M.M.S.BEDI, J. - (1.) FOR the reasons mentioned in the application delay in filing of the revision petition is condoned. CRM stands disposed of. The petitioner has challenged the proceedings under Section 344 Cr.P.C., initiated against him by issuing notice by the Additional Sessions Judge, Rupnagar vide order dated 4.10.2011.
(2.) BRIEF facts relevant for the decision of present revision petition are that 11 persons Baljinder Singh and others were tried in an FIR No.143 dated 17.9.2009 under Sections 302, 307, 148, 149 and 120 -B of the Indian Penal Code read with Section 25 and 27 of the Arms Act registered at Police Station, Morinda. The petitioner was one of the prosecution witness. The accused in the above said case had allegedly made extra judicial confession before him admitting their guilt before him he being Sarpanch of the Village Rampur Kaleran. When the petitioner appeared as a witness as PW.8, he stated that the accused had never come to him nor confessed any guilt before him and he never produced him before the police as such, he was declared hostile and was permitted to be cross -examined. In the same manner other witnesses turned hostile and did not support their statement under Section 161 Cr.P.C. As the petitioner did not depose in accordance with his alleged statement under Section 161 Cr.P.C., the trial Court while acquitting the accused made the following observations: - "31. However before parting with the judgment. It is observed that PW.l Amarjit Singh complainant has resiled from his signed statement Mark -B which he made before the police and has not supported the version contained in it. Similarly the PW2 Jasprit Singh, PW3 Devinder Singh, PW4 Gurmit Singh, PW8 Bant Singh and PW9 Raj Kumar have also resiled from previous statements made before the police. It is not explained by them as to why their statements were recorded wrongly by the IO. It is also observed that in their earlier statements these witnesses had even got recorded the names and fathers names of the assailants also but while appearing in the court as PWs they have bid adieu to their said statements by stating that they could not identify the assailants Thus, the above named PWs have knowingly and willfully given a false evidence with the intention that such evidence be used in the trial to help the accused. Consequently, it is necessary and expedient in the interest of justice that the above named witnesses should be tried summarily for giving false evidence. Accordingly let a copy of the judgment be separately kept and a notice be issued to the above named PWs under section 344 Cr.P.C. Copy of this judgment be also sent to the District Magistrate to proceed against the investigating officer as per rules for conducting faulty investigation and report the matter to this court within two months. Main file be consigned to the record room." A perusal of the above said directions indicate that the trial Court has formed an opinion that the witnesses have not explained as to why their statements were recorded wrongly by the Investigating Officer. The Court observed that in their earlier statements the witnesses have got recorded the names and father's name of the assailants also but while appearing in the Court as PWs, they had not stuck to their said statements by stating that they could not identify the assailants. The said PWs have intentionally and willfully given a false evidence with intention that the said evidence will be used in the trial to help the accused. The trial Court has opted to take action under Section 344 Cr.P.C., with a presumption that the statement given by the petitioner under Section 161 Cr.P.C., was false evidence given by him with an intention that such evidence would be used in the proceedings. It is settled principles of law that statements under Section 161 Cr.P.C., are not to be considered as evidence and Section 162 Cr.P.C., prohibits the use of said unsigned statement for any purpose during the course of any enquiry or trial pertaining to any offence except that the said statements can be used for contradicting the witness in the manner provided by Section 145 of the Evidence Act. Statement under Section 161 Cr.P.C., could have been put to the petitioner to contradict him in his cross - examination for confronting him with his statement under Section 161 Cr.P.C. In T.Bhagi Patra Vs. State of Orissa, 1996 Crl.L.J., 2423, the petitioner was being prosecuted for giving false evidence as he had not supported the contents of the FIR. The Orissa High Court considering the scope of Section 344 Cr.P.C. in context to the contents of FIR held that for the purpose of Section 344 Cr.P.C., FIR and the statement on oath in the Court cannot form foundation for launching prosecution under Section 344 Cr.P.C.. It was held that in order to make a person liable for false evidence he should have given a statement on oath regarding the facts on which his statement was based and then denied those facts on oath on subsequent occasion. Earlier statement regarding the said facts must be on oath and his statement also must be on oath. If both the statements become irreconcilable, there is scope for forming an opinion for initiation of prosecution. The relevant portion of the judgment is reproduced as under: - "7. Keeping the aforesaid principles in view, the order passed in the present case is to be tested. In the instant case, the informant was examined as P.W. 6 and he has categorically denied the execution of the FIR or the Zimanama. He also stated that no goat of his was ever removed from his possession. The record indicates that the informant has signed his deposition in Oriya, whereas the FIR bears his LTI. The learned Magistrate has not taken any other LTI of the informant to compare with the LTI in the FIR in the absence of any other material, the formation of opinion in an extremely cryptic manner is not appropriate. The recording of satisfaction also suffers from similar infirmity. The Magistrate has not indicated with regard to the expediency or interest of justice in proper perspective. The discretion used by the Magistrate to launch the prosecution has not been properly exercised. The approach of the Magistrate being entirely erroneous, the impugned order is unsustainable. Ex proprio motu direction of the Court is unjustified. 8. The order of the Magistrate is also not sustainable as the concept of "false evidence" in the instant case is not attracted. The informant was examined as P. W. 6 and he denied the execution of the FIR or the Zimanama. He also stated that no goat of his was ever removed from his possession. There is no material on record to show that this evidence was false, inasmuch as, there is no other statement on oath to have a clear opinion that the witness gave false evidence. The lodging of an FIR before the police cannot be treated as a statement on oath. It is not a statement in a judicial proceeding. An FIR or a complaint cannot be the basis to arrive at the conclusion that the witness has given false evidence as the same would run contrary to the language used in Section 344 of the Code, comparison between the FIR, or lodging of the FIR, and the statement on oath in Court cannot form the foundation for launching prosecution under Section 344 of the Code. It is requisite, may, essential, that is order to make a person liable for false evidence, he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on subsequent occasion. The earlier statement regarding a set of facts must be on oath and his subsequent statement also must be on oath. If both the statements become irreconcilable there is scope of forming an opinion for initiation of the prosecution. In this regard, the decision in Emperor v. Bankatram Lachiram, 1904 (1) Criminal Law Journal, 390, may be profitably quoted : - "It is a well -known rule of law, applied by eminant judges to case of perjury arising out of contradictory statements that the Court dealing with them should not convict unless fully satisfied that the statements are from every point of view irreconcilable; and if the contradiction consists in two statements opposed to each other, as to matters of inference or opinion on which a man may take one view at one time and a contrary view at another, there can be no perjury, unless he has, on oath, stated facts on which his first statement was based and then denied these facts on oath on a subsequent occasion. (Emphasis supplied) Scrutinized by these parameters, it is crystal clear that the FIR not being a piece of evidence on oath in a judicial proceeding, the concept of giving false evidence in terms of Section 344 of the Code is not attracted."
(3.) SINCE allegation against the petitioner that his statement under Section 161 had earlier been recorded and he had not substantiated his statement under Section 161 Cr.P.C., the pre - condition for initiation of proceedings under Section 344 Cr.P.C., being not satisfied the launching of prosecution under Section 344 Cr.P.C., against the petitioner is vitiated. As such, the order dated 4.10.2011 passed by the learned Additional Sessions Judge, Ropar, is hereby set aside. Proceedings initiated against the petitioner are hereby quashed. Disposed of.;