Case Note & Summary
The case arose from criminal proceedings in which the police officers (appellants) were accused of fabricating records and setting up a false case against two elderly women, Jamman and Laxmi, aged about 60 and 80 years respectively. The Second Additional Sessions Judge, Buldana, while discharging the two women, issued notice to the appellants under Section 340 of the Code of Criminal Procedure, 1973 to show cause why they should not be prosecuted under Sections 194 and 195 of the Indian Penal Code, 1860 for alleged fabrication of record. On 3 December 1990, the Sessions Judge found the women to be infirm, unable to walk or stand without support, and therefore disbelieved the police version that they pelted stones and kicked police officers while the latter were discharging official duty in apprehending Latur Hasan. The Judge concluded, based on 161 statements recorded during investigation and physical observation of the women, that the police had fabricated the record and the case was false. The Bombay High Court, Nagpur Bench, in Criminal Application No.20/91 confirmed this finding by judgment dated 10 March 1992. The appellants challenged that order before the Supreme Court. The core questions were whether statements recorded under Section 161 Cr.P.C. could be treated as evidence; whether physical features of witnesses before their examination could justify a finding of fabrication; and whether the issuance of notice under Section 340 Cr.P.C. was justified in the absence of recorded evidence. The appellants contended that the Sessions Judge's finding was based on inadmissible material and that no evidence had been recorded. The respondents sought to sustain the notice relying on the Sessions Judge's and High Court's orders. The Supreme Court held that statements recorded under Section 161 Cr.P.C. are not evidence; they can be used at trial only for contradictions or omissions when the witness is examined. Physical features of witnesses cannot be evaluated or contradicted before their examination. The Sessions Judge had overstepped his jurisdiction in recording a finding of fabrication while looking at the physical features of the accused. The High Court also failed to properly consider the matter while examining the question of discharge of the accused for other offences. In view of the finding recorded by the Sessions Judge that the police had fabricated the record and the case was false, the issuance of notice under Section 340 Cr.P.C. was held wholly unjustified. The Supreme Court quashed the Sessions Judge's order issuing notice under Section 340 Cr.P.C. and allowed the appeal.
Headnote
A) Criminal Procedure - Prosecution for Perjury - Section 340 Criminal Procedure Code, 1973; Sections 194 and 195 Indian Penal Code, 1860 - Notice for prosecution quashed because Sessions Judge based finding of fabricated record on statements under Section 161 Cr.P.C. and physical features of accused without recording evidence - Held that statements recorded under Section 161 Cr.P.C. are not evidence and can be used only for contradictions or omissions; physical features of witnesses cannot be evaluated before their examination; Sessions Judge overstepped jurisdiction (Paras 1-2).
Issue of Consideration
Whether issuance of notice under Section 340 Cr.P.C. for prosecution under Sections 194 and 195 IPC, on the basis of 161 statements and physical features of accused without recording any evidence, was justified
Final Decision
Appeal allowed; order of Sessions Judge issuing notice under Section 340 Cr.P.C. quashed; finding of fabrication of record and false case held wholly unjustified.
Law Points
- Statements recorded under Section 161 Cr.P.C. are not evidence
- can be used only for contradictions or omissions
- physical features of witnesses cannot be considered before examination
- Sessions Judge overstepped jurisdiction in recording finding of fabrication based on 161 statements and physical observations
- notice under Section 340 Cr.P.C. wholly unjustified when finding of fabrication not based on recorded evidence
