Full Judgment Text
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PETITIONER:
OMKAR NAMDEO JADHAO & ORS.
Vs.
RESPONDENT:
SECOND ADDITIONAL SESSIONS JUDGE BULDANA & ANR.
DATE OF JUDGMENT: 04/01/1996
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
G.B. PATTANAIK (J)
CITATION:
1996 AIR 929 1996 SCC (1) 753
JT 1996 (1) 38 1996 SCALE (1)32
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted
In this case we are concerned with the notice issued by
the Second Additional Sessions Judge, Buldana, on December
3, 1990 to the appellants for prosecution under sections 194
and 195, I.P.C for alleged fabrication of the record and
setting up a case said to be false against two ladies,
Jamman and Laxmi said to be aged about 60 and 80 years
respectively. The Additional Sessions Judge had stated that
they are infirm persons; unable to walk and stand without
the support of others. Consequently, it would be difficult
to believe the version of the police that they pelted stones
and kicked the police officers while the latter were
discharging the official duty in apprehending Latur Hasan.
While setting aside the charges framed against them, notice
was issued under section 340, Cr. P.C. for prosecution of
the appellants under sections 194 and 195, I.P.C.
It is seen that the observation made by the Sessions
Judge, as confirmed by the of Bombay High Court, Nagpur
Bench in the impugned judgment dated 10.3.1992 made in
Criminal Application No.20/91 is based on 161 statements
recorded during the investigation. Admittedly, no evidence
has been recorded. The court Should not come to the
conclusion on the basis of 161 statements which are not
evidence. It can be used at the trial only for
contradictions or omissions when the witness was examined.
Nor it could be contradicted by looking at the physical
features of the witnesses even before they are examined. The
Additional Sessions Judge had discharged them concluding
that the police officers had fabricated the record. It would
appear that the learned Sessions Judge had overstepped his
jurisdiction in recording a finding, while looking at the
physical features of the accused, that the police had
fabricated the record. The High Court has also not properly
considered the matter while going into the question
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regarding discharge of the accused for other offences. Under
these circumstances, we hold that in view of the finding
recorded by the Sessions Judge of fabrication of the record
and that the case is false one, issuance of notice under
Section 340, Cr.P.C. is wholly unjustified. The said order
of the Sessions Judge is accordingly quashed.
The appeal is accordingly allowed.