Dharam Chand Chaudhary, J. - (1.)Respondent herein is one of the witnesses (PW-9) in Case No. 8 of 2005, having arisen out of FIR No. 35/05 registered in Police Station, Sadar, District Bilaspur on 8.1.2005 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 against Khem Singh @ Khemu and Roshan Lal. Both accused though were acquitted of the charge by learned Special Judge, Bilaspur in Criminal Appeal No. 245 of 2009, preferred by the State against the judgment of acquittal. This Court has also affirmed the impugned judgment and dismissed the appeal vide judgment dated 12.08.2016. However, in the opinion of this Court, the respondent has deposed falsely while in the witness box as PW-9 for the reasons best known to him. Therefore, prima-facie he was found to have committed an offence within the meaning of Section 193 of the Indian Penal Code. It was, however, deemed appropriate to make a complaint in writing to the Magistrate having jurisdiction over the matter in terms of the provisions contained under Section 340 of the Code of Criminal Procedure against the respondent after holding preliminary inquiry and affording an opportunity of being heard to him. We have dealt with this part of the matter in para 21 of the judgment as under:
"21 . While appearing as PW9, he has deposed that he was called by the police and his signatures were obtained at 2-3 places and nothing was recovered from the accused persons in his presence. He was also cross-examined by the learned Public Prosecutor at length, but nothing favourable to the prosecution has come. He has also admitted that he signed memos Ext.PW6/C and Ext.PW6/D also which bears his signatures, as a witness. He has stated that the police has not explained the contents of the documents, which were got signed from him. As per him, Constable Surinder Kumar (PW7), who belong to his area, had called him to sign the papers, which he signed in good faith on the request of Constable Surinder Kumar. He further deposed that neither the recovery has been got effected in his presence nor any article was recovered from the accused persons in his presence. He has further deposed that the accused persons are not known to him. Though, this witness has admitted his presence and signatures at the relevant time, but he has specifically stated that he has signed because one of the police official was known to him and he signed the papers in good faith and at the request of Constable Surinder Kumar, PW7. The Investigating Officer though admitted that this witness is nephew of a Police Constable but immediately thereafter denied it. This is also one of the reason to cast a suspicion in the prosecution story. Though, the statement so made by PW 9 has caused major dent in the prosecution case and analyzing his statement and that of official witnesses, there emerges two possible views and in such a situation the findings of conviction cannot be recorded.

However, we are not inclined to believe the version of PW 9 blindly because no person of ordinary prudence is expected to put signatures on the documents that too during the course of investigation of a criminal case by the police without going through the contents thereof or at the behest of anyone else. Anyhow, we leave this aspect of the matter open to be considered and discussed further in the latter part of this judgment .."

27. Before parting with the case, we would be failing in our duty, if ignore the manner in which PW-9 Ram Lal, independent witness has conducted himself while in the witness box. Taking note of the statement, he made while in the witness box, in our opinion, he has not disclosed true facts. He has admitted his signatures on the seizure memo Ex. PW6/B, memo Ex. PW6/C qua personal search of accused Roshan Lal, memo qua personal search of accused Khem Raj Ex. PW 6/D, sample of seal Ex.PW6/A and also the memo whereby the accused were informed about the offence they committed and the grounds of their arrest.

He while in the witness box admits his signatures on these memos, however, according to him, neither seizure nor any other proceedings has taken place in his presence. As per his version, he was called by the police his signatures were obtained at 2-3 places. In his cross-examination, conducted on behalf of the prosecution, he tells that the contents of these documents were not explained to him by the police before obtaining his signatures on the same. According to him, Constable Surender Kumar (PW 7), who belongs to his area, called him and made him to sign these documents, which he had signed in good faith at the instance of said Constable. True it is that he had denied his acquaintance with the accused persons, however, admitted his presence on the spot and also his signatures on the documents. PW 9 has, therefore, blown hot and cold in the same breath. Normally, it is not expected from a man of ordinary prudence to have signed the documents, that too, during the course of investigation of a criminal case where the freedom and liberty of an individual is at stake that too at the behest of someone known to him. If nothing of this sort took place in his presence, his act of having signed these documents prima-facie reveal that he has intended to implicate innocent persons in a criminal case. This witness, in our opinion, therefore, has rendered himself liable to be dealt with in accordance with law including his prosecution under Section 211 of the Indian Penal Code and also within the meaning of sub-Section (1) of Section 195 of the Indian Penal Code.

28. Section 340 of the Code of Criminal Procedure takes care of such a situation. The provisions contained under the Section ibid reveal that if on an application made to it or otherwise, the Court is of the opinion that it is expedient and in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of subSection (1) of Section 195 of the Code, which appears to have been committed in relation to proceeding of a case in that Court, the Court shall hold a preliminary inquiry and after recording a finding that by producing a document or giving a statement in evidence, an offence referred to in clause (b) of sub-Section (1) of Section 195 of the Code is made, order to make a complaint in writing to a Magistrate of the first class having jurisdiction over the matter.

29. Section 340 of the Code of Criminal Procedure contemplates a preliminary inquiry to be conducted by the Court to form an opinion that it is expedient and in the interest of justice to hold inquiry into the offence which appears to have been committed. It is not mandatory for the trial Court to hold preliminary inquiry, because it has the opportunity to see the witness while in the witness box and to observe his demeanour. We, however, feel that the appellate Court, having no such opportunity to observe the demeanour of the witness, should hold an inquiry and give an opportunity of being heard to him, before forming an opinion that an offence within the meaning of clause (b) of sub-Section (1) of Section 195 of the Code of Criminal Procedure appears to have been committed by him. It is only thereafter, an order qua filing a complaint, as contemplated under Section 340 of the Code of Criminal Procedure, should be passed.

30. Therefore, before initiating any action against PW-9 Ram Lal, we deem it expedient and in the interest of justice to call upon him to show cause as to why an action be not initiated against him in the light of the observations in this judgment. Consequently, there shall be a direction to the Registry to issue show cause notice to PW-9 Ram Lal for 23rd September,2016 and the proceedings be registered against him separately. A copy of judgment be also sent to PW-9 Ram Lal alongwith show cause notice. Office of learned Advocate General to collect notice from the Registry of this Court for onward transmission to the Superintendent of Police, Bilaspur, for effecting service thereof upon the witness Ram Lal well before the date fixed.

(2.)Consequent upon the above directions, show cause notice was issued against the respondent.
In response thereto, he has filed reply. Para 1 thereof reads as follows:

"1. That in criminal case no. 8 of 2005 titled as State of H.P. Versus Khem Chand & others the replying respondent appeared as prosecution witness no. 9 before the court of learned Special Judge Bilaspur H.P. and stated on oath the true facts as per his personal knowledge before the learned court below.

It is respectfully submitted that the replying respondent was employed as sales man at wine shop at Sawarghat in the year 2005 and on 8.1.2005 the replying respondent signed certain documents at police station swarghat at the instance of Sh. Surender Kumar who was posted as police constable at police station Swarghat. The contents of documents were not explained to the replying respondent by the police at the time of getting signature of the replying respondent on the documents and replying respondent signed the documents at the instance of police constable Surender Kumar who belongs to the native area of the replying respondent in good faith. It is respectfully submitted that the replying respondent is a rustic villager and appeared first time in his life as witness in the court of law and before police and having no knowledge of the technicalities of law."

(3.)The explanation so forthcoming is neither plausible nor reasonable for the reason that normally a man of ordinary prudence is not expected to act at the behest of anyone else, more particularly, a police Constable, that too, in a criminal case of high stakes qua the accused. As a matter of fact, we have considered and discussed this part of the matter in detail in the main judgment and formed an opinion that a person like the respondent cannot be expected to sign the documents in connection with search and seizure of contraband i.e. charas allegedly recovered from the accused persons.
Therefore, in our opinion, prima-facie he has committed an offence punishable under Section 193 of the Indian Penal Code (in the judgment inadvertently came to be recorded as sub-Section (1) of Section 195 of the Code of Criminal Procedure). In terms of the provisions contained under Clause 'B' (i) of sub-Section (1) of Section 195 of the Code of Criminal Procedure, the cognizance of such an offence can only be taken on a complaint to be filed in writing against the respondent in the Court of Judicial Magistrate 1st Class having jurisdiction to entertain and try the same.