ORDER :

1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) has been filed against the order dated 07.10.2014 passed by Additional Sessions Judge, Kabirdham passed in Criminal Revision No.30/2013 upholding the order, of Judicial Magistrate First Class, Kabirdham passed in Criminal Case No.509/2012 (State of Chattisgarh Vs. Shivsahay) passed on 04.09.2013, whereby learned Magistrate while acquitting the accused Shiv Sahay from offence under Section 411 IPC simultaneously took cognizance against the present petitioner, who was the prosecution witness No.2 in that case and directed to initiate criminal proceedings for the offence under Section 344 IPC for giving false evidence.

2. Facts of the case, in brief, is that the petitioner is a Government servant working as Executive Magistrate cum Tahsildar at Pandariya, District Kabirdham. While performing his duties, petitioner prepared identification memo on 23.08.2012 of the seized property i.e. iron rods in respect of Criminal Case No.509/2012, whereby the accused in that case namely Shiv Sahay was charged for the offence under Section 411 IPC for purchasing 75 KG stolen iron rods. The said iron rods were duly identified by complainant namely Ritesh Singh by the size of the iron rods which was mentioned in the invoice of seized iron rods as 8 mm. However, the petitioner while deposing his statement in Criminal Case No.509/2012 as PW-2 stated in the chief-examination that the complainant has identified the said iron rods on the basis of the marks available on the rods. Thereafter, learned Magistrate while passing the judgment dated 04.09.2013, observed that the petitioner has deposed the statement contrary to the identification memo and stated that the complainant has not clearly identified such rods on the basis of any marks. So on the basis of such evidence, while passing the judgment of acquittal against the accused, learned Magistrate directed to initiate criminal proceedings against the present petitioner under Section 344 of IPC for giving false evidence. Thereafter, the petitioner challenged the same before the Revisional Court, which has been dismissed by the impugned order. Hence, this petition has been filed.

3. Learned counsel for the petitioner submits that the petitioner has prepared identification memo on 23.08.2012 and he was examined after more than six months i.e. on 28.02.2013 so there is every possibility that the petitioner might have forgotten the contents of identification memo and even if there was any discrepancy in the statement, then the Public Prosecutor should have refreshed the memory of the petitioner in view of Section 159 of Indian Evidence Act, 1872, but no suggestion was given at the time of examination. However, learned Magistrate, without considering that in the entire evidence, there is no mens rea of the petitioner in giving false evidence and that the petitioner is Executive Magistrate cum Tahsildar and while doing his official duties, such discrepancy occurred, passed the order of cognizance against the petitioner, which is not justifiable. Hence, he prays to quash the criminal proceedings initiated against the petitioner by learned Magistrate and to set aside impugned order.

4. On the other hand, learned State counsel would support the impugned orders and oppose the submission made by counsel for the petitioner.

5. Heard learned counsel for the parties and perused the documents annexed with the petition carefully.

6. Chapter 36 of the Cr.P.C. provides provisions with regard to the offences effecting the administration of justice and to preserve its decorum and to maintain its dignity. The condition precedent for the exercise of power under Section 344 of Cr.P.C. requires that the at the time of delivering judgment or final order the witness appearing before it has knowingly or willfully given false evidence or has fabricated false evidence with the intention that such evidence should be used in such proc