S.M. Modak, J.

1. Adjudicating rights and liabilities of litigants is the prerogative of Courts. Always, there are more than two parties before the Court. Be it civil litigation or criminal prosecution. One party asserts and another party denies and in this process of churning, what results is the final outcome. We call it as outcome of justice. In this process, a churning, Court acts as a third person. But, some time there are occasion for the Court to relinquish their job of independent third party adjudicator and to become law settler. Such occasion arises when wrong/sins are committed in the proceedings of court and before the open eyes of the Court. And for maintaining the justice delivery system in fact, Court on its own is required to set the law into motion.

2. One of such occasion is when the witness attended the Court proceeding for giving evidence, tells one fact at one time and totally inconsistent fact at other time. With this somersault by this witness, Court resorts to its jurisdiction of punishing perjurer.

3. There was such an occasion for a Special Judge (under the Prevention of Corruption Act), Akola. He dealt with a Special Case No. 4/1999 against one Samadhan Bhusari. He was tried for demanding Rs. 500/- from complainant Ganesh Deshmukh. Raid was successful on 24.04.1998 in the Office of MHADA at Akola. Present appellant is one of the trap panch.

4. All went well till the time of recording of evidence. It also went well till the time Prosecutor In-charge questioned appellant/panch-witness. But, when defence cross-examined appellant, he started saying different inconsistent stand about trap. During chief, he said money was demanded for release of allotment of tenement in favour of complainant (as expected by the prosecution). But, during cross-examination, appellant suggested the possibility of accepting the amount was for procurement of water supply line.

5. On closing of evidence and at final stage, Special Judge, Akola acquitted Samadhan Bhusari on 20.06.2005 for the offences under Sections 7, 13(1)(d) of the Prevention of Corruption Act. Special Judge was perturbed due to somersault of appellant and had chosen to resort to the jurisdiction (and rightly so) bestowed under the provisions of Section 344 of the Cr.P.C. He directed to seek appellant's explanation for initiating action for giving false evidence.

6. The written explanation given by the appellant does not find favour with the learned Special Judge. Finally, he sentenced him to simple imprisonment for one month and inflicted fine of Rs. 200/-. Appellant has to undergo 15 days simple imprisonment, if fine amount is not paid. Appellant has challenged the correctness of this judgment before me. Learned Advocate Shri Rohit Vaidya for appellant and learned Additional Public Prosecutor Shri M.J. Khan argued the matter. I have gone through the record made available. So too, I perused various judgment placed before me.

7. I have crystallized the issues. Broadly, they are procedural aspects and substantive aspects. So, the issues can be classified as (1) whether the learned Special Judge followed the procedure laid down under Section 344 of the Code of Criminal Procedure and (2) whether the act of appellant really falls under the ambit of giving false evidence.

COMPLIANCE OF PROCEDURE:

8. When a person comes to the Courts and offers himself as a witness, it is expected that he will speak truth as per his understanding. In a criminal prosecution, evidence of prosecution witness plays important role because his evidence is one of the determining factor for deciding the guilt. At the same time, law does not compel a witness to depose particular fact only. Before expressing any opinion on merits, something needs to be said about procedural aspect.

9. Broadly, there are two remedies available when a person commits perjury. One is under Section 340 and another is under 344 of Cr.P.C. They are included under the Chapter XXVI "Provisions as to Offences Affecting