. 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.
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
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?
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
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.
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,
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.
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
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
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.
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
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,
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
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
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
Urgent xerox certified copy of this order, if applied for, be given to the petitioner
after completion of all legal formalities.
(Shivakant Prasad, J.)