HARI MOHARANA Vs. THE STATE

JUDGEMENT

(1.) THIS revision is directed against the appellate order of the additional District Magistrate, Dhenkanal, sanctioning the prosecution of the Petitioner Hari Maharana under Section 193 I.P.C. The short facts are that the Petitioner, during his examination as a witness in a proceeding under Section 145 Code of Criminal Procedure deposed as follows.

(2.) "I have never been convicted at Athgarh. There was no case against me in Athgarh, nor was any punishment of fine imposed on me". After the termination of the case the opposite party, Rahas Behari Durjoy Singh against whom the Petitioner had appeared as a witness and made the deposition obtained a certified copy of a judgment of the Athgarh Court (Ex. 1) which shows that the Petitioner had been convicted under the Arms Act and sentenced to pay a fine of Re. 25/ - in 1941. It is obvious, therefore, that the statement made by the Petitioner in his deposition was false. The Magistrate, Shri U.N. Rout, however, held that the interests of public justice did not require the prosecution of the Petitioner as his conviction under the Arms Act was of the year 1944 while his subsequent deposition was made in January 1958. The view taken by the Magistrate appears to be that the attention of the witness was not specifically drawn to the nature of the offence committed by him and there is room for thinking that the alleged false abatement was not intentionally made so. The learned appellate Court however holds that the statement is prima facie false and that the Petitioner should therefore be put on his trial. Unfortunately, neither Court has given any finding as to whether such a prosecution is expedient in the interest of public justice. It appears to me that the Petitioner has been caught unawares and that he was trying to hoodwink the cross -examiner by making a statement which have been proved to be false. The point is whether it was not the duty of the cross -examiner to draw the Petitioner's pointed attention to the fact of his previous conviction. It was, I think, the obvious duty of the cross -examiner to confront the witness then and there with the judgment of he Athgarh Court and give the witness an opportunity, to explain whether in the light of that judgment he could recall his previous conviction. That not having been done it appears to me unfair that he should now be subjected to the harassment of a trial for what may be a lapse of memory. Furthermore in view of the fact that the Courts below have not recorded a finding as to the expediency of such a prosecution in the interests of public justice, I think the better course would be to leave the matter where it is.