IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.1252/2015 BETWEEN:
NARVEEZ PASHA S/O. EKBAL HUSEN AGED ABOUT 19 YEARS R/AT DEVANAHALLI-562 110 BANGALORE RURAL DISTRICT. ... PETITIONER (BY SRI. RAHUL P., ADV.) AND:
THE STATE BY DEVANAHALLI POLICE REP. BY SPP HIGH COURT OF KARNATAKA BANGALORE-560 001. ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED 29.01.2015 PASSED AGAINST THIS PETITIONER IN S.C.NO.40/2009, ON THE FILE OF THE II-ADDL. DIST. AND SESSIONS JUDGE, BANGALORE RURAL DIST. AT BANGALORE, DIRECTING THE OFFICE TO FILE A COMPLAINT AGAINST THE PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel appearing for the petitioner and the learned Additional SPP appearing for the respondent-State.
2. The short point that arises for consideration in this petition is “whether the direction issued by the learned Magistrate for initiation of the proceedings against the witness (PW12) for perjury under Section 344 Cr.P.C. could be carried into effect after the said judgment is set aside by the appellate court?”
3. The brief facts of the case are that in a trial conducted by the II Addl. District and Sessions Judge, Bangalore Rural District, in S.C. No.40/2009, the prosecution examined PW-12. In the course of his evidence, he was treated as hostile by the prosecution. While rendering the judgment, the trial Court on considering the material on record came to the conclusion that the witness examined by the prosecution namely PW-12 has intentionally committed perjury thereby rendering him liable for prosecution under Section 344 of Cr.P.C. The relevant discussion made by the trial Judge finds place at para-35 of the judgment dated 27.01.2015 in S.C.No.40/2009. It is extracted hereinbelow:
“PW12 Narveez Pasha who accompanied with the Nandeesha has deposed that he know the PW.1 Kumar, deceased Nandeesha as they were friends. He never took deceased Nandeesha upto Tippu garage, Devanahalli or in Maruti Van along with accused Nos.2 to 4. He does not know about kidnapping of deceased Nandeesha and commission of murder by the accused Nos.2 to 4. Hence, PW.12 Narveez Pasha being a sole eyewitness turned hostile and deposed contrary to the case of the prosecution. Even in the cross-examination of the Public Prosecutor PW.12 Narveez Pasha tried to help to the accused persons and go bye to the case of the prosecution. Even he is not ready to admit the terms of the statement given by him before the JMFC, Devanahalli u/s 164 of Cr.P.C. It seems that PW12 Narveez Pasha tried to suppress the material facts before the Court and tried to safeguard the interest of the accused persons by adducing false evidence. Because his statement has been recorded by the PW-30:Chandra Shekhar being a Civil Judge and JMFC, Devanahalli. So, the hostile evidence of PW.12 will not take away the case of the prosecution.”
4. While hearing the accused on sentence, the Public Prosecutor made a submission to register a criminal case against PW.12-Narveez Pasha under Section 340 of Cr.P.C. Accordingly, learned Sessions Judge directed the office to file a complaint before the learned Magistrate against PW.12 for giving false evidence before the Court as per the decision reported in 2001(1) Crimes KAR Page 13 (DB).
5. It is a matter of record that judgment of conviction rendered by the trial Court was challenged in appeal before this Court by the accused and on reappreciating the material on record, this Court by order dated 03.08.2018 in Crl.A.No.289/2015 and other connected appeals, set aside the judgment of conviction and order of sentence dated 27/29-01-2015 passed by the II Addl. Sessions Judge and Special Judge in S.C.No.40/2009 and consequently, acquitted the accused of all the charges levelled against them. It needs to be noted that the appellate Court has not expressed any opinion on the direction issued by the trial Court.
6. The learned counsel for the petitioner has relied on a decision rendered by the Gujarat High Court in the case of Jitendra Kumar Suryakant Patel Vs. State reported in LAWS(GJH)2000 9 85 and would submit that the appellate Court having set aside the entire judgment and order of sentence, the trial court is bound to abide by the judgment of acquittal rendered by the Appellate Court, as such, there is no justification for continuation of the proceedings against the petitioner under Section 344 of Cr.P.C.
7. Learned Additional SPP for respondent State however submits that the appellate court having not recorded any findings either affirming or setting aside the direction issued by the trial Court, the trial Court is bound to implement the order passed by it and prosecute witness-PW12 under Sec. 340 of Cr.P.C.
8. In appreciating the controversy, it is relevant to note that even though, the trial Court has held that PW12 has given hostile evidence before the Court and he has suppressed the material facts, the trial court has not recorded any specific finding that PW-12 has committed any act of perjury within the meaning of Sec.340 of Cr.P.C. On the other hand, the extracted portion of the judgment of conviction rendered by the trial Court goes to show that the trial Court has infact relied on the evidence of PW12 as well. Trial court has not discarded the evidence of PW12 on account of his hostility. It is now established that the evidence of a hostile witness who is subjected to cross examination by the prosecution does not get washed off altogether. Court is entitled to rely on such portion of the evidence of a hostile witness which is in conformity with the prosecution case. Therefore in the absence of clear finding to the effect that the PW12 has committed perjury, the direction issued by the learned Magistrate to lodge a complaint against PW12 under Section 344 Cr.P.C., in my view, cannot be sustained. That apart the very judgment of conviction rendered by the trial court having been set at naught by the Appellate Court, in terms of Section 344(4) of Cr.P.C., the trial Court is bound by the decision rendered by the Appellate or Revisional Court. It is also significant to note that as on the date of cross examination of PW12, he was a minor.
9. Taking into consideration all the above facts and circumstances, especially in view of the absence of any finding by the trial Court to the effect that, it is necessary and expedient in the interest of justice that inquiry should be made against PW12, in my view, the petition deserves to be allowed. Accordingly, petition is allowed.
The impugned direction issued by the learned Magistrate and the consequent registration of the complaint against the petitioner is quashed.
Sd/- JUDGE JS/-