OMKAR NAMDEO JADHAO AND ORS.versusSECOND ADDITIONAL SESSIONS JUDGE BULDANA AND ANR.

A                 OMKAR NAMDEO JADHAO AND ORS.
                                 v.
         SECOND ADDITIONAL SESSIONS JUDGE BULDANA AND ANR.

                                  JANUARY 4, 1996

B                   [K. RAMASWAMY ANDG.B. PATTANAIK, JJ.]


            Code of Criminal Procedure, 1973 :

         S. 340-:--lssu.e of notice under-For prosecution under Ss. 194 and
    195-Sessi9ns Judge relving on 3.161 Cr. P.C. Statements which are not
c   evidence-Also physical .features of the old and i~(irm ladies taken into
    account in arriving at the .finding-High Court also not properly considering
    the matter while going into the question regarding discharge of the accused
    for other offences-Held, issuance of notice under S. 340 Cr. P.C. wi;usti(ied-
    Hence quashed.
D
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 36 of
    1996.

          From the Judgment ·and Order dated 10.3.92 of the Bombay High Court
    in Cr!. A No, 20 of 1991.
E
            A.K. Sanghi for the Appellants.

            D.M. Nargolkar and S.M. Jadhav for the Respondents.

            The following Order of the Court was delivered :

F           Leave granted.

           In this case we are concerned with the notice issued by the Second
    Additional Sessions Judge, Buldana, on December 3, 1990 to the appellants
    for prosecution under Sections 194 and 195, I.P.C. for alleged fabrication of
G   the record and setting up a case said to be false against two ladies, Jamman
    and Laxmi said to be aged about 60 and 80 years respectively. The Addi-
    tional Sessions Judge had stated that they ,are infirm persons; unable to walk
    and stand without the support of others. Consequently, it would be difficult
    to believe the version of the police that they pelted stones and kicked the
    police officers while the latter were discharging the official duty in appre-
H   bending Latur Hasan. While setting aside the charges framed against them,
                                         158
         0.N. JADHAO v. JIND ADDL. SESSIONS JUDGE BULDANA                159
notice was issued under section 340, Cr. P.C. for prosecution of the             A
appellants .under sections 194 and 195, I.P.C.

      It is seen that the observation made by the Session Judge, as confirmed
by the Bombay High Court, Nagpur Bench in the impugned Judgment dated
10.3.1992 made in Criminal Application No. 20/91 is based on S.161
statements recorded during the investigation. Admittedly, no evidence has        B
been recorded. The court -should not come to the conclusion on the basis of
S.161 statements whi.ch are not evidence. It can be used at the trial only for
contradictions or omissions when the witness was examined. Nor it could be
contradicted by looking at the physical features of the accused even before
they are examined. The Additional Sessions Judge and discharged them             c
concluding that the police officers had fabricated the record. It would appear
that the learned Sessions Judge had overstepped his jurisdiction in recording
a finding, while looking at the physical features of the accused, that the
police had fabricated the record. The High Court has also not properly
considered the matter while going into the question regarding discharge of
the accused for other offences. Under these circumstances, we hold that in       D
view of the finding recorded by the Sessions Judge of fabrication of the
record and that the case is false one, issuance of notice under Section 340,
Cr. P.C. is wholly unjustified. The said order of the Session Judge is
accordingly quashed.
                                                                                 E
       The appeal is accordingly allowed.

G.N.                                                        Appeal allowed.