Sec.340 and 195 Cr.P.C. - application by Accused who convicted under Sec.376 & 506 I.P.C. - Acquitted under sec.201 I.P.C. - for prosecuting the prosecution agency - Sessions court dismissed the application - their lordship held that different statements at different stages of the case made by the public prosecutor would amount to any offence attracting the provision of Section 340 CrPC and By no stretch of imagination, can we say that the stand of a counsel, howsoever inconsistent it may be at different stages of the proceedings, can amount to offences adverted to under Section 195 CrPC. and like wise mere contradiction in evidence can amount to offences adverted to under sec.195 Cr.P.C. - 2015 Telangana & A.P. msklawreports




The petitioner has been charge sheeted for offences under
Section 376, 506 and 201 IPC and after a full fledged trial he has
been convicted for the offences under Sections 376 and 506 IPC,
but was acquitted of the offence under Section 201 IPC, by the
Sessions Court. Pending Appeal against the Conviction -
The above said accused filed an application 
under sec.340 & 195 of Cr.P.C for prosecution of prosecuting agencies for the contradictions in the deposition run over.
1)      Take cognizance of this matter, conduct inquiries
as required, give specific finding and register a
criminal complaint with the appropriate
investigating agency against the prospective
accused as detailed in this application and deal
with the matter as per law enshrined in Section
340 and 195 of the Cr.P.C. in the interest of
justice.
2)      Call for the relevant General Diary, Case Diary and
other records from CCS as this Honble Court
deems necessary to corroborate the culpability of
the IO as has been discussed in this petition.
3)      Take appropriate steps to immediately suspend the
said accused Government officers in order to
ensure free and fair inquiry, investigation and trial.

whether the different
statements at different stages of the case made by the
public prosecutor would amount to any offence attracting
the provision of Section 340 CrPC

  
 whether the different
statements at different stages of the case made by the
public prosecutor would amount to any offence attracting
the provision of Section 340 CrPC. 


We repeatedly asked the
respondent as to how two different stands taken by a
counsel would be covered by the offences referred to in
provisions of Section 195 CrPC.
 He tried to explain that
there is distinction between submissions made on law and
on facts. Submissions based on facts, which would affect
the life and liberty of innocent persons are not legal
submissions but would amount to causing circumstances
to exist so as to amount to fabricating evidence within the
meaning of Section 192 IPC.
       Supposing a counsel presents a preposterous
argument or blatantly wrong argument which, he later on
corrects himself on realizing the incorrectness of his
submission or in a converse situation, having made a
correct argument realising that the same would defeat the
claim of his client, takes a diametrically opposite stand,
could it be said that the said stand would lead to
fabricating evidence before the court in any manner which
attracts the offences adverted to under Section 195 CrPC.
By no stretch of imagination, can we say that the stand of a
counsel, howsoever inconsistent it may be at different
stages of the proceedings, can amount to offences adverted
to under Section 195 CrPC. 
If the courts begin to issue
notice for prosecution or as to why the inquiry should not
be made in the matter or to launch a prosecution, no
Advocate can function with safety nor can he assist the
court with the necessary fearlessness which is required of
him.
It is not unknown that even in criminal cases even
after committal proceedings are over at the stage of
sessions trial before charges are framed by the court or at
the stage of final arguments, many public prosecutors have
entered NOLLE PROSEQUI in cases where they thought     
that a charge could not be framed or the concerned accused
should be acquitted. However, that does not mean that
such a stand could not have been taken or attracts wrath of
Section 340 CrPC. 

   The petitioner is making a serious attempt in trying to make
out a case by adverting to some contradictions brought out in the
deposition of a Doctor, who examined the victim girl when
produced before her, upon registering the crime on her report.
Similarly, he is trying to point out some contradictions in the
deposition of the investigation officer.  On such a score, he wants
them to be prosecuted.


 During the course of
cross-examination of the witnesses examined on behalf of the
prosecution, the petitioner/appellant may have succeeded to
extract certain contradictions and so long as those contradictions
have no bearing upon the substantial mis-demnor of the petitioner,
the Court is bound to ignore the same from serious consideration.
Only on a substantial issue, should there be fabrication of evidence
or tendering of false evidence knowing it be really so, then the
situation warrants initiation of proceedings, otherwise, the
precious time of the Court would be lost in pursuing the trivia
leaving aside the substantial issues. 

 The role of the Court, which was to deal with the application
under Section 340 is not to record any finding as to whether any
offence was committed or who committed the same.  It is only
intended for it to form an opinion that the witness has either
intentionally given false evidence or produced fabricated evidence.
Further, it is for the Court to firm up its opinion that it is
expedient, in the interests of justice to prosecute the witness.
Therefore, to the extent that the petitioner herein prayed the
learned Sessions Court to record a finding against the prospective
accused persons named by him, it is completely ill founded and


untenable.  

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