TMI Blog1973 (4) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... station Kotwali Sub-District Nawabganj, District Barabanki on February 7, 1966, lzhar Hussain respondent and some others were tried in the court of the Additional District Magistrate (Judicial), Barabanki for offences under ss. 147, 323/149 and 325/149, I.P.C. Several witnesses were examined in support of the prosecution case. Santokh Singh appellant appeared as P.W.4. In his examination in chief, so far as relevant for our purpose, he had deposed on September 3, 1966 as follows :- I had gone to the jail for identifying the accused persons. By putting his hand on Mohd, Zahir, Usman, Shahnshah, Puttan and Izhar Husain the witness stated, I had seen them in the marpit and thereafter in the identification parade in the jail- In cross-examination, he had stated, inter alia I did not see among the assailants the accused lzhar Hussain present in Court. I did not happen to see this boy in that night. The men of the Octroi post said to me that Anwar's son Izhar was also present among the assailants. I identified this boy in the jail at the instance of the people of the Octroi post. The Additional District Magistrate trying the cases acquitted all the accused of the offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66 S. C. 1863) and two other decisions of the Madras High Court. In his order, however, the learned Magistrate also made a reference to Shabir Hussain Bholu v. State of Maharashtra ( A.T.R. 1963 S. C. 816). lzhar Hussain's application was considered by the Magistrate to be misconceived in view of the decision in Shabir Hussain's case (supra) and rejected. lzhar Hussain took the matter on appeal to the court of the Sessions Judge but with no better fate. The Sessions Judge also referred to the aforesaid two decisions of this Court and observed as follows Applying the said principle of law as laid down by their Lordships, it is obvious that the entire material was before the Court below and in spite of the fact that it arrived at the finding that the witness had perjured, it did not decide to proceed under Section 479-A, Code of Criminal Procedure. In these circumstances, it was not open to the Court below to have proceeded for perjury under Section 479-A, Code of Criminal Procedure, as prayed by the learned counsel appearing on behalf of the appellant, because upon the facts of the present case, out of which this appeal has arisen, the bar of clause (6) of Section 479-A cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the complaint under s. 21 1, I.P.C. be filed against the appellant for falsely charging Izhar Hussain for the offences already mentioned. 7-L 944 Sup CI/73 In this Court,- Shri Gupta has very forcefully contended that on the material on the record this direction is wholly unjustified, if not positively illegal, being based on misreading of evidence and on ,erroneous view of law. According to the submission, the appellant had neither lodged the F.I.R. nor otherwise instituted any criminal proceeding or falsely charged Izhar Hussain within the contemplation of s. 21 1, I.P.C.Besides, there is absolutely no material on the record on which theHigh Court could have formed an opinion that it is expedient in the interest of justice that a complaint under s. 21 1, I.P.C. should be filedagainst the appellant. Shri- Kohli on behalf of the respondents has tried to support the order of the HIgh Court and has submitted that, as observed by Madholkar, J. in Haridas v. State of West Bengal([1964] 7. C.R. 237) the words or :falsely charges in s. 211, I.P.C. are not restricted by the words institutes or causes to be instituted any criminal proceeding . The Legislature according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant for our purpose lays down 476. (1) When any Civil, Revenue or Criminal Court is, whether on application Procedure in cases made to it in this behalf or other mentioned in wise, of opinion that it is expedient in section 195. the interests of justice that an inquiry should be made into, any offence referred to in section 195, subsection (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate, of the first class having juris- diction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non- bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of offence with intent to injure. The essential ingredient of an offence under s. 211, I.P.C. is to institute or cause, to be instituted any criminal proceeding against a' person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the appellant cannot be said to have instituted any criminal proceeding against any person. So, that part of s. 211, I.P.C. is eliminated. Now, the expression falsely charges'.' in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. To falsely charge must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial. The words fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution. The High Court seems to have misunderstood the appellant's evidence and has also failed to apply its mind to the question of expediency. Reference by the High Court to identification parade is also somewhat inappropriate. Identification at test parades could by no stretch be considered to amount to a false charge against Izhar Hussain as contemplated by s. 211, I.P.C. Such identification is not substantive evidence and it can only be used as corroborative of the statement in court. The identification parade thus could not improve the prosecution case. Besides, we entertain considerable doubt if the High Court had at all jurisdiction to make an order of complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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