N ANANDA RAO Vs. STATE

JUDGEMENT

(1.) 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 under Section 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 under Sec. 482 Cr. P.C. the petitioner contends that he cannot be prosecuted under Sec. 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 Sec. 195 or Sec. 340 shall apply to that offence.

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

(3.) Section 340 prescribes the procedure to be followed in case of Sec. 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., Sec. 339 (3) Cr.P.C. she has referred to a decision reported in Emperor vs. Madiga Nallavadu in which it is pointed that if the sanction of the High Court is desired under Sec. 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 vs. Htuktalwe and others 2 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.