SHREEKANT PATHAK Vs. EMPEROR

JUDGEMENT

(1.) This appeal is directed against the orders of the learned Sessions Judge of Monghyr whereby he ordered that complaints be filed against the three appellants, that is to say, against (1) Shreekant Pathak, under Section 193, Indian Penal Code, (opposite party in Miscellaneous case No. 1 of 1943 before him); (2) Parmeshwar Kandu, Chaukidar, under Section 211, Indian Penal Code, (opposite party in Miscellaneous case No. 2 of 1943 before him); and (3) Ajo Gope, under Section 193, Indian Penal Code, (opposite party in Miscellaneous case No. 3 of 1943 before him).

(2.) The facts of this case in so far as it is necessary to state them are as follows : On 80 August 1912, a Blenheim Bomber crashed in or near village Rohiar, Police Station Chautham, in the district of Monghyr. Three occupants of that bomber were alleged to have been murdered by a number of persons belonging to the locality. A first information report is alleged to have been lodged by the chauki-dar appellant, named Parmeshwar Kandu, on 25 September 1942, before the Sub- Inspector, in which the alleged first informant is said to have stated that ho had himself witnessed the occurrence. The Sub-Inspector of Police, during the course of his investigation, got the statements of the appellants Shreekant Pathak and Ajo Gope recorded by a Magistrate under the provisions of Section 164, Criminal P. C. It is said that these two persons had made statements to the effect that they had seen some persons committing the murder of the occupants of the ill-fated bomber. After investigation, the case was made over to the Special Judge of Monghyr to be tried under the provisions of Ordinance 2 of 1942. Before the learned Special Judge, who began the hearing of the case on 15 May 1943, all the three appellants stated that they had not seen the occurrence, but had been coerced by the police to figure as eye-witnesses, and in the case of the chaukidar to lodge the first information as an eye-witness. As a result of the statements of these persons, the learned Special Judge discharged the accused persons, as there was no evidence forthcoming against them. On 22 May, 1943, an application was made on behalf of the Crown before the learned Special Judge to file a complaint against them under Section 193, Indian Penal Code, for having made false statements before him. It may be noted at this stage that the Crown took the additional burden of proving,,in the event of a complaint being filed, against the appellants, that their statements before the Special Judge were deliberately false and that their statements made during the course of investigation of the case by the police, respectively, in the first information report and before the Magistrate under Section 164 of the Code were true. On 27 May 1943, the learned Special Judge issued notice on the appellants to show cause why they should not be prosecuted for perjury. Before the appellants could appear to show cause against the notice served upon them, Ordinance 2 of 1942 had been repealed by ordinance 19 of 1943, with the result that the Special Courts created by the repealed Ordinance ceased to exist.

(3.) In July 1943, the appellants appeared before the learned Sessions Judge of Monghyr who, after the repeal of Ordinance 2 of 1942 had withdrawn to his own file the cases which were until 26 June 1943, supposed to be pending in the Court of the Additional Sessions Judge of Monghyr who happened to be the Special Judge before whom these appellants had made their statements which were the subject-matter of the charge. against them. It is only necessary to mention here that on the repeal of Ordinance 2 of 1942 the Additional Sessions Judge treated himself as the successor-in-office to the Special Judge simply because the presiding officer of the two Courts was the same. On the abolition of the Court of the Additional Sessions Judge on 26 June 1943, the Sessions Judge treated himself as being in seisin of the case. In their show-cause petition, the appellants contended that they could not legally be prosecuted and that they had not made any false statements in the Court of the Special Judge, inasmuch the statements before the police or before the Magistrate under Section 164, Criminal P. C, had been extorted from them under coercion by the police. The learned Sessions Judge of Monghyr overruled these objections and directed, as stated above, that two of the appellants, who had made their statements under Section 164, Criminal P. C, to the learned Magistrate, should be prosecuted under Section 193, Indian Penal Code, and the chaukidar-appellant, Parmeshwar Kandu, was directed to be prosecuted under Section 211, Indian Penal Code, for having lodged a false first information report, and not under Section 193, Indian Penal Code, as proposed by the Crown, perr haps because the learned Sessions Judge felt a difficulty in his case about the applicability of that section. Hence the appellants have preferred this present appeal against that order of the learned Sessions Judge.