Ismail Khan v. State Of Karnataka, Karnataka High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The petition arises from an order dated 24-11-1990 of the Judicial Magistrate First Class (JMFC), Shahapur, in Criminal Case No. 1215 of 1985. Shahapur Police had initially filed a charge-sheet against five persons for offences under Sections 143 and 506, IPC and under Section 2 of the Karnataka Prevention of Incitement of Refuse or to Defer Payment of Tax Act, 1981. Charges were framed; the accused pleaded not guilty; prosecution led evidence; and the learned Magistrate ultimately acquitted the accused under Section 248(1), Cr. P.C. While acquitting the accused, the Magistrate directed that P.W.1 (the present petitioner, Md. Ismail Khan, Village Accountant, Sagar) be registered for an offence under Section 193, IPC and issued a show-cause notice to him as to why he should not be punished for giving false evidence.

The petitioner (who was P.W.1 in the original trial) responded to the show-cause notice and filed a reply. The JMFC, being dissatisfied with that reply, decided that the petitioner should be tried for the offence under Section 193, IPC and listed the matter for recording the petitioner's plea on 30-11-1990. The petitioner filed this Criminal Petition under Section 482, Cr.P.C. challenging the Magistrate's order initiating proceedings under Section 193, IPC.

Legal Issues Presented

Whether a Magistrate can take cognizance of an alleged offence under Section 193, IPC (perjury/false evidence in judicial proceedings) and proceed to try the person when there is no complaint in writing of the Court as required by law.

Whether the Magistrate ought to have proceeded under Section 344, Cr. P.C. (summary trial for false evidence) instead of initiating proceedings under Section 193, IPC, and the legal distinction between proceedings under Section 344 and prosecution under Section 193 in relation to requirements for a prior complaint.

Whether a show-cause notice that initiates proceedings for giving false evidence (perjury) must be accompanied by the specific witness statements or portions thereof in respect of which the Court considers the accused to have committed perjury.

Whether the material before the Magistrate satisfied the legal requisites for holding a person liable for perjury — in particular the requirement that the earlier and subsequent statements be on oath and irreconcilable, and that the accused must have known or believed the statement to be false (mens rea or belief as to falsity).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 : AIR 1982 SC 1238	Holds that where false evidence is alleged to have been given in a judicial proceeding before a tribunal that is deemed to be a "Civil Court" for the purposes of Sections 193 and 228 IPC (by specific statutory deeming provisions), Section 195(1)(b)(i) makes a complaint in writing by the Court a pre-condition for criminal Courts to take cognizance of an offence under Section 193, IPC.	The court applied this precedent to conclude that, because no complaint in writing by the Court was filed in the present case, the Magistrate was not competent to take cognizance of an offence under Section 193, IPC and proceed to record the petitioner's plea on that charge.
Dr. S.P. Kohli v. High Court of Punjab & Haryana, (1979) 1 SCC 212 : AIR 1978 SC 1753	It is desirable and generally necessary that the portions of a witness's statement alleged to be perjurious should be specifically set out in, or annexed to, the show-cause notice so that the accused can give an adequate reply.	The court relied on this principle to hold that the show-cause notice in the present case was inadequate because it was not accompanied by the statement(s) of the petitioner in respect of which the Magistrate concluded that perjury had been committed.
Emperor v. Bankatram Lachiram, 1904 Cr. L. J. Vol. I 390 (Bombay)	When perjury is alleged from contradictory statements, conviction requires satisfaction that the statements are irreconcilable, that the earlier and later statements were on oath, and that the accused knew or believed the statement to be false (or did not believe it to be true). Courts must examine whether statements can be reconciled and not convict merely because contradictions exist.	The court cited this old Bombay High Court authority (including the statements of Chandavarkar J. and the later view of Chief Justice Jenkins on reference) to emphasize that perjury requires both oath-based statements and a requisite state of mind as to falsity; hence the Magistrate could not validly proceed on the basis of mere contradiction or unsworn complaint material.
Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406 : AIR 1973 SC 2190	The Court has discretion to order prosecution for giving false evidence and must exercise that discretion in light of all relevant circumstances; not every incorrect or false statement warrants ordering prosecution — only in glaring cases of deliberate falsehood where conviction is likely should prosecution be directed.	The court invoked this principle to underline that the Magistrate must exercise judicial discretion and should not initiate prosecution mechanically; the JMFC's initiation of proceedings under Section 193 was not justified on the material before it.

Precedent

Rule or Principle Cited For

Application by the Court

Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 : AIR 1982 SC 1238

Holds that where false evidence is alleged to have been given in a judicial proceeding before a tribunal that is deemed to be a "Civil Court" for the purposes of Sections 193 and 228 IPC (by specific statutory deeming provisions), Section 195(1)(b)(i) makes a complaint in writing by the Court a pre-condition for criminal Courts to take cognizance of an offence under Section 193, IPC.

The court applied this precedent to conclude that, because no complaint in writing by the Court was filed in the present case, the Magistrate was not competent to take cognizance of an offence under Section 193, IPC and proceed to record the petitioner's plea on that charge.

Dr. S.P. Kohli v. High Court of Punjab & Haryana, (1979) 1 SCC 212 : AIR 1978 SC 1753

It is desirable and generally necessary that the portions of a witness's statement alleged to be perjurious should be specifically set out in, or annexed to, the show-cause notice so that the accused can give an adequate reply.

The court relied on this principle to hold that the show-cause notice in the present case was inadequate because it was not accompanied by the statement(s) of the petitioner in respect of which the Magistrate concluded that perjury had been committed.

Emperor v. Bankatram Lachiram, 1904 Cr. L. J. Vol. I 390 (Bombay)

When perjury is alleged from contradictory statements, conviction requires satisfaction that the statements are irreconcilable, that the earlier and later statements were on oath, and that the accused knew or believed the statement to be false (or did not believe it to be true). Courts must examine whether statements can be reconciled and not convict merely because contradictions exist.

The court cited this old Bombay High Court authority (including the statements of Chandavarkar J. and the later view of Chief Justice Jenkins on reference) to emphasize that perjury requires both oath-based statements and a requisite state of mind as to falsity; hence the Magistrate could not validly proceed on the basis of mere contradiction or unsworn complaint material.

Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406 : AIR 1973 SC 2190

The Court has discretion to order prosecution for giving false evidence and must exercise that discretion in light of all relevant circumstances; not every incorrect or false statement warrants ordering prosecution — only in glaring cases of deliberate falsehood where conviction is likely should prosecution be directed.

The court invoked this principle to underline that the Magistrate must exercise judicial discretion and should not initiate prosecution mechanically; the JMFC's initiation of proceedings under Section 193 was not justified on the material before it.

Court's Reasoning and Analysis

The court's analysis proceeds in discrete legal steps, applying statutory provisions and the cited precedents to the facts disclosed in the record:

Pre-condition of complaint in writing: The court first observed that Section 195(1)(b)(i) (as explained in Chandrapal Singh) makes a complaint in writing by the Court a pre-condition for any criminal Court to take cognizance of an offence under Section 193, IPC when the alleged false evidence relates to a judicial proceeding. Because no such complaint by the Court was filed here, the Magistrate lacked competence to take cognizance under Section 193.

Distinction between Section 193, IPC and Section 344, Cr. P.C.: The court noted that a Magistrate has power under Section 344, Cr.P.C. to take cognizance and summarily try certain cases of giving false evidence, but the maximal punishment under Section 344 summary trial (three months' imprisonment or fine up to Rs.500) is materially different from the maximum punishment for an offence under Section 193 (up to seven years' imprisonment). Thus, summary proceedings under Section 344 are not equivalent to prosecution under Section 193; if the Magistrate intended to proceed summarily under Section 344, no prior complaint would be necessary — but the Magistrate did not proceed under Section 344 and instead proceeded as if initiating a Section 193 prosecution without the required complaint.

Requirements for show-cause notice: Following Dr. S.P. Kohli, the court emphasized that a show-cause notice should, as a matter of good practice and necessity, specifically set out or annex the portions of the witness's statement alleged to be perjurious so that the accused may meet those specific allegations. In the present case the show-cause notice was not accompanied by the relevant statement(s) of the petitioner; the Magistrate merely perused the complaint and deposition and concluded perjury had occurred.

Substantive elements of perjury: Citing the older jurisprudence (Emperor v. Bankatram Lachiram and its statements on reference), the court reiterated that to make a person liable for perjury two key conditions must be satisfied: (a) the earlier statement and the subsequent contradictory statement must both have been made on oath and be irreconcilable, and (b) it must be shown that the accused knew or believed the statement to be false or did not believe it to be true. The court observed that the Magistrate's conclusion was based on previous complaint material that was not on oath and therefore did not meet these requirements.

Exercise of discretion in ordering prosecution for false evidence: Drawing on Santokh Singh, the court reiterated that the power to direct prosecution for false evidence is discretionary and should be exercised only in cases of clear, deliberate falsehood where conviction is likely. The court found that given the absence of a formal complaint by the Court, the absence of the required annexed statements to the show-cause notice, and the insufficiency of material showing oath-based irreconcilable statements and requisite belief as to falsity, the Magistrate's initiation of Section 193 proceedings was unjustified.

Holding and Implications

Holding:

The petition is allowed. The order of the Magistrate initiating proceedings against the petitioner under Section 193, IPC is hereby quashed.

Implications:

The direct effect of the decision is the quashing of the Magistrate's order that initiated prosecution under Section 193, IPC against the petitioner; the magistrate may not proceed on that charge in the absence of a complaint in writing by the Court and without compliance with the procedural requirements identified in the opinion.

The court's decision rests upon the established statutory and precedential requirements (need for complaint in writing where Section 195 procedures apply, the distinction between summary proceedings under Section 344 and prosecution under Section 193, and the need for show-cause notices to specify the witness statements alleged to be false). The opinion does not purport to lay down any novel legal principle or broad new precedent beyond applying these existing authorities to the facts of this case.

This summary has been prepared exclusively from the text of the provided opinion. No facts, rulings, or inferences beyond those explicitly presented in that opinion have been added.

Ismail Khan v. State Of Karnataka

1. This Criminal Petition is filed by the petitioner under Section 482, Cr. P.C against the order dated 24-11-1990 passed by the JMFC Shahapur, in C.C No. 1215 of 1985.

2. I have heard the learned counsel for the petitioner and the learned Government Pleader fully and perused the records of the case. The Shahapur Police filed charge sheet against five persons alleging that they have committed the offences punishable under Sections 143 and 506, IPC and also under Section 2 of the Karnataka Prevention of Incitement of Refuse or to Defer Payment of Tax Act, 1981. The learned Magistrate framed charges for the said offences against the accused in that case and all the accused pleaded not guilty to the charge and claimed to be tried. Thereafter the prosecution led its evidence and after hearing both sides the learned Magistrate acquitted the accused in that case under Section 248(1), Cr. P.C for the offences alleged against them. While acquitting the accused in the said case, he also ordered the case to be registered against P.W 1 Md. Ismail Khan, son of Md. Yaseen Khan, Village Accountant, Sagar, for the offence punishable under Section 193, IPC and he ordered for issue of show-cause notice to the said P.W 1 as to why he should not be punished for giving false evidence in the judicial proceedings.

3. The petitioner who is P.W 1 in that case has filed this petition. He appeared before the JMFC Shahapur, in response to the show-cause notice and filed his reply. The learned JMFC was not satisfied with the reply given to the show-cause notice and he came to the conclusion that the petitioner should be tried for having committed the offence punishable under Section 193, IPC during the course of the trial in C.C No. 307 of 1984 and he posted the case for recording the plea of the petitioner on 30-11-1990.

4. There is no complaint filed for the offence under Section 193, IPC by the Court. In Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 : AIR 1982 SC 1238 it has been held by the Supreme Court as follows:—

“The Rent Control Officer shall be deemed to be a Civil Court within the meaning of Sections 345 and 346 of Cr. P.C, 1973 and in view of sub-section (2) of Section 24 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, shall be a Civil Court for the purpose of Section 193. IPC Section 195(3), Cr. P.C provides that the expression ‘Court’ in Section 195(1)(b)(i) will include a Tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of the section, Section 195(1)(b)(i) provides a pre-condition for taking cognizance of an offence under Section 193, IPC, viz., a complaint in writing of the Court. In view of the specific provision made in sub-section (2) of Section 34 of the Rent Act that for the purposes of Sections 345 and 346, Cr. P.C Rent Control Officer, assuming it to be a Tribunal as held by the High Court and not a Court, would be deemed to be a Civil Court and, therefore, for purposes of Sections 193 and 228, IPC a fortiori any proceeding before it would be a judicial proceeding within the meaning of Section 193, IPC. If, therefore, according to the complainant false evidence was given in a judicial proceeding before a Civil Court and the persons giving such false evidence have committed an offence under Section 193, IPC in or in relation to a proceeding before a Court, no Court can take cognizance of such offence except on a complaint in writing of that Court. The grievance in the instant case, is that a false affidavit was filed by the accused which was receivable as evidence in the allotment proceeding before the Rent Control Officer which as a Tribunal would be comprehended in the expression “Court”. If false evidence in the form of affidavit filed by the accused was given before Rent Control Officer, a Civil Court for the purpose of Section 193, IPC that being a judicial proceeding Section 195(1)(b)(i) would be attracted. For the purpose of Section 195(1)(b)(i) a complaint by the Court is a pre-condition for taking cognizance of such offence by any Criminal Court. If this pre-condition is not satisfied the Court will have no jurisdiction to take cognizance”.

5. In this case, there is no complaint filed by the Court as such. Therefore, the learned Magistrate was not competent to take cognizance of the offence under Section 193, IPC and proceed to record the plea of the petitioner.

6. The Magistrate has got powers under Section 344, Cr. P.C to take cognizance of the offence of giving false evidence in the proceedings before him and after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try the offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both. The offence under Section 193, IPC is punishable with imprisonment for 7 years in maximum whereas the offence for which the person can be tried summarily by a Court under Section 344, Cr. P.C is punishable in maximum with imprisonment for 3 months or fine which may extend to Rs. 500/- or with both. Looking to the punishment prescribed for the offence of giving false evidence contemplated under Section 344, Cr. P.C it is clear that the offence for which a person can be summarily tried under Section 344, Cr. P.C is not the offence punishable under Section 193, IPC and if the Magistrate is to proceed under Section 344, Cr. P.C against a person, no complaint will be necessary. But, in the instant case, the Magistrate has proceeded against the petitioner for the offence under Section 193, IPC when there is no complaint by the Court itself.

7. Even if the Magistrate were to proceed summarily against the person under Section 344, Cr. P.C for which no previous complaint is necessary, still the law requires that the show-cause notice should be accompanied by the statement of the witnesses in regard to which the accused has, in the opinion of the Court, perjured himself.

8. In Dr. S.P Kohli v. The High Court of Punjab and Haryana, (1979) 1 SCC 212 : AIR 1978 Supreme Court 1753, the Supreme Court has held as follows:—

“(C) Penal Code 45 of 1860, Section 193 — Perjury — Show cause notice — Contents of.

It is highly desirable and indeed very necessary that the portions of the witness's statement in regard to which the accused has, in the opinion of the Court, perjured himself, should be specifically set out in or form annexure to the notice issued to the accused so that he is in a position to furnish an adequate and proper reply in regard thereto and be able to meet the charge”.

9. In this case, it is not disputed that the show-cause notice was not accompanied by the statement of the petitioner in respect of which the learned Magistrate has come to the conclusion that the petitioner had committed perjury. The learned Magistrate has perused the complaint given by the accused and his deposition and then he came to the conclusion that the petitioner has committed perjury. It is necessary that in order to make a person liable for perjury, he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on a subsequent occasion. His earlier statement regarding the facts must be on oath and his subsequent statement also must be on oath and if both the statements are opposed to each other and they cannot be reconciled, then a person may be liable to be proceeded against for perjury under Section 344, Cr. P.C or under Section 193, IPC. An old Judgment of the High Court of Judicature at Bombay in Emperor v. Bankatram Lachiram, 1904 Criminal Law Journal Vol. I 390 is illuminating on this point. In the said Judgment, Chandavarkar J., has held as follows:—

“It is a well-known rule of law, applied by eminent Judges, to case of perjury arising out of contradictory statements that the Court dealing with them should not convict unless fully satisfied that the statements are from every point of view irreconcilable; and if the contradiction consists in two statements opposed to each other, as to matters of inference or opinion on which a man may take one view at one time and a contrary view at another, there can be no perjury, unless he has, on oath, stated facts on which his first statement was based and then denied these facts on oath on a subsequent occasion.

It is the duty of the Court to see whether the statements can be reconciled or not. The accused in a criminal case is merely on the defensive and unless there is any positive admission of a fact by him, any omission on his part to explain what indeed can be explained without his explanation should not be pressed against him. His failure to reconcile contradictory statement is not fatal to his case.

The construction of two contradictory depositions, like the construction of every document, is a question of law, not of fact.

The Criminal Procedure Code gives the High Court the power to go into evidence in revision. As a matter of practice, however, it will not interfere in revision with findings of facts based upon appreciation of evidence, but it will interfere under special circumstances or where there is an error of law”.

10. As Justice Aston differed with Justice Chandavarkar, the case was referred and on a reference Chief Justice Jenkins has held as follows:—

“Per Jenkins, C.J — (on reference) — To convict an accused of giving false evidence it is necessary to show not only that he has made a statement which is false, but also that he either knew or believed it to be false or did not believe it to be true.

Where it is sought to establish the offence of perjury on contradictory statements, although the Court may believe that on the one or the other occasion, the prisoner swore what was not true, it is not a necessary consequence that he committed perjury; for there are cases in which a person might very honestly and conscientiously swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time be convinced that he was wrong and swear to the reverse without measuring to swear falsely either time.

The controlling power of the High Court in revision of criminal cases is a discretionary power, and it must be exercised with regard to all the circumstances of each particular case, anxious attention being given to the said circumstances, which vary greatly. This discretion ought not to be crystallized as it would become in course of time by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion, which the legislature has committed to them. This discretion, like all other Judicial discretions ought, as far as practicable, to be left untramelled and free, so as to be fairly exercised according to the exigencies of each case”.

11. In that case, it is held that in order to make a person liable for perjury, the earlier statement of the person must be on oath and his subsequent statements also must be on oath and it is not only necessary that he made a statement which is false, but also that he either knew or believed it to be false or did not believe it to be true. In Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406 : AIR 1973 Supreme Court 2190, the Supreme Court has held as follows:—

“Index Note — (B) Criminal P.C, Section 195(b) — Power of Court to direct prosecution for giving false evidence — Exercise of.

Brief Note— (B) Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The Court orders prosecution in the larger interest of the administration of Justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Two frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the Court should direct prosecution”.

12. In this case, the JMFC has only come to the conclusion on the basis of the previous complaint which is not made on oath by the petitioner. Therefore, the lower Court was not justified in proceeding against the petitioner under Section 344, Cr. P.C

13. For the reasons discussed above, I proceed to pass the following order:—

The petition is allowed. The order of the Magistrate initiating proceedings against the petitioner under Section 193, IPC is hereby quashed.

Crl. P. No. 1669/1990

Ismail Khan v. State Of Karnataka

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ismail Khan v. State Of Karnataka

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