# Rahul Kushwaha v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Application U/S 482 No. 44706 of 2019
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-kushwaha-v-state-of-u-p-anr-45196
- **Pages:** 5

## Headnote

A. Criminal law - Code Of Criminal
Procedure, 1973- Section 340/ 344- In
order to enable the court to form an infallible
opinion that the witness who has deposed
before the court are speaking false and has
given false statement / evidence in their
testimony and in order to decide proposed
action against the witnesses, it is incumbent on
the court to wait for completion of entire
evidence and final arguments in the case
because the opinion to be formed must be the
outcome of appreciation of entire evidence
recorded by it. Any haste shown by the court in
the course of trial and any hurried opinion
formed in the midst of the trial will result in
premature consideration of the matter disabling
the court from clearly and precisely assessing
the truth or reliability of the statement of the
witness in its proper perspective.

Proceedings u/s 344 Cr.Pc can be initiated only
at the time of delivery of the judgement and
the said proceedings cannot be drawn during
the pendency of the trial.

B. Criminal law - Code Of Criminal
Procedure, 1973 - Section 482- Section
482 (3)- Supervisory Jurisdiction of the High
Court -The learned Trial judge committed an
illegality in registering a miscellaneous case in
the exercise of powers under section 340 of the
Cr.Pc during the pendency of the trial and
therefore
the
prayer
for
expediting
the
proceedings of the case u/s 340 Cr.Pc is
misconceived hence entire proceedings of the
Misc. Case u/s 340 Cr.Pc quashed.

Criminal Application rejected.
( Para 7, 11, 12)

## Text

1578 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghanshyam Dass & Ors. vs. Dominion
of India & Ors; reported in (1984) 3 SCC
46. The judgment of the Rajasthan High
Court relied upon by the learned counsel
for the applicant in the case of Raghunath
Prasad (Supra) is clearly distinguishable in
the facts of the present case.

14. In view of the aforesaid, I find no
good reason to interfere with the order
impugned. The present application devoid
of merits and is accordingly rejected.
----------
(2020)02ILR A1578

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Application U/S 482 No. 44706 of 2019

Rahul Kushwaha ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Singh, Sri Yogendra Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal law - Code Of Criminal
Procedure, 1973- Section 340/ 344- In
order to enable the court to form an infallible
opinion that the witness who has deposed
before the court are speaking false and has
given false statement / evidence in their
testimony and in order to decide proposed
action against the witnesses, it is incumbent on
the court to wait for completion of entire
evidence and final arguments in the case
because the opinion to be formed must be the
outcome of appreciation of entire evidence
recorded by it. Any haste shown by the court in
the course of trial and any hurried opinion
formed in the midst of the trial will result in
premature consideration of the matter disabling
the court from clearly and precisely assessing
the truth or reliability of the statement of the
witness in its proper perspective.

Proceedings u/s 344 Cr.Pc can be initiated only
at the time of delivery of the judgement and
the said proceedings cannot be drawn during
the pendency of the trial.

B. Criminal law - Code Of Criminal
Procedure, 1973 - Section 482- Section
482 (3)- Supervisory Jurisdiction of the High
Court -The learned Trial judge committed an
illegality in registering a miscellaneous case in
the exercise of powers under section 340 of the
Cr.Pc during the pendency of the trial and
therefore
the
prayer
for
expediting
the
proceedings of the case u/s 340 Cr.Pc is
misconceived hence entire proceedings of the
Misc. Case u/s 340 Cr.Pc quashed.

Criminal Application rejected.
( Para 7, 11, 12)

(Delivered by Hon'ble Rajul Bhargava, J.)

1. Heard Sri Yogendra Singh holding
brief of Sri Ajay Singh, learned counsel for
the applicant and Sri Pankaj Saxena,
learned A.G.A. for the State.

2. The present application u/s 482
Cr.P.C. has been filed by the applicant for
quashing the entire proceeding of Criminal
Case no. 73 of 2017 (State vs. Rahul
Kushwaha) u/s 354-A, 376, 452, 506 IPC
and u/s 3,4,7,8 of POCSO Act, 2012, Case
Crime no. 315 of 2017, P.S. Kotwali
Jalaun, District Jalaun pending in the court
of Additional District & Sessions Court-II,
Jalaun at Orai.

3. Learned counsel for the applicant
has argued that the opposite party no. 2
has lodged totally false and fictitious case
of commission of rape against the
applicant with his daughter and infact no
2 All. Rahul Kushwaha Vs. State of U.P. & Anr.
1579
such incident has taken place. The reality
is that the first informant, father of the
victim is a greedy person and in order to
extort money he has lodged false first
information report. Learned counsel has
also touched upon merit of the case
especially the statement of the victim
recorded u/s 161 and 164 Cr.P.C. and other
contradictions and inconsistencies and
weakness
of
the
prosecution
case,
however, he submitted that till date six
witnesses of fact and some formal
witnesses have been examined and it is
stated that during the pendency of trial of
the applicant, his brother Mohit filed an
application u/s 340 Cr.P.C. before the trial
court on 25.4.2019 drawing attention of
the trial court to several weakness of the
prosecution case in order to demonstrate
that the prosecutrix first informant and
I.O., S.I. Brijesh Kumar who was then
posted at P.S. Jalaun be prosecuted u/s
170, 182, 193, 209, 211 IPC in the
aforesaid session trial. Copy of the
application moved u/s 195/340 Cr.P.C. has
been annexed as Annexure-6 to the
affidavit.

4. Learned counsel has further
argued that learned Additional Session
Judge
considering
the
contradictions,
discrepancy and ocular testimony of the
victim with regard to medical evidence
and several other weakness has passed an
order dated 25.3.2019 that miscellaneous
case may be registered against the opposite
party no. 2, his daughter victim and
aforesaid police inspector. It is recorded
that in order to pass further order u/s 340
Cr.P.C. certain more evidence is necessary
which the applicant Mohit i.e. brother of
the applicant shall be filing. Learned
counsel submitted that the trial Judge be
directed to expedite the proceeding u/s 340
Cr.P.C. within stipulated time period and
as the order passed u/s 340 Cr.P.C. is quite
detailed and reasoned order by which the
trial court has disbelieved the deposition of
first informant, victim especially laying
stress on the inconsistencies in the medical
evidence and thus as the court has drawn
proceeding u/s 340 Cr.P.C. in which dates
are being fixed the proceedings against the
applicant may be quashed.

5. Learned A.G.A. Strongly opposed
and submitted that it is admitted fact that
the session trial against the applicant is
still pending in which evidence is to be
recorded and final order in the case is yet
to be pronounced and therefore, order
dated 25.3.2019 passed by trial Judge for
registration of misc. case in the exercise of
its power u/s 340 Cr.P.C. is wholly illegal
and is in violation of procedure laid down
therein. He has contended that Section 340
Cr.P.C. did not permit for initiation of
proceeding
under
the
said
section
otherwise than at the time of delivery of
judgment or final order disposing off any
judicial proceeding pending before it,
therefore, said order has been assailed by
learned AGA as being too premature
enough to form a valid and successful
foundation for prosecution of the victim
and police officer u/s 340 of the Code. He
has argued that the trial Judge has
exceeded in his jurisdiction in scanning the
deposition of the witnesses recorded
during trial and disbelieved them during
the pendency of trial which is absolutely
illegal and perverse. For ready reference
Section 340 is as under:-

340.
Procedure
in
cases
mentioned in section 195.

(1) When, upon an application
made to it in this behalf or otherwise, any
Court is of opinion that it is expedient in
1580 INDIAN LAW REPORTS ALLAHABAD SERIES
the interests of justice that an inquiry
should be made into any offence referred
to in clause (b) of sub- section (1) of
section 195, which appears to have been
committed in or in relation to a proceeding
in that Court or, as the case may be, in
respect of a document produced or given
in evidence in a proceeding in that Court,
such Court may, after such preliminary
inquiry, if any, as it thinks necessary,-

(a) record a finding to that
effect;

(b) make a complaint thereof in
writing;

(c) send it to a Magistrate of the
first class having jurisdiction;

(d) take sufficient security for the
appearance of the accused before such
Magistrate, or if the alleged offence is
non- bailable and the Court thinks it
necessary so to do, send the accused in
custody to such Magistrate; and

(e) bind over any person to appear
and give evidence before such Magistrate.

(2) The power conferred on a Court
by sub- section (1) in respect of an offence
may, in any case where that Court has neither
made a complaint under sub- section (1) in
respect of that offence nor rejected an
application for the making of such complaint,
be exercised by the Court to which such former
Court is subordinate within the meaning of
sub- section (4) of section 195.

(3) A complaint made under this
section shall be signed,-

(a) where the Court making the
complaint is a High Court, by such officer of
the Court as the Court may appoint;

(b) in any other case, by the
presiding officer of the Court.

(4) In this section," Court" has the
same meaning as in section 195.

6. In order that provisions of Section 340
Cr.P.C. may apply, the court is under a
statutory duty to form an opinion that the
witness appearing in the proceeding before it
has knowingly or wilfully given or fabricated
false evidence for which they can be
prosecuted for offence u/s 170, 182, 193, 209,
211 IPC.

7. I am of the considered opinion that in
order to enable the court to form an infallible
opinion that the witness who has deposed
before the court are speaking false and has
given false statement / evidence in their
testimony and in order to decide proposed
action against the witnesses, it is incumbent on
the court to wait for completion of entire
evidence and final arguments in the case
because the opinion to be formed must be the
outcome of appreciation of entire evidence
recorded by it. It cannot be permitted as the
same would amount to pre-judging the
testimony of witness before the trial is over.
Any haste shown by the court in the course of
trial and any hurried opinion formed in this
respect will result in premature consideration
of the matter disabling the court from clearly
and precisely assessing the truth or reliability
of the statement of the witness in its proper
perspective.

8. At this juncture in order to
examine the validity of proceedings
pending u/s 340 Cr.P.C., reference of
Section 344 Cr.P.C. be made, which reads
as under:-

344. Summary procedure for
trial for giving false evidence.

(1) 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
2 All. Rahul Kushwaha Vs. State of U.P. & Anr.
1581
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 five hundred
rupees, or with both.

(2) In every such case the Court
shall follow, as nearly as may be
practicable, the procedure prescribed for
summary trials.

(3) Nothing in this section shall
affect the power of the Court to make a
complaint under section 340 for the
offence, where it does not choose to
proceed under this section.

(4) Where, after any action is
initiated under sub- section (1), it is made
to appear to the Court of Session or
Magistrate of the first class that an appeal
or an application for revision has been
preferred or filed against the judgment or
order in which the opinion referred to in
that sub- section has been expressed, it or
he shall stay further proceedings of the
trial until the disposal of the appeal or the
application for revision, as the case may
be, and thereupon the further proceedings
of the trial shall abide by the results of the
appeal or application for revision.

9. From the plain and simple reading
of Section 344 Cr.P.C. the Court is of the
opinion that it is in the interest of justice
an enquiry should be made in the offences
referred to Clause 2(1) of 195 which
appears to have been committed or in
relation to proceeding in the court can only
be examined while passing the final
judgment or order as in the case of Section
344 Cr.P.C. as is also required u/s 344
Cr.P.C. which contemplates summary
procedure for trial for giving false
evidence.

10. The logical reason why the
legislature very consciously provided at
the opening part of Section 344 Cr.P.C. at
the time of delivery of judgment or final
order disposing of any judicial proceeding,
a court of Session or Magistrate of First
Class expressed 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 the 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.

11. Thus, from the Section 340 and
344 Cr.P.C. there is clear indication in the
aforesaid words that the court should not
hurry to form its opinion in the midst of
trial of the case that a witness who has
deposed in the trial, has knowingly or
wilfully given false evidence intending it
to be used as evidence in the proceeding.

12. In the light of the aforesaid, this
Court in the exercise of its inherent power
u/s 482 Cr.P.C. supervisory jurisdiction u/s
482(3) Cr.P.C. deem it fit to quash the
entire proceeding of Criminal Case no. 36
of 2019 (Mudit vs. Veer Singh) pending in
the court of First Additional Session
Judge, Jalaun at Orai.
1582 INDIAN LAW REPORTS ALLAHABAD SERIES

13. I may record that the prayer for
quashing of the proceedings against the
applicant made in the present application
is bereft of merit and is therefore liable to
be dismissed.

14. The present application is
dismissed.

15. It is made clear that any finding
and observations made by Additional
Session Judge in the order dated 25.3.2019
stands effaced and the Presiding Officer
before
whom
proceedings
are
now
pending
shall
totally
ignore
any
observations made in the order dated
25.3.2019.

16.

Office
is
directed
to
communicate the order to the concerned
court forthwith.
----------
(2020)02ILR A1582

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 45291 of 2019

Kailash Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dharmendra Singhal, Sri Sunil Singh,
Sri Shivendra Raj Singhal

Counsel for the Opposite Parties:
A.G.A.

A. Criminal law - Code of Criminal Procedure,
1973- Section 319 - Privilege of facing the trial
afresh and witnesses be re-heard is given to the
newly arrayed accused and not to the accused
persons who have already faced the trial and their
trial is at the fag end.

The trial of the accused persons who have already
faced the trial and their trial is at the fag end, cannot
be permitted to commence afresh on the ground
that they should be tried together with the newly
impleaded accused.

B. Criminal law - Code of Criminal Procedure,
1973- Section 319- Disassociation of trial of newly
impleaded accused from the rest of the accused
persons, is perfectly just and valid and in
consonance with the scheme and spirit of Section
319 Cr.P.C. - Separating the file is not equivalent to
separating the session trial. It is like two branches
coming out of a same stem.

Dissassociation of trial of the newly impleaded
accused is not equivalent to separation of the
Sessions Trial and will not result in any prejudice,
therefore the application filed on behalf of the
accused, whose trial is about to end, that he should
be tried together afresh with the newly impleaded
accused, is misconceived and against the provisions
of Section 319 Cr.P.C.

Interpretation of Statutes-Harmonious ConstructionWords "such person"- Indicative of a person who is
non-accused and has been summoned to face the
prosecution in the midst of the trial in exercise of
power u/s 319 Cr.P.C. Words "could be tried
together with the accused" are directory.

The mandate of law of fresh trial is mandatory
whereas the mandate that a newly added
accused could be tried together with the
accused whose trial is at the fag end is
directory. The words "could be tried together
with the accused" in Section 319(1) Cr.P.C.
cannot be said to be capable of only one
construction. If it was so, the approach to be
adopted would be different since the intent of
parliament is to be respected despite the
consequences of interpretation. There is,
however,
a
scope
of
two
possible
constructions. That being the position, a
reasonable and a common sense approach
deserves to be adopted and preferred rather
than a construction that would lead to absurd
results. ( Para 9, 17,19)