MAN SINGH Vs. STATE AND ORS.

JUDGEMENT

(1.) Petitioner, serving as Sub -Inspector of Police and posted as SI, Police Post Ramsoo Tehsil and District Ramban at the relevant time, is aggrieved of order dated 10 -3 -2010 passed by respondent No. 2 learned Judicial Magistrate 1st Class, Banihal in File No. 178/Challan titled State v/s. Mohd. Iqbal by virtue whereof the learned Magistrate directed registration of FIR against the petitioner for having allegedly forged the signatures of witnesses to the seizure memo and for having changed the weapon of offence. The impugned order is said to have been passed during the trial of the case when the prosecution evidence was in pipeline and the stage of delivery of judgment was yet to arrive. The impugned order is said to be untenable and unsustainable. Heard.

(2.) Trial Court appears to have ignored the mandate of Sec. 479 -A, Cr.P.C. which lays down the procedure in certain cases of false evidence. Sec. 479 -A, Cr.P.C. inter alia, provides that when a criminal Court is of opinion that any person has intentionally fabricated false evidence for the purpose of being used in any stage of judicial proceedings and for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted, the Court shall, at the time of delivery of the judgment or final order disposing of such proceedings, record a finding to that effect and may, after providing the witness an opportunity of being heard, make a complaint thereof in writing and forward the same to a Magistrate having jurisdiction. A plain reading of the provision makes it manifestly clear that for eradication of evil of perjury and fabrication of evidence, the trial Court is vested with jurisdiction to act against the perjurer/fabricator/forgerer after recording a finding in respect of fabrication/giving of false evidence at the time of delivery of judgment/final order. The opinion regarding giving of false evidence/fabrication of false evidence is to be formed at the conclusion of trial and the finding is to be recorded to that effect when judgment is delivered. The action against the perjurer/fabricator/forgerer will follow the judgment and complaint can be filed by the Magistrate after affording opportunity of being heard to such person.

(3.) In the case in hand, the learned Magistrate was holding trial which was at the stage of recording of prosecution evidence. The trial was yet to conclude and the stage of delivery of judgment had not arrived. There was no occasion for forming of an opinion in regard to offence of perjury or fudging of evidence. Even the three witnesses, on the basis of whose statements, cognizance was taken to direct registration of FIR against petitioner, were not subjected to cross -examination. Their statements, in absence of cross -examination, do not constitute evidence. Learned Magistrate ignored the fact that the petitioner, in his capacity as the Investigating Officer, was the most material witness in the case who was yet to be examined at the trial. The learned Magistrate also failed to notice the contradiction in the examination -in -chief of aforesaid witnesses who departed from the written report of alleged victim of crime namely P.W. Imtiyaz Ahmed who had alleged that accused Mohd. Iqbal had assaulted him with a knife and not with a toka. Be that as it may, it was no stage to appreciate evidence and arrive at a finding that the investigating officer had fudged evidence and committed forgery. The finding is perverse and the impugned order directing lodging of FIR against petitioner and conducting of investigation on the basis of such FIR untenable. The impugned order, to that extent, cannot be sustained and the same is quashed. As a sequel thereto, FIR No. 41/2010 registered at Police Station Banihal for offence under Ss. 467, 468, 409, 201, RPC and all consequential proceedings therein are also quashed. Trial Court is directed to resume trial in File No. 178/Challan titled "State v/s. Mohd. Iqbal".