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IN THE COURT OF SESSION FOR GR. BOMBAY AT BOMBAY
MISCELLANEOUS APPLICATION NO.479 OF 2012
IN
CASE NO.490­PS­2005
State of Maharashtra
)
...Complainant
)
...Accused
V/s.
Salman Khan
And
Santosh Daundkar
)
10/37 BIT Chawl, KK Marg, Mumbai )
Central, Mumbai – 400 008.
)
Coram : Date : ...Applicant H.H.J. the Additional Sessions Judge Shri D. W. Deshpande,
(C.R. No. 52).
06th May, 2015.
Mr. Gharat, Spl. P.P. for State.
Mr. Shivade, Advocate for accused.
Ms. Abha Singh, Advocate for applicant.
ORDER
1.
This is an application filed by the applicant Santosh Daundkar to initiate preliminary inquiry u/s.340 of the Cr. P.C. 2.
Facts of the case in brief are as under:­
3.
The applicant is a Social Worker and has taken up several cases related to human rights. It is contended that this application is being made under the provisions of Sec.195 of the Cr. P.C. to conduct a preliminary inquiry. It is contended that the offence u/s.304­A, 337, 338 of the IPC and u/s.181, 185 of the Motor Vehicle Act was registered ...2/­
..2.. MA 479/12 in SC 240/13
against Salman Khan. It is alleged that in this case, the police submitted false information before the ld. Metropolitan Magistrate for issuance of summons to those Doctors as witnesses for trial who had got no connection with the case. The trial is delayed by about almost 4 to 5 years and in this case, the accused was benefited.
4.
Further it is contended that the summons were issued to Dr.Avinash Dhale, who is not Doctor on the postmortem report, and also Medical Officer Dr. Narvekar, who is not concerned with the injured witnesses. The Court directed to produce the concern Medical Officer as a witness. In the mean time, the matter was delayed by about 4 years. It is alleged that in the meantime, the accused made huge pecuniary gains by coming out with several record breaking super hit films. It is contended that the police submitted false names of the Doctors who had never examined the injured persons. 5.
In short, according to applicant, the Court was misled into believing that the Doctors who were called had actually done the medical examination though they had not done. It is contended that act of police comes within the definition of the false evidence. Further it is contended that by submitting the wrong names of Doctors, the accused, police persons have committed the offences punishable u/s.191, 192 and 193 of the I.P.C.
6.
Say is submitted by the accused contending that the present application is not maintainable. Further it is contended that the evidence of Patil was recorded in the year 2006. Thereafter PW­2 and ...3/­
..3.. MA 479/12 in SC 240/13
PW­6 were examined in December 2006. At the end of 2006, 6 witnesses were examined. In the year 2007, the prosecution examined PW­7 to PW­10 which included the evidence of Medical Officer Dr. Sanap who had conducted the postmortem. In the year 2008, PW­11, Motor Vehicle Inspector, and PW­12 Dr. Satish Sampat who is Honorary Orthopedic Surgeon in Bhabha Hospital were examined. Dr. Satish Sampat had examined the injured Abdulla Rauf and Muslim Niyakat Shaikh. The prosecution has also examined the witness PW­13, Chemical Analyzer, Mr. Dattatraya Bhalshankar and PW­14 Dr. Shashikant Pawar and PW­15 Vijay Salunkhe, PSI, Bandra Police Station. Hence, it is contended that the police and/or prosecution in connivance with the accused delayed the trial is false and misleading.
7.
Exh.8 is the say filed by the Sr. P.I., Bandra Police Station, stating that in the year 2006, trial was commenced. Till 25.02.2011, 17 witnesses were examined. It is contended that the applicant filed an application alleging that the police furnished false information, therefore, trial was delayed for a period of 4 years and because of that, the accused was benefited as he earned money by appearing in various cinemas which is not true.
8.
It is contended that the summons were issued from the Court in the name of Medical Officer which was summoned on the Medical Officer in the hospital. It is contended that the police never furnished any false information nor there was delay in the trial.
...4/­
..4.. MA 479/12 in SC 240/13
9.
I have heard Ms. Abha Singh, ld. Advocate for the applicant, Mr. Gharat, ld. SPP for State, and Mr. Shivade, ld. Advocate for the accused.
10.
Section 340 of the Cr. P.C. reads 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 the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub­section (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 for the accused before such Magistrate, or if the alleged offence is non­bailable 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.
...5/­
..5.. MA 479/12 in SC 240/13
(2)
The power conferred on a Court by sub­section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub­section (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 sub­section (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.”
11.
Ld. Advocate Ms. Abha Singh also filed written notes of arguments. I have also gone through the roznama of the Metropolitan Magistrate Court. It is mentioned in roznama dated 30.03.2007 that the Medical Officer Dr. Avinash Dhale is present. He is not a concerned medical officer, pertaining to injury certificate and P.M. report. The APP has collected addresses of the concerned medical officers pertaining to the injury certificate and P.M. Report, so Dr. Dhale is also sent back on the submission of APP. There is also roznama dated 12.05.2008. As per roznama, Medical Officer Mr. Narvekar is present. He states that he is not the concerned Medical Officer of examination. So he is discharged.
...6/­
..6.. MA 479/12 in SC 240/13
12.
Section 191 of the I.P.C. reads as under:­
“191. Giving false evidence :­ Whoever, being legally bound by an oath or by an express provision of law 10 state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1 – A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2 – A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.”
13.
Section 192 of the I.P.C. reads as under:­
“192. Fabricating false evidence – Whoever causes any circumstance to exist or [makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement], intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that ...7/­
..7.. MA 479/12 in SC 240/13
such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said “to fabricate false evidence”. 14.
Section 193 of the I.P.C. reads as under:­
“193. Punishment for false evidence :­ 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.”
15.
Section 199 of the I.P.C. reads as under:­
“199. False statement made in declaration which is by law receivable as evidence :­ Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, ...8/­
..8.. MA 479/12 in SC 240/13
and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.”
16.
It is surprising to note that ld. Advocate Ms. Abha Singh argued that the star witness Kamal Khan is not examined by the prosecution who was present at the time of the incident. It is further contended that the testimony of Kamal Khan is very important. Further it is contended by ld. Advocate Ms. Abha Singh to call the witness u/s.311 of the Cr. P.C. Ms. Abha Singh also relied on some of the citations in the written notes of arguments.
17.
Further it is argued by Ms. Abha Singh that the prosecution has made a mockery of trial by dropping 37 witnesses out of 64 witnesses cited by the prosecution. Further according to her, the statements of Kamal Khan and Ravindra Patil were not recorded u/s.164 of the Cr. P.C. Further it is argued that the accused has examined Ashok Singh to show that the vehicle was not driven by the accused. Therefore, Kamal Khan's testimony shall be vital to prove the act of perjury against Ashok Singh. Hence, in the written notes of argument, it is submitted that Kamal Khan be examined u/s.311 of the Cr. P.C.
18.
In my opinion, the applicant has no locus­standi to address the Court to call the witness u/s.311 of the Cr. P.C. or the prosecution ...9/­
..9.. MA 479/12 in SC 240/13
has dropped 37 witnesses, etc. Mr. Gharat, Spl. P.P. is appointed in this case who is in control of the case. The applicant has no locus standi to interfere in the administration of justice when the matter is now fixed for judgment on 06.05.2015. Further the applicant has no locus standi to address the Court that the statements of Ravindra Patil (complainant) and Kamal Khan were not recorded u/s.164 of the Cr. P.C.
19.
It is alleged that the police submitted wrong names of Doctors and thereby the matter is delayed and the accused was benefited by appearing in Cinemas. One Muslim Shaikh was injured and his medical report reveals the name of Dr. Tarun Sukla and R.M.O. Dr. S.S. Samant, but wrong names were furnished by police before the Addl. Chief Metropolitan Magistrate, Bandra, and therefore summons was issued to two Doctors who were not concerned. Defence admitted medical certificates and postmortem report in present Sessions Case No.240/13.
20.
(Exhibit J) application of APP is also attached with the written submissions. In the said application, it is contended that the injured were examined by Dr. Tarun Sukla and also record shows that Dr. S.S. Samant and Dr. Narvekar are Doctors' names mentioned in the certificate. In the interest of justice, the prosecution wanted to examine Dr. A.D. Narvekar and Dr. S.S. Samant. Further it is submitted that Dr. Tarun Shukla left the job from Bhabha Hospital and presently serving at Dubai. On the said application, summons were issued.
21.
It is pertinent to note that Dr. Narvekar was not examined nor Dr. Dhale was examined though they were not concerned and they ...10/­
..10.. MA 479/12 in SC 240/13
were discharged. These Doctors were not examined on oath. However, as per the application of ld. APP, the name of Dr. Narvekar is mentioned in the certificate so also on the application of APP, summons was issued. In my opinion, question of misleading the Court does not arise. However, APP was directed to furnish the list of witnesses. The Doctors are never examined on oath. I find that the allegations are not covered under the ambit and scope of Sec.191, 192, 193 and 199 of the IPC. Further ingredients of Sec.191, 192, 193 of the IPC are also not attracted. Hence, the grounds mentioned in the application to initiate preliminary enquiry as provided u/s.340 of the Cr. P.C. are not made out.
22.
The applicant had filed the application in Bandra Court. The main case bearing C.C. No.490/PS/2005 has been transferred to the Sessions Court. Therefore, the present M.A. was transferred to this Court. On behalf of the applicant, arguments were advanced to re­call Kamal Khan and also the statement of Kamal Khan, complainant Patil were not recorded u/s.164 of the Cr.P.C., the prosecution has dropped 37 witnesses. Such arguments were advanced when the applicant is not at all concerned with the said issue. He is third person and has no locus­standi to address to Court to re­call the witness.
23.
Ld. SPP Mr. Gharat is in charge of the Sessions Case. When the applicant has no concern and the arguments were advanced other than the issue involved in the Miscellaneous Application and also considering the fact that the Court's precious time was consumed, I find that the applicant is liable to be saddled with the cost of Rs.10,000/­. ...11/­
..11.. MA 479/12 in SC 240/13
The applicant is directed to deposit cost of Rs.10,000/­ within 2 months from the date of the order, failing which Collector to recover the amount from the applicant by way of Land Revenue and deposit to the Trial Court. After depositing the amount by the applicant within two months or failing which the Collector to take steps to recover the amount by way of land revenue. The amount of Rs.10,000/­ deposited by the applicant be given to Mumbai District Legal Services Authority. In view of this, I proceed to pass the following order :­
O R D E R
1.
M.A. No.479/12 stands dismissed.
2.
The applicant is saddled with costs of Rs.10,000/­.
3.
The applicant to deposit costs within two months from today, failing which, Collector to take steps to recover the amount by way of Land Revenue and deposit in the Court.
4.
After depositing the amount in the Court, the amount of Rs.10,000/­ be given to Mumbai District Legal Services Authority.
Order is dictated and pronounced in the open Court.
(D. W. DESHPANDE)
Addl. Sessions Judge,
Gr. Bombay
Date : 06.05.2015
Date of dictation
Date of Transcription Date of signature Date of delivery to C.C.S. : 06/05/2015
: 07/05/2015
: : .../­