STATE Vs. BIJLI PATHAK

JUDGEMENT

(1.) This proceeding has been started against two persons, Bijli Pathak and Jogendra Singh, on a notice issued by this Court on the 27th of January, 1959, calling upon them to show cause why a complaint should not be filed against them on the allegation that they had given false evidence in G. R. Case no. 794/Tr. 39 of 1957 Sn the Court of Mr. B. N. Misra, Judicial Magistrate, 1st Class, Muzaffarpur. Both these persons deposed in a case under Sections 304A and 279, Indian Penal Code, in which one Sarwan Rai was made an accused on the charge of rash and negligent driving of a bus BRF 683 of which he happened to be the driver. In the morning of the 28th of June, 1957, the bus knocked down a cyclist who succumbed to his injuries. The learned Magistrate tried the accused Sarwan Rai and by his judgment dated the 3rd June, 1958, convicted him and sentenced him to undergo rigorous imprisonment for a period of a years. Sarwan Rai preferred an appeal against his conviction and sentence. The learned Sessions Judge of Muzaffarpur dismissed the appeal but reduced the sentence to a period of one year only. Sarwan Rai preferred an application in revision to this Court which was numbered as Criminal Revision No. 872 of 1958. A learned single Judge of this Court acquitted Sarwan Rai on the 27th of January, 1959, but issued the above notice to the opposite party. They have appeared and shown cause in which they state in substance that they did not give false evidence before the learned judicial Magistrate. The accused-driver was neither known to them nor did they have any other motive to give false evidence to save him from punishment. It has also been pointed out in the show cause petition that they were not declared hostile nor did the defence lawyer put any question to clarify the position.

(2.) It may be stated that this Court acquitted the accused. Sarwan Rai, on the ground that Bijli Pathak and Jogendra Singh, who were P.W's. 1 and 6 respectively before the learned Magistrate, did not identify the accused and did not give incriminating evidence against him. The statement made by them before the police Or their identification of the accused at the test identification parade could not be treated as substantive evidence and no conviction could be based of an accused person on such evidence. The two courts below relied upon the identification of the accused by the witnesses at the test identification parade which was supported by the testimony o the Magistrate in charge of the parade. They also accepted their statement before the police that the accused-driver endeavoured to overtake another bus which was going ahead and thus the deceased cyclist got between the two buses and was knocked down by the bus driven by Sarwan Rai. In the learned Magistrate's Court, however, the evidence of Bijli Pathak was to the effect that at the time of the accident he was travelling in the bus going ahead but at a point beyond Saraiya, another bus came from behind and wanted to overtake this bus and in this Ramji Ojha, who was a cyclist, got crushed. So far as this witness is concerned, he identified the accused, no doubt, as the person who was driving BRF 683 in his exami-nation-in-chief, but in cross-examination he changed his version to this extent that he stated that he did not identify Sarwan Rai as the driver of BRF 683 but as the driver of certain vehicles. He never saw him driving a bus; but his statement in the first information report lodged by him was that BRF 683 was the offending bus the driver of which wanted to overtake another bus and thus crushed Ramji Ojha to death. The accused was the driver of that bus. So far as Jogendra Singh is concerned, he stated that the man was crushed by BRF 683 coming from behind, referring to the bus driven by the accused Sarwan Rai, but said further that he did not identify the accused before the Magistrate as the person who was driving the bus. He stated further in his examination-in-chief that it was not a fact that he was telling a lie in the Court and that he had been won over by the accused. The learned Judge of this Court thus acquitted the accused, Sarwan Rai, on the ground that neither of the two witnesses gave any evidence against Sarwan Rai specifically as the driver of the bus which caused the accident and which resulted in the death of the cyclist, Ramji Ojha. Both of them gave evidence with regard to the test identification parade which was contrary to what the Magistrate stated as, according to the latter, Sarwan Rai was identified by the witnesses as the driver of BRF 683 although in Court they stated that they had not identified the accused before the Magistrate holding the test identification parade. It is true, no doubt, that Bijli Pathak stated in the first information report that Sarwan Rai was the driver of the bus BRF 683, causing this accident. He repeated it before the police and also identified the accused as the driver of the offending bus before the Magistrate holding the test identification parade. Jogendra Singh also identified the accused as the driver of BRF 683 before the Magistrate holding test identification parade. But in Court both of them in substance resiled from that statement as discussed above. The point for decision is whether they can be proceeded against for giving false evidence -merely on account of these contradictions. Learned counsel for the opposite party has urged that if there was any false evidence given by these witnesses in the Court of the learned Magistrate, they should have been declared hostile by the Public Prosecutor or an attempt should have been made by him for their re-examination in order to clarify the position. The statement which they made must have been either in confusion or the learned Magistrate himself might have misrecorded it. I am unable to accept the explanation urged by the learned counsel on behalf of the opposite party. It is difficult to hold that the learned Magistrate misrecorded the statement. The contradictory statements made by the two witnesses referred to above are palpably there and the question of misrecording by the Magistrate and a statement made in confusion by the two witnesses does not arise in view of the evidence given by them. It is true, no doubt, that the lawyer for the State did not do his duty properly in not having them declared hostile and cross-examined them. That, however, is not conclusive in deciding whether it is a fit case for proceeding against them on a charge of giving false evidence In Court.

(3.) Apart from the above, however, there is yet anotiier material consideration before any corn-plaint under Section 476, Code of Criminal Procedure, may be filed against the opposite party for having committed an offence under Section 193, Indian Penal Code. Section 476, in so far as it is relevant, runs as follows: