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Criminal Appeal No. 121 of 1983. decided on 24th September, 1986

‑‑‑S. 476‑‑Penal Code (XLV of 1860), S. 193‑‑Accused issued notice under S. 476, Cr.P.C. followed by formal charge and then convicted under S. 193, P.P.C. on same day, without affording him proper opportunity to contest charge‑‑Proceedings, being abuse of process of Court were set aside in circumstances.

Ramappa Kurbar and another v. Emperor 1942 P C r. L J 167 ref.

Muhammad Hayat Junejo for Appellant.

A. Sattar Sheikh A.A.‑G. for the State.

Date of hearing: 24th September, 1986.

The appellant has been convicted by the learned 1st Additional Sessions Judge, Hyderabad under section 193, P.P.C. and sentenced to suffer R.I. for 6 months and to pay a fine of Rs.2,000 or in default of payment of fine to suffer further R.I. for two months more.

The facts in brief are that the appellant had appeared as a witness in Case No. 347 of 1976 (State v. Asadullah and others) under section 302, P.P. C. and according to the judgment, he has not supported the prosecution. He was declared hostile. An application under section 476, Cr.P.C. was moved by the State that the appellant has committed an offence under section 193, P.P.C. The appellant was tried and convicted.

The learned counsel for the appellant has stated that no opportunity was afforded to the appellant to engage a counsel and on the same day the notice was issued, charge was framed and appellant was convicted. The proper opportunity was not afforded to the appellant to contest the charge. The learned counsel has relied upon the case of Ramappa Kurbar and another v. Emperor 1942 P Cr. L J 167 wherein it has been observed that:‑--

"Under section 476, Cr.P.C., the Court must be satisfied that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195 which includes offences under section 193, I.P.C.

Consequently where a person has resiled in the Sessions trial from his statement under section 164, Cr.P.C. It is absolutely essential that the Court should make up its mind whether it was the statement before the Magistrate under section 164 or the statement subsequently made in Court which was false. If the statement in Court was false, then in the interests of justice there should be a prosecution; but supposing it was the statement under section 164 which was false a prosecution would not be expedient in the interest of justice. No doubt, a man making a statement on oath before a Magistrate under section 164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently he does into the witness‑box. To prosecute a man who has resiled from a false statement made under section 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under section 164 than that he should lie induced to believe that it is to his interest, however, false the statement may have been, to adhere to it. The danger of such a course leading to the conviction of innocent person in too great to be risked. If the non‑prosecution would result in abandoning the practice of taking statements under section 164, it will not be a bad thing."

All the proceedings have been conducted in one day without giving proper opportunity to the appellant. This amounts to abuse the process of the Court.

The learned A.A.‑G. has also not supported the judgment.

In view of the aforesaid infirmity I accept this appeal and set aside the conviction recorded against the appellant and the case is remanded to the learned trial Court. It is open for him to proceed or not to proceed against the appellant after considering expediency of the proceedings.

S. G. D. Appeal allowed.

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