disbelieve such evidence if it is unworthy of credit because of inherent defect in it or it is inconsistent either with the broad probabilities or other evidence in the case. I am in agreement with the learned Courts below in discarding the evidence of P.W. 3.

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Before leaving this judgment, I am constrained to hold that the evidence of a witness belonging to the honorable legal profession has to be discarded as incredible. It is really strange that an Advocate could not distinguish police constabulary from the excise staff. Again, he signed the seizure list Ext. 1, according to him, without knowing the contents and even after giving his signature he did not protest. This is really mysterious. From this two things flow. Either the excise staff were fabricating false evidence against the Petitioner who was innocent and this witness abetted the same or the excise staff with P.W. 3 had effected due search and seizure to which this witness was a party but later he backed out and spoke in the Court under oath otherwise thus giving false evidence. If it is the former, he has abetted an offence u/s 192, Indian Penal Code on his own showing and if the latter he is prima facie liable for an offence u/s 191, Indian Penal Code, but in either case punishable u/s 193, Indian Penal Code. This is a serious matter involving the safety of the citizens. If people apparently respectable behave in a manner susceptible to some grave uncharitable criticism may, worse still verging on criminality, the matter really needs a deeper judicial probe. Natural justice demands that no body should be hit or stigmatised behind his back without a fair chance being given to explain his conduct. I think, this is a fit case where in the interest of justice and for eradication of evils of perjury and for fabrication of false evidence the matter be thrashed out. Accordingly, issue notice u/s 479-A(5), Code of Criminal Procedure with a copy of this judgment as to why a complaint should not be filed against him for abetting fabrication of false evidence u/s 192 or giving false evidence u/s 191, punishable u/s 193, Indian Penal Code....

The opposite party has shown cause, and the matter has been placed before me to decide if criminal prosecution of the above nature should be directed to be launched against the opposite party in this case.

It is well settled that prosecution for perjury is to be sanctioned only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. In this connection the observations of their Lordships of the Supreme Court in para 7 of Chajoo Ram Vs. Radhey Shyam and Another, , should profitable be quoted below:

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 accuracy 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.

In Radhashyam De v. The State LXXIII Cal.W. Notes 847 on a consideration of the provisions of Section 476 to 479(a) of the Code of Criminal Procedure It has been held: "for initiating a prosecution for perjury the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding that the witness has intentionally given false evidence in any stage of the judicial

proceeding and that....". The above view is supported by

the Supreme Court decision in Shabir Hussein Bholu Vs. State of Maharashtra, .

Keeping in view the above mentioned law for sanctioning prosecution for perjury it is to be examined as to whether the opposite party in this case deliberately and consciously made false statements in his deposition in Court when he figured as P.W. 3 in the aforesaid Criminal Case No. 2(a) C.C. 54 of 1970, and whether if he is prosecuted for perjury for making the said statement there is every likelihood that he would be convicted of the same. It is also to be seen if it is expedient in the interest of justice and for the eradication of the evils of perjury that the said witness should be prosecuted for the offences of perjury.

The deposition in question of the opposite party is quoted below in extenso:

I know the accused in dock. On 30-1-1970 at 7 to 71/2 p. m. the accused was standing at the College. Chak near the shop of Thakar. Some Police Officer and Con tables were standing there. Some Bhang and Ganja were also present there. In our presence that Bhang and Ganja were weighed. I have not seen the search. In my presence those articles were seized. I was called and when I came to spot I saw the contraband articles kept on a cot.. It was packed and sealed. I have put my signature on the seizure list. Ext. 1/5 is my signature.

I put my signature without knowing the contents. I did not raise any objection after putting my signature. My signatures are also present on the property sealed. On M.O.S. I, II and III.

Xmn: As far as I know the articles were present on the verandah of J.B. Thakar. Many people were present there.

The opposite party was not declared hostile by the prosecution and the prosecution did not in any manner take any objection to any of the statements made by the opposite party in his deposition in the said case. The statement of the witness that when he went to the spot he saw that "some police officers and constables were standing there" is commented upon on the ground that the witness, an Advocate, was expected to distinguish police officers from the Excise Staff. The above fact deposed to by the witness was not challenged by the prosecution in cross-examination. None of the witnesses have stated and it is nobody''s case that no police officers and/or constables were present near the place where the said search and seizure etc. of Bhang and Ganja were being made. The above-mentioned contraband articles were detected at a place in the College Square near the Ravenshaw College, and as is well known that is a very busy area, and it is not unlikely that police officers and constables on patrol duty in that area also came to the spot to see what was going on at that place. Without having anything definite on record that there was no police personnel present at the spot, it is difficult to hold that the statement of the witness to the above effect is a deliberate falsehood. Again, the witness has no where stated that the Excise Staff were not present at that place. So it cannot be said that by his above statement he tried to falsify the prosecution case. Exception has also been taken to another sentence in the deposition of p w. 3 which is to the effect that he (P.W.3) signed the seizure list "without knowing the contents". He does not say that he signed the seizure list "without knowing the contents thereof". The witness is a literate person and from his said deposition it cannot be said that he intended to say that he did not know the contents of the seizure list which he signed. That sentence, when read with the next sentence in his deposition that ''I did not raise any objection after putting my signature, and his evidence in examination in chief that by the time he went to the spot, some Bhang and Ganja were already there on a cot near Thakar''s shop in the College Square and those things were seized, packed and sea led in his presence and he a affixed his signature on the seizure list, would, in my view, mean that be did not know the exact quantity of the Bhang and Ganja which were seized on that occasion. My above view is fortified by the fact that no where in his deposition he has stated that the Bhang and Ganja seized on that occasion were weighed in his presence. Prosecution neither suggested to him that those things were weighed in his presence nor challenged his evidence in any manner whatsoever. On a reading of the said statement in question in the context in which it appears in his -deposition it cannot be said that the witness was deliberately and consciously stating falsehood or that by stating so he intentionally gave false evidence. The statement of the opposite party that he did not see the search cannot be said to be a false statement. His deposition read as a whole shows that he reached the spot after the excise staff had completed the search of the shop of the accused and had recovered the Bhang and Ganja from that shop. His evidence to that effect has not been challenged as false or incorrect by the prosecution. The Magistrate, before whom the witness was examined, did not entertain any doubt at-out his said statement. Nothing is shown by the counsel appearing for the State on which it can be said that the said statement is a deliberate falsehood.

A case of abetting fabrication of false evidence is also not made out. AU the three Courts, in which the conviction of the Petitioner has been upheld on a consideration of the evidence on record, have relied on the prosecution evidence. Both the Courts of fact and also this Court have accepted as correct and true the evidence of the Excise Staff (PWs. 1, 2 and 5). That being so the question of the opposite party abetting fabrication of false evidence by the Excise Staff does not arise. Nothing is shown by the counsel appearing for the State to make out a case of abetting fabrication of false evidence.

Suspicion of perjury is not labelled on any other aspect of the evidence of the opposite party.

On hearing the Counsel appearing for both the parties and on a careful consideration of the matter, I am satisfied that this is not a fit case to sanction prosecution of the opposite party either for abetting fabrication of false evidence or for giving false evidence in the above mentioned excise case. The counsel appearing for the State also did not Seriously press for sanctioning prosecution of the opposite party on a charge of perjury. The matter, therefore, be dropped and the notice issued against the opposite party be quashed.