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Omkar Namdeo Jadhao And Others v. Second Additional Sessions Judge, Buldana And Another
Factual and Procedural Background
The matter concerned a notice issued on 3-12-1990 by the Second Additional Sessions Judge, Buldana, to the appellants for prosecution under Sections 194 and 195 of the IPC, alleging fabrication of records and setting up a false case against two women (Jamman and Laxmi, stated to be about 60 and 80 years old). The Additional Sessions Judge described them as infirm and unable to walk or stand without support, and therefore found it difficult to accept the police version that they pelted stones and kicked police officers while the police were apprehending one Latur Hasan. While setting aside the charges framed against them, the court issued notice under Section 340 of the CrPC for prosecuting the appellants under Sections 194 and 195 IPC. The Bombay High Court, Nagpur Bench, by judgment dated 10-3-1992 in Criminal Application No. 20 of 1991, confirmed the Sessions Judge’s observation/order, leading to the present appeal in which leave was granted.
Legal Issues Presented
- Whether issuance of notice under Section 340 CrPC to prosecute the appellants under Sections 194 and 195 IPC was justified when the Sessions Judge’s finding of fabrication/false case was based on Section 161 CrPC statements and no evidence had been recorded.
- Whether the Sessions Judge exceeded jurisdiction by recording a finding of police fabrication by relying on Section 161 statements and by assessing the accused persons’ physical features before their examination.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court noted that the Sessions Judge’s observation (as confirmed by the High Court) was based on statements recorded under Section 161 CrPC during investigation, and that admittedly no evidence had been recorded. Section 161 statements are not evidence; they can be used at trial only for the limited purpose of contradictions or omissions when the witness is examined. The Court further held that the matter could not be decided by contradicting the investigative version merely by looking at the physical features of the accused even before examination. In discharging the women and concluding that police officers had fabricated the record, the Sessions Judge was found to have overstepped jurisdiction by recording such a finding on an impermissible basis. The Court also observed that the High Court had not properly considered the matter while addressing discharge on other offences.
In these circumstances, the Court held that, given the Sessions Judge’s (improper) finding of fabrication/false case, issuance of notice under Section 340 CrPC was wholly unjustified and could not stand.
Holding and Implications
ALLOWED; NOTICE/ORDER UNDER SECTION 340 CrPC QUASHED.
The Sessions Judge’s order issuing notice under Section 340 CrPC for prosecuting the appellants under Sections 194 and 195 IPC was set aside. The direct effect was to terminate the Section 340 CrPC proceedings against the appellants arising from that notice; the opinion does not indicate any broader implications or the laying down of new precedent.
Order
1. Leave granted.
2. In this case we are concerned with the notice issued by the Second Additional Sessions Judge, Buldana, on 3-12-1990 to the appellants for prosecution under Sections 194 and 195, IPC for alleged fabrication of the record and setting up a case said to be false against two ladies, Jamman and Laxmi said to be aged about 60 and 80 years respectively. The Additional Sessions Judge had stated that they are infirm persons; unable to walk and stand without the support of others. Consequently, it would be difficult to believe the version of the police that they pelted stones and kicked the police officers while the latter were discharging official duty in apprehending Latur Hasan. While setting aside the charges framed against them, notice was issued under Section 340, CrPC for prosecution of the appellants under Sections 194 and 195, IPC.
3. It is seen that the observation made by the Sessions Judge, as confirmed by the Bombay High Court, Nagpur Bench in the impugned judgment dated 10-3-1992 made in Criminal Application No. 20 of 1991 is based on Section 161 statements recorded during the investigation. Admittedly, no evidence has been recorded. The court should not come to the conclusion on the basis of Section 161 statements which are not evidence. It can be used at the trial only for contradictions or omissions when the witness was examined. Nor could it be contradicted by looking at the physical features of the accused even before they are examined. The Additional Sessions Judge had discharged them concluding that the police officers had fabricated the record. It would appear that the learned Sessions Judge had overstepped his jurisdiction in recording a finding, while looking at the physical features of the accused, that the police had fabricated the record. The High Court has also not properly considered the matter while going into the question regarding discharge of the accused for other offences. Under these circumstances, we hold that in view of the finding recorded by the Sessions Judge of fabrication of the record and that the case is a false one, issuance of notice under Section 340, CrPC is wholly unjustified. The said order of the Sessions Judge is accordingly quashed.
4. The appeal is accordingly allowed.
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