Thomman v. Second Additional Sessions Judge And Another

1. This is an appeal preferred by a witness as per Section 341(1) of the Code of Criminal Procedure (for short ‘the Code’). Appellant was examined as PW9 in a Sessions trial (in S.C No. 51/88) held in the Second Additional Sessions Court, Ernakulam. Appellant deposed in court quite contrary to what he had said in a statement recorded by a magistrate as per Section 164 of the Code. Learned Sessions Judge, while disposing of the Sessions Case, took the view that appellant has given false evidence knowingly and without any regard for truth. Learned Sessions Judge considered it expedient to make an enquiry and hence issued a notice to the appellant to show cause why he should not be proceeded against for the offence under Section 193 of the Indian Penal Code. After considering the cause shown by the appellant, learned Sessions Judge caused a complaint to be filed before the local Chief Judicial Magistrate.

2. Section 341 of the Code provides an appeal at the instance of a person against whom a complaint has been made under Section 340 of the Code. According to the appellant, he gave the statement before the magistrate who recorded it under Section 164 of the Code as he was threatened by the police to say so. Appellant was interrogated by the investigating officer in a murder case. When he figured as eye witness, investigating officer took steps to have his statement recorded by a magistrate under Section 164 of the Code. In that statement, appellant had said, on oath, that he saw the occurrence. But when he was examined as prosecution witness in the Sessions Court, appellant said that he did not see the occurrence and what he told the magistrate earlier was under threat and coercion exerted by the police.

3. Learned Sessions Judge felt that appellant resiled from his earlier statement deliberately and hence found it expedient to resort to the action contemplated in Section 340 of the Code.

4. No doubt, what the appellant said before the magistrate and what he deposed before the Sessions Court are diametrically opposite to each other. At least, one of them must, therefore, be necessarily false. According to the appellant, what he told the magistrate was false. It is not the law that every false testimony should be put through the procedure prescribed in Section 340 of the Code. To attract the procedure, the person concerned should have intentionally given false evidence for the purpose of being used in a judicial procedure and the court should have been of opinion that it was expedient in the interest of justice to take action against him. Merely because a person gave false evidence, it is inadvisable or inexpedient to take action against him. “It is not any and every statement made by a witness that the court would wish to exanine. If the court is to notice every falsehood that is sworn to by parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. Again the edge of such weapon would become blunted by indiscriminate use. The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury (vide Muraleekrishna Das v. I.G of Police, 1978 K.L.T 292)

5. When a person resiles from his earlier statement, whether such statement was given on oath or not, the court has to decide whether it was the earlier statement that was false. If the earlier statement was false, no witness is expected to stick to it just to escape from a prosecution for perjury.

6. Beaumont, C.J has stated half a century ago in Ningappa v. Emperor (AIR 1941 Bombay 408) that “no doubt, a man making a statement on oath before a Magistrate under S. 164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently be goes into the witness box. To prosecute a man who has resiled from a false statement made under S. 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under S. 164 than that he should be induced to believe that it is to his interest, however false the statement may have been, to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent persons is too great to be risked”. Those observations stand in good stead even now despite the lapse of five decades.

7. In this case, the appellant when examined as a witness in the Sessions Court, said that his earlier statement (recorded under Section 164 of the Code) was given under threat and coercion and that he was in police custody for some days and that he was tutored by the police to say so. It is not clear whether the reason given by the police for giving such a statement recorded under Section 164 is correct or not. The enquiry conducted by the Sessions Judge does not appear to have gone into that aspect. Learned Sessions Judge seems to have adopted the view that what the witness said when he was examined under Section 164 of the Code was true and what he said in the Sessions Court is untrue. There is no material on record to conclude that it was his earlier statement which was true and not his later statement.

8. I do not think that this is a proper case which can be regarded as expedient, in the interest of justice, to proceed against the appellant under Section 340 of the Code.

9. In the result, I allow this appeal and set aside the direction to file a complaint against the appellant.