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1980 Supreme(Bom) 145
IN THE HIGH COURT OF BOMBAY
Rele B.J., J.
Kapoorghand V. Jain and another….Petitioner.
Versus
State of Maharashtra and others….Respondents.
Cri. Revn. Appln. Nos. 598 with 601 of 1979, decided on 26-6-1980.
Advocates appeared:
Vilas V. Kamat, for petitioners.
B.Y. Deshmukh, Public Prosecutor, for State.
Sub-section (3) of section 344 of the New Code does not imply a bar on taking action under section 340 once action under section 344 is initiated.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 344 - INTERPRETATION - ELECTION OF PROCEEDINGS - SUMMARY TRIAL OR COMPLAINT - SECTION 340 - RELATIONSHIP - DOUBLE JEOPARDY - SCOPE AND APPLICABILITY.
Fact of the Case:
The petitioners were charged with giving false evidence in a customs case. The trial court, after convicting the accused in the customs case, initiated proceedings against the petitioners under section 344 of the Code of Criminal Procedure, 1973 (the "New Code"), which allows for summary trial of witnesses who knowingly or wilfully give false evidence. However, the trial court later dropped the proceedings under section 344 and filed a complaint against the petitioners under section 340 of the New Code, which provides for a regular trial for offences affecting the administration of justice.
Finding of the Court:
The High Court held that the trial court had the jurisdiction to file a complaint under section 340 of the New Code, even though it had initially initiated proceedings under section 344. The court interpreted sub-section (3) of section 344, which states that "Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section," as not implying a bar on taking action under section 340 once action under section 344 is initiated. The court also held that the petitioners were not put in double jeopardy, as no judicial decision had been rendered on the accusation against them.
Issues: 1. Whether the trial court had the jurisdiction to file a complaint under section 340 of the New Code, after having initiated proceedings under section 344. 2. Whether the petitioners were put in double jeopardy by the trial court's actions.
Ratio Decidendi: 1. The court interpreted sub-section (3) of section 344 as not implying a bar on taking action under section 340 once action under section 344 is initiated. The court reasoned that the wording of the sub-section merely states that if the Court does not choose to proceed under section 344, then the power of the Court to proceed under section 340 for the offence of perjury is not taken away. It does not proceed further to state that if the Court chooses to proceed under section 344, then it cannot take action under section 340. 2. The court held that the petitioners were not put in double jeopardy, as no judicial decision had been rendered on the accusation against them. The court explained that the picas of autrefois convict and autrefois acquit apply only where there has been a former judicial decision on the same accusation in substance, and where the question in dispute has already been decided.
Final Decision: The High Court dismissed the petitioners' revision applications and granted them leave to appeal to the Supreme Court under Article 134(1), (c) of the Constitution.
2. The Rule raises an important question of law on the interpretation of section 344 of the Code of Criminal Procedure, 1973. The question is whether, once proceedings are initiated under section 344 of the Code of Criminal Procedure, 1973, by the Magistrate against witnesses appearing in any proceedings before him on the ground that the witnesses had knowingly or wilfully given false evidence or had fabricated false evidence, with the intention that such evidence should be used in such proceedings, the Magistrate can, during the course of such proceedings, initiate proceedings under section 340 of the Code of Criminal Procedure.
3. The facts giving rise to these Revision Applications are that the accused one Babulal Walchand Shah was charged under section 135(ii) read with section 135(a) of the Customs Act, 1962, for owning, possessing or controlling 325 watches and 67 watch-straps of foreign make. The prosecution examined Panch witnesses Kapoorchand Walchand Jain(Petitioner in Criminal Revision Application No. 598 of 1979) and Ambalal Krishna Jain.(Petitioner in Criminal Revision Application No. 601 of 1979) in that case. The learned Chief Metropolitan Magistrate, Bombay, before whom the trial proceeded against the said accused Babulal Walchand Shah in Customs Case No. 468/CW of 1974 convicted the accused and in the judgment the learned. Chief Metropolitan Magistrate stated :-
“Before I close, it may be observed that both the Panch witnesses have purposely given false evidence in order to help the accused who is their neighbour and casteman. Both of them are businessmen and seemed to be intelligent persons. They have signed the panchanama in English and Panch Kapoorchand is definitely well conversant with English as he explained the contents of the panchanama to the other Panch in Hindi. Both of them admitted to have been present throughout, when the Pancha-nama was written and yet they have knowingly and wilfully given false evidence with respect to the search and the recovery of the contraband and, therefore, I am satisfied that it is necessary and expedient in the interest of justice that they should be tried summarily for giving false evidence. I, therefore, take, cognizance of the offence committed by them as per section 344 of the Criminal Procedure Code, 1973, and direct that notices be issued to them to show cause why they should not he punished for commission of the offence of giving false evidence.”
Pursuant to the order passed by the learned Chief Metropolitan Magistrate on 30-1-1976, notices were served on the same day, i e., on 30-1-1976, being C. C. No. 61 /N of 1976, on both the petitioners herein, viz., Kapoorchand Verimal Jain and Ambalal Krishna Jain, stating that it has been observed by that Court that they have purposely given false evidence in order to help the accused, that they had knowingly and wilfully given false evidence in the said case No. 468/CW of 1974, that the Court being satisfied that it is necessary and expedient in the interest of justice that they should be tried summarily for giving false evidence, that the Court has taken cognizance of the offence committed by them as per section 344 of the Criminal Procedure Code, 1973, and that they were required to attend the Court on 28th February 1976 to show cause why they should not be punished for the said offence.
4. It appears that thereafter the notice was kept pending as the appeal preferred by accused Babulal Walchand Shah against his conviction was admitted by this Court. Case No. 61 /N of 1976 w
