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.6.2019
p.b.

. No. 33

CRR 57 of 2018

In re: Swami Prema Swarupananda.

Mr. Milan Mukherjee,
Mr. B. Basu Mullick,
Mr. Rahul Ganguly.

…..for the petitioner.

Mr. S.G. Mukhopadhyay,
Mr. Ranabir Roy Chowdhury.

……for the State.

In this revisional application, the order dated 27th November, 2017 passed

by the learned Judge, Special (PSCSO), 2nd Court, Bankura in connection with

Special Case No.35 of 2016 corresponding to Sessions Trial No.05(1)17 arising

out of Bankura P.S. Case No.316/2016 dated 20th October, 2016 under Section

376 of the Indian Penal Code read with Sections 4/Section14 of the Protection of

Children from Sexual Offences Act and Sections 66E/Section67/Section67B of the Information

Technology Act is under challenge whereby and where under the learned Judge

directed issuance of summons upon the petitioner to appear before the Court on

11th January, 2018 calling upon him to show cause as to why the proceeding

under Section 344 of the Code of Criminal Procedure shall not be initiated

against him for giving false evidence before the learned trial court by suppressing

the truth of the case.

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Brief facts leading to the instant case is that a complaint was lodged with

the allegation that the minor daughter of the complainant used to visit

Ramkrishna Mission Library for the last several months for studying and one

Maharaj namely, Snehashish Choudhury by alluring her committed sexual

intercourse with her and uploaded the objectionable scene in the mobile as video

and started blackmailing her by showing the said video to victim girl and had

committed sexual intercourse on several occasions and also threatened her not to

disclose the said incident. Since the physical condition of the daughter of the

complainant started deteriorating she ultimately narrated the incident to her

mother alleging that the accused had made the said obscene pictures on the

mobile viral.

On the basis of the said complaint, Bankura P.S. Case No.316 of 2016

dated 20th October, 2016 was started and on completion of the investigation, I.O.

submitted Charge Sheet being No.279 of 2016 dated 19th November, 2016 under

Section 376 of the Indian Penal Code read with Sections 4/Section14 of the Protection of

Children from Sexual Offences Act against the accused Snehashish Maharaj @

Choudhury. After trial, the Special Judge, POCSO held the accused Snehashish

Choudhuri guilty of offence punishable under Section 376(2) of the Indian Penal

Code and sentenced him to suffer R.I. for life and also sentenced him to suffer

R.I. for 10 years for the charge under Section 4 of the POCSO Act.

The question raised before this court is as to whether a witness who was

declared hostile by the prosecution during trial can be considered for proceeding

under Sectionsection 344 of the Code of Criminal Procedure?

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Certain facts are germane for appreciation of the instant case. In the

instant case P.W.2 Snigdha Chatterjee, P.W.3 Ajay Man father of the victim girl,

P.W.4 Seuli Man mother of the victim girl, P.W.5 the victim girl herself, P.W.6 i.e.

the present petitioner, P.W.8 Payel Goswami and P.W.11, Swami

Muktikamananda have all been declared hostile by the prosecution. It is quite

surprising that the victim girl herself did not adduce evidence in support of the

prosecution case.

P.W.11, Swami Muktikamananda stated that the accused person had made

an extra judicial confession in his office pertaining to the act which he is accused

of. In the said office, he along with other sanyasis of the Ashram namely, P.W.6

the petitioner herein and one Bishnupada Maharaj were also present. The

petitioner PW6 had only deposed before the Court that he had no knowledge

about the said incident relating to Snehashish Maharaj and about alleged

confession by the latter before the other sanyasis of the Ashram. Further PW6

deposed that he was never interrogated by the Investigating Officer about the

said incident and that he gave evidence for the first time before this Court and as

such, he was declared hostile by the prosecution.

The Investigating Officer namely, Rajarshi Dutta P.W 16 stated in his

evidence that he had interrogated the petitioner on 22nd October, 2016 and

affirmed his statement relating to the confession made by the accused

Snehashish Maharaj before P.W.11 and others.

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The petitioner is a dedicated saint, believing in the faith and culture of

Ram Krishna Order and head of Dispensary at Ram Krishna Mission Sevasram,

Bankura.

The learned trial court while taking judicial notice of the said fact came to

a conclusion that the statement made by the present petitioner in Court is

blatantly false and wilfully made to shield the accused Snehashish Maharaj from

prosecution and such action cannot go unpunished. Hence the learned Court

was pleased to initiate proceedings under Section 344 of the Code of Criminal

Procedure against the present petitioner and two others.

It is argued that there is no material evidence on record to establish any

prima facie case under Section 344 of the Code of Criminal Procedure. So the

order of the learned Sessions Judge is unsustainable and the proceeding initiated

against the present petitioner by the learned trial Judge on the premise that he

has retracted his earlier statement given to the Investigating Officer during

investigation suppressing certain facts in course of his deposition before the trial

is liable to be quashed. The prosecution also declared other witnesses as hostile

especially, the victim girl herself but the learned court chose to select the present

petitioner and the victim girl’s parents as offenders in respect of giving false

evidence which is absolutely erroneous and highly prejudicial to the petitioner

and as such, the order warranting proceeding under Section 344 of the Code of

Criminal Procedure should be quashed.

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The concept of Section 344 of the Code of Criminal Procedure is not

attracted in the present case, inasmuch as the basic ingredient of false evidence

has not been satisfied. It would be apt to reproduce the provisions of Section

344(1) of the Code of Criminal Procedure which provides for some procedure for

trial for giving false evidence. The provisions reads thus:-

“If, at the time of delivery of any judgment or final order disposing of any

judicial proceeding, a Court of Session or Magistrate of the first class expresses an

opinion to the effect that any witness appearing in such proceeding had knowingly

or wilfully given false evidence or had fabricated false evidence with the intention

that such evidence should be used in such proceeding, it or he may, if satisfied

that it is necessary and expedient in the interest of justice that the witness should

be tried summarily for giving or fabricating, as the case may be, false evidence,

take cognizance of the offence and may, after giving the offender a reasonable

opportunity of showing cause why he should not be punished for such offence, try

such offender summarily and sentence him to imprisonment for a term which may

extend to three months, or to fine which may extend to fine hundred rupees, or

with both.”

It is axiomatic from the provision of law as quoted above that it is

imperative on the part of the court to form an opinion to come to a prima facie

conclusion that the witness has made false statement and there should be

materials to justify permission of such opinion.

My attention is invited to the evidence of the victim girl who deposed as

P.W.5. It transpires that she has stated on oath that she made a statement before
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the learned Magistrate under Section 164 Cr.P.C. She further stated on oath that

she was not interrogated by the I.O. and for this she was declared hostile by the

learned P.P. and the learned P.P. was permitted to cross-examine the witness. It

is also revealed from her deposition that whatever she stated before the learned

Magistrate were all tutored by the police. In her cross-examination in

unequivocal term she deposed that she had no sexual relation with Maharaj and

the photographs were shown fictitious and manufactured.

The present petitioner Swami Prema Swarupananda as P.W.6 who was

declared hostile on the prayer of the Special P.P. and he was also cross-examined

by the learned Special P.P. on permission given to him by the learned trial court

when he has categorically stated that he was not examined by the I.O.

After having found the accused guilty of the offence punishable under

Section 376(2) (5) of the SectionIPC and Section 4 of the POCSO Act, 2012 the accused

was heard on the question of sentence and was sentenced to imprisonment for

life and also sentenced to suffer 10 years imprisonment and to pay fine of

Rs.20,000/- in default to suffer R.I. for the offence under Section 4 of the POCSO

Act with direction to serve out the sentences concurrently. After the said

judgment of sentence, the learned trial Judge issued a notice to the petitioner

and other witnesses directing them to appear before the court on 11th January,

2018 to file show cause as to why proceeding under Section 344 Cr.P.C. should

not be initiated against them for giving false evidence before the court by

suppressing the truth of the case. This portion of the order dated 27th November,

2017 is under challenge in this revisional application.
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It is well understood from the directions so made that the learned trial

court has not expressed any opinion to the effect that the said hostile witnesses

who deposed before the court knowingly or wilfully gave false evidence or had

fabricated false evidence with intention that such evidence would be used in such

proceedings while taking cognizance of offence.

Mr. Milan Mukherjee, learned senior counsel appearing on behalf of the

petitioner has relied on a decision in the case of SectionMahila Vinod Kumari vs. State of

Madhya Pradesh reported in (2008) 8 SCC 34 wherein it has been held that for

exercising the powers under Sectionsection 344 of the Code of Criminal Procedure, the

court at the time of delivering the judgment must at the first instance express an

opinion to the effect that the witness before it has either intentionally given false

evidence or fabricated such evidence. The second condition is that the court

must come to the conclusion that in the interest of justice the witness concerned

should be punished summarily by it for the offence which appears to have been

committed by the witness and the third condition is that before commencing the

summary trial for punishment the witness must must be given reasonable

opportunity of showing cause why he should not be so punished. All the said

conditions are held to be mandatory. Reliance has also been placed in the case of

Narayanswami Vs. State of Maharashtra reported in 1971 SCC (Cri) 507 in the

above cited case.

It is well settled law that mere duration/ resisting from earlier statement

recorded during investigation without anything more could not lead to a prima
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facie conclusion as to the commission of perjury by the witness. See: Maharani

Santra reported in 2013 CHN (CAL) 681

Indubitably, the petitioner was declared hostile by the prosecution. The inference of

the hostility of a witness could be drawn only from the answers given by him and some to

extent from the demeanor. A witness for a party speaking the truth against the party

calling him is not necessarily hostile. It is not correct to say that when a witness is cross-

examined by the party calling him, his evidence cannot be believed in part and

disbelieved in part but must be excluded from the consideration altogether. The Court is

required to form its own opinion taking into account all the factors relevant to the

question that the witness really bears a hostile animus against the party calling him.

Therefore, the prosecution does not rely on the evidence of a hostile witness and the whole

of the evidence has to be rejected. Equally it is the rule settled that merely because a

witness has been declared hostile, his evidence cannot be rejected on that ground alone

but when once a prosecution witness is declared hostile, the prosecution clearly exhibits

its intention not to rely on the evidence of such witness, and, therefore, the version of

such hostile cannot be treated as the version of the prosecution.

I am of the opinion that it is quite possible that when the statement of a witness

was recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police

during investigation, the Investigating Officer forced them to make such statements and,

therefore, they resiled therefrom while deposing in the Court, although it is a settled law

that if a witness becomes hostile to sub-vert the judicial process, the Court shall not stand

as a mute spectator and every efforts should be made to bring home the truth. Criminal

judicial system cannot be overturned by those gullible witnesses who act upon process,
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endowment or intimidation. Further I fully understand that provision of Section 193 of the

Indian Penal Code imposes punishment for giving false evidence but is seldom invoked but

testimony of a hostile witness is subject to scrutiny that may be relied or nullified and

would depend on circumstances of each case.

It is the case of the prosecution in the given facts and circumstances, that the accused

had made extra judicial confession in presence of some sanyasys of Ramkrishna Mission

when the petitioner was also present. As regards extrajudicial confession, it is a weak

piece of evidence, particularly, when such confessional statement is made in presence of

many sanyasys.

In the context above, I find no positive material to hold the petitioner for giving

false evidence or fabricating false evidence knowingly or wilfully with the intention that the

evidence should be used to favour the accused moreso when the victim herself was

declared hostile and not prosecuted on the allegation of perjury as the learned Court did

not even chose her to prosecute her under Section 344 along with the present petitioner,

ergo, it is not appropriate to proceed against the petitioner in mechanical manner under

Sectionsection 344 of the Code. Now it is well settled in a catena of decisions by the Hon’ble Apex

Court that a Court has a duty to use its judicial discretion in differentiating between

evidences given by the witness which are blatantly false and conjured afresh with a view to

mould the prosecution or vindicate the accused and evidence given by a hostile witness.

Every incorrect or false statement does not make it incumbent upon the Court to order

prosecution and should be done only in grave circumstances where it affects the larger

interest of administration of justice. The Court should only initiate prosecution in cases
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where the falsity of statement is glaring and not merely because certain statements were

denied by the witness on oath as it is in the present case.

I am of the considered view that merely because the petitioner was

declared hostile by the prosecution and allowed to be cross examined, it does not make

the witness an unreliable witness so as to exclude his evidence from consideration

because the Court had permitted the prosecution to cross examine him by using the

statement of the police and the questions asked on the reference to the earlier statement

made by the witness which are inconsistent with the testimony of the witness in the Court

and, therefore, taking into consideration the above referred proposition, I hold that the

evidence of a hostile witness cannot be said either to have fabricated the evidence against

some or suppressed the truth.

In the context above, the learned Court has committed grave error in law

thereby rendering the impugned order bad in law and is liable to be set aside. Accordingly,

the portion of the order dated November 27, 2017 passed by the Learned Judge,

Special(POCSO), 2nd Court, Bankura in connection with Special Case No. 35 of 2016

which correspondents to Sessions Trial No. 05(1) 17 and arose out of Bankura Police

Station Case No. 316 of 2016 dated October 20, 2016 under Section 376 IPC and Sections

4/Section14 of the Protection of Children from Sexual Offences Act for prosecuting the petitioner

under Section 344 of the Code of Criminal Procedure is hereby set aside.

Accordingly, the revisional application being CRR 57 of 2018 is allowed and

disposed of.

Urgent xerox certified copy of this order, if applied for, be given to the petitioner

after completion of all legal formalities.

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(Shivakant Prasad, J.)