Legal Procedures in Case of a Prosecution for Penury under Indian Criminal Laws

(a) Record a finding to that affect;

(b) Make a complaint thereof in writing;

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(c) Send it to a First Class Magistrate having jurisdiction;

(d) Take sufficient security for the appearance of the accused before such Magistrate; or if the alleged offence is non-bailable, send the accused in custody to such Magistrate in a fit case;

(e) Bind over any person to appear and give evidence before such Magistrate.

These powers of the Court under S. 340 can be exercised by it on an application made to it in this behalf, or otherwise. Thus, the Court can also act suo motu (i.e. on its own). The Patna High Court has held that an application to the Court can even be moved by a person who is not a party to the proceedings. (Harekishna,—1929 8 Pat. 736)

Moreover, the Court’s powers under this section should be exercised only if it is expedient, in the interests of justice, that such an inquiry should be made. As observed by the Calcutta High Court, to prosecute people because they give evidence which is contradictory, merely on the basis of that contradiction, is a procedure of very doubtful validity. (Keramat ÀÍ,—1928 515 Cal. 1312).

Before, therefore, a Court can invoke this machinery provided by law against a private individual; he must be clearly told that his prosecution is in the interests of justice. Until this condition is fulfilled, there can be no foundation for a proceeding of this nature. (Liaqat Hussian v. Vinay Prakash,—1946 All. 62)

In K. Karunakaran v. T.V. Eachara Warrier (A.I.R. 1978 S.C. 290), there was a complaint against the Home Minister of Kerala in respect of an offence of giving false evidence under S. 193 of the Indian Penal Code. After due inquiry, the High Court sentenced the complainant for perjury. The matter was taken to the Supreme Court, which whilst refusing to interfere with the order of the High Court, observed as follows:

“It will not be expedient, in the interests of justice, to interfere with the High Court, unless we are absolutely certain that the two pre-conditions which are necessary for laying a complaint under Section 340 are completely absent. The two pre-conditions are that the material produced before the High Court make out a prima facie case for a complaint, and secondly, that it is expedient, in the interests of justice, to permit the prosecution under Section 193 of the Indian Penal Code.”

A Magistrate, to whom a complaint is made, as above, must proceed to deal with the case, as far as possible, as if it was a case instituted on a Police Report. If it is brought to the notice of the Magistrate that an appeal is pending against the decision in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided.

S. 344 then prescribes a summary procedure for a trial for giving false evidence. It provides that if, at the time of delivery of any judgment or final order, the Court expresses an opinion to the effect that any witness has knowingly or wilfully given false evidence or fabricated false evidence, with the intention that it may be used in such a proceedings, the Court may try such an offender, summarily and sentence him to imprisonment for upto 3 months, or fine upto Rs. 500, or both. However, before it does so, the following two conditions must be satisfied.

(a) The Court must be satisfied that it is necessary and expedient in the interests of justice that such a witness should be tried summarily.

(b) The witness should be given a reasonable opportunity of showing cause why he should not be punished for such offence.

In all such cases, the Court must follow the procedure presecribed for summary trials, as far as practicable.