P.N. Harkauli, J.@mdashBoth these applications arise out of the same matter and are being disposed of by this common judgment.
2. The applicants and the opposite party No. 1 are admittedly brothers. It appears that Badri Prasad Sharma, applicant in Misc. Case No. 2491 of 1980, filed a complaint under: Sections 120-B and 448 and 454 Indian Penal Code in the Court of the Chief Judicial Magistrate Saharanpur against Dr. Shanti Prasad Sharma, Opposite Party No. 1 in these cases, his son Deepak Sharma, his father Dr. Amba Prasad Sharma and his compounder Bal Kishore alleging that in pursuance of a conspiracy hatched by these four persons they broke open the lock of the Kothri belonging to the complainant on 11-9-1975 at about 12 noon. At the trial the applicant himself gave evidence in support of his complaint and examined Krishna Kumar Sharma, the applicant in the connected case No. 2490, and some other persons as eye witnesses. In their testimony the applicants in these two revisions that is, Badri Prasad Sharma and Krishna Kumar Sharma, supported the case set up by Badri Prasad Sharma in complaint. Their evidence was, however, not believed by the learned Chief Judicial Magistrate who dismissed the complaint.
3. Thereafter Shanti Prasad Sharma moved an application u/s 340 Code of Criminal Procedure before the learned Chief Judicial Magistrate that Badri Prasad Sharma and Krishna Kumar Sharma may be prosecuted under Sections 193 and 211 Indian Penal Code for giving false evidence. The learned Chief Judicial Magistrate rejected this application. Feeling aggrieved by the order of the learned Chief Judicial Magistrate Dr. Shanti Prasad Sharma opposite party No. 1 preferred an appeal before the Court of Session. The appeal was heard by Sri D.L. Soni, IV Addl. Distt. and Sessions Judge Saharanpur who allowed the appeal and ordered filing of a complaint against Badri Prasad Sharma and Krishna Kumar Sharma under Sections 193 and 211 Indian Penal Code .
4. Thereupon Badri Prasad Sharma the complainant, and Krishna Kumar Sharma one of the alleged eye witnesses filed applications u/s 482 Code of Criminal Procedure for setting aside the order passed by the learned Sessions Judge.
5. During the pendency of these applications the applicants applied that these applications u/s 482 Code of Criminal Procedure may be converted into revision applications. This prayer was opposed by opposite party No. 1 in both the cases. Affidavits and counter affidavits were exchanged on this point and the matter was listed today for deciding this question as also for hearing.
6. No one has turned up on behalf of the parties today.
7.I have gone through the record with the assistance of Sri K.N. Dwivedi who appears on behalf of opposite party No. 2, that is, the State of U. P. I am clearly of the opinion that there is no reason at all for not allowing these applications. If the order of the learned Sessions Judge is bad and a revision lay against his order and the applicants were wrongly advised to challenge that order by means of an application u/s 482 Code of Criminal Procedure there is absolutely no reason why such a mistake should not be allowed to be corrected. It appears to me that when the applicants challenged the order of the learned Sessions Judge in the right forum within the time allowed by law for filing a revision a mere mistake in the form of the application cannot be allowed to stand in the way of justice. Accordingly the prayer for converting these applications into applications for revision is allowed.
8. Coming now to the merits of the matter it is obvious that the mere fact that the trial court did not accept the complainant''s version or did not rely upon the evidence of the persons produced as witnesses in the case, cannot justify prosecution under Sections 211 and 193 Indian Penal Code . Such prosecutions can be ordered only when the record shows unmistakably that a false complaint was filed with knowledge that there was no just or lawful ground for such proceeding or that a witness intentionally gave false evidence. The order of the learned Sessions Judge, however, does not show that, that is the case here. The first reason given by the learned Sessions Judge in support of this view that the complainant Badri Prasad Sharma knowingly lodged a false complaint, was that he lodged the first information report with great delay--eight days after the occurrence and that he filed the complaint seven months after lodging the report. The Second reason given by the learned Sessions Judge was that in the report only two persons were named as accused while in the complaint four persons were named as accused which indicated that the complainant had deliberately and falsely roped in at least two of the accused persons. This may be ground for doubting the truth of the complaint ; and in all likelihood these factors were responsible for the dismissal of the complaint by the trial Court. But on the basis of these two factors alone it is impossible to hold that the complainant had lodged a false complaint or that he had deliberately, falsely roped in two persons.
9. As pointed out by the learned Chief Judicial Magistrate in his order dismissing the application of the opposite parties u/s 340 Code of Criminal Procedure Badri Prasad Sharma did not himself witness the occurrence, he lodged the report only on the basis of the information received by him through his sweepress. While the complaint was filed by Badri Prasad Sharma not only on the basis of the information given to him by the sweepress but also on the basis of the information given by Krishna Kumar Sharma and Kanti Prasad. These two witnesses met Badri Prasad Sharma after he had lodged the F. I. R. It is, therefore, quite possible that Krishna Kumar Sharma and Kanti Prasad told some additional facts to Badri Prasad Sharma over and above that the sweepress had told him. In other words, it is possible that while the sweepress informed Badri Prasad about the participation of only two persons the witnesses infromed him about the participation of four persons. If Badri Prasad Sharma believed the information given to him by Krishna Kumar Sharma and Kanti Prasad and on the basis of their information he lodged a complaint against four persons while in the report only two accused were name it cannot necessarily mean that Badri Prasad Sharma had deliberately filed a false complaint knowing that there was no just or lawful ground for the same. I am, therefore, of the opinion that the learned Chief Judicial Magistrate took the correct view and the learned Additional Sessions Judge was in error in allowing the appeal and directing the prosecution of Badri Prasad Sharma.
10. As regards Krishna Kumar Sharma applicant in Case No. 2490, the learned Additional Sessions Judge has held that the he had committed perjury on the grounds that (1) he was not named as a witness in the first information report and he was mentioned as a witness for the first time in the complaint which was filed seven months after the lodging of the first information report, and (2) that he stated that all the four accused persons broke open the lock while in the F. I. R. it was mentioned that only two of the accused had broken open the lock. It is obvious that these two reasons alone are wholly insufficient for coming to the conclusion that these witnesses had knowingly given false evidence. This may be a ground for doubting the evidence of Krishna Kumar Sharma and the otherwitnesses who appear to have come into the picture at a late stage, and for recording an acquittal but it cannot possibly be conclusive to show that these witnesses had knowingly given false evidence. It would hardly be safe to brand Krishna Kumar Sharma and Kanti Prasad as liars simply on the ground that their version was at variance with the information given by the sweepress to Badri Prasad Sharma. It is by no means impossible that the sweepress may have given either incomplete or incorrect information to the informant. This is all the more so when we find that the trial court itself did not consider it a case of a deliberate perjury and did not itself order the prosecution of Kanti Prasad for perjury. For these reasons I am of the opinion that the leanrned Additional Sessions Judge has not given any good reason for disagreeing with the view taken by the learned Chief Judicial Magistrate and that this is not a fit case for directing prosecution of the applicants Krishna Kumar Sharma and Badri Prasad Sharma for perjury.
11. Accordingly, these applications in revision are allowed and the orders passed by the learned Addl. Sessions Judge directing the prosecution of the applicants in these revisions is set aside.
Appliations allowed.
