PREM SAGAR MANOCHA v. STATE (NCT OF DELHI)

8. The witness was declared hostile, and in cross examination, the following question and its answer were tendered.

9. Shri K. V. Viswanathan, learned Senior Counsel appearing for the appellant, contended that being an expert and a professional, the appellant only tendered his opinion in response to the specific question by court and that does not amount to even a borderline case of perjury.

10. Perjury falls under Chapter XI of the IPC “Of False Evidence and Offences Against Public Justice”. As per Section 193 of IPC, “whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine……”. Page 7

11. Section 340 of CrPC falls under Chapter XXVI of the Code- “Provisions as to Offences Affecting the Administration of Justice”. Either on an application or otherwise, if any court forms an opinion that it is expedient in the interests of justice that an inquiry should be made in respect of an offence referred to under Section 195 of CrPC which appears to have been committed in relation to a proceeding in that court, the court after such preliminary inquiry, enter a finding and make a complaint before the Magistrate of competent jurisdiction. It is this jurisdiction which has been invoked suo motu by the High Court in the Criminal Appeal, leading to the impugned order.

12. Section 340 of CrPC, prior to amendment in 1973, was Section 479-A in the 1898 Code and it was mandatory under the pre-amended provision to record a finding after the preliminary inquiry regarding the commission of offence; whereas in the 1973 Code, the expression ‘shall’ has been substituted by ‘may’ meaning thereby that under 1973 Code, it is not mandatory that the court should record a finding. What is now required is only recording the finding of the preliminary inquiry which is meant only to form an opinion of the court, and that too, opinion on an Page 8 offence ‘which appears to have been committed’, as to whether the same should be duly inquired into. We are unable to appreciate the submission made by the learned Senior Counsel that the impugned order is liable to be quashed on the only ground that there is no finding recorded by the court on the commission of the offence. Reliance placed on Har Gobind v. State of Haryana[1] is of no assistance to the appellant since it was a case falling on the interpretation of the pre-amended provision of the CrPC. A three-Judge Bench of this Court in Pritish v. State of Maharashtra[2] has even gone to the extent of holding that the proceedings under Section 340 of CrPC can be successfully invoked even without a preliminary inquiry since the whole purpose of the inquiry is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. To quote:

13. In the impugned order, the High Court did form an opinion after the inquiry. To quote:

14. Therefore, what is to be seen is whether the High Court is justified in forming the opinion on commission of the offence under Section 193 of IPC. The stand of the appellant in his report (Ex PW-95/2) dated 04.02.2000, and while deposing before the court at the trial, it is to be noted, was consistent. Query No.3 was whether both the empty cartridges were fired from the same firearm or otherwise. Since there was no recovery of the firearm, the same was not sent along with the cartridges for the examination by the expert. Therefore, the opinion tendered was that he was unable to give any definite opinion in answer to Query No.3, “unless the suspected firearm is available for Page 11 examination.” It was at that juncture, there was a court question. According to the court, “for reply to query no. 3, the presence of the firearm was not necessary. The question was whether the two empty cartridges have been fired from one instrument or from different instruments”. To that question, the appellant responded that “after comparison, I am of the opinion that these two cartridge cases C/1 and C/2 appeared to have been fired from two different firearms”. It is not a clear, conclusive, specific and definite opinion. In further examination, the appellant has clearly stated that “I have already stated these two cartridge cases appear to have been fired from two different fire arms. Definite opinion would have been given once the weapon is given to me for examination”.

15. We fail to understand how the stand taken by the appellant, as above, attracts the offence of perjury. As we have already observed above, the appellant has all through been consistent that as an expert, a definite opinion in the case could be given only if the suspected firearm is available for examination. It is nobody’s case that scientifically an expert can give a definite opinion by only examining the cartridges as to Page 12 whether they have been fired from the same firearm. It was the trial court which insisted for an opinion without the presence of the firearm, and in that context only, the appellant gave the non-specific and indefinite opinion. An expert, in such a situation, could not probably have given a different opinion.

16. In fact, this Court, in the decision rendered on the appeal filed by the accused and reported in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)3, has specifically dealt with the issue explaining, and in a way, justifying the stand of the appellant. To quote: “180. Similar is the case with the expert opinion of PW 95 which is again inconclusive. There is no evidence on record to suggest that PW 95 gave an opinion to oblige the prosecution. On the contrary, his response to the court question reveals that he was extremely confused as to the issue which had to be addressed by him in the capacity of an expert. In the concluding part of his testimony he reaffirms the opinion given by him which is that without test firing the empties from the weapon of offence no conclusive opinion can be given.”

17. This Court in State (Delhi) v. Pali Ram[4] held that: “51. ….the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the court or jury to determine”.

18. In Ramesh Chandra Aggrawala v. Regency Hospitals[5], this Court has dealt with the difference between an ‘expert’ and ‘a witness of fact’.

19. Mr. Vishwanathan, learned Senior Counsel has invited our attention and has placed heavy reliance on a judgment of the Supreme Court of Pakistan in Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and Others[6]. While dealing with the issue of perjury by expert witnesses, observed as follows:

22. Hence, merely because an expert has tendered an opinion while also furnishing the basis of the opinion and that too without being conclusive and definite, it cannot be said that he has committed perjury so as to help somebody. And, mere rejection of the expert evidence by itself may not also warrant initiation of proceedings under Section 340 of CrPC.

23. It is significant to note that the appellant’s opinion that the cartridges appeared to have been fired from different firearms was based on the court’s insistence to give the opinion without Page 18 examining the firearm. In other words, it was not even his voluntary, let alone deliberate deposition, before the court. Therefore, it is unjust, if not unfair, to attribute any motive to the appellant that there was a somersault from his original stand in the written opinion. As a matter of fact, even in the written opinion, appellant has clearly stated that a definite opinion in such a situation could be formed only with the examination of the suspected firearm, which we have already extracted in the beginning. Thus and therefore, there is no somersault or shift in the stand taken by the appellant in the oral examination before court.

24. The impugned proceedings initiated against the appellant under Section 340 of CrPC are hence quashed. The appeals are allowed..…….…..…………CJI. (T. S. THAKUR)....……………………J. (KURIAN JOSEPH) New Delhi; January 6, 2016.