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PETITIONER: OMKAR NAMDEO JADHAO & ORS.

       Vs.

RESPONDENT: SECOND ADDITIONAL SESSIONS JUDGE BULDANA & ANR.

DATE OF JUDGMENT:       04/01/1996

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) G.B. PATTANAIK (J)

CITATION:  1996 AIR  929            1996 SCC  (1) 753  JT 1996 (1)    38        1996 SCALE  (1)32

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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 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  Additional 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 apprehending Latur Hasan. While setting  aside the charges framed against them, notice was issued  under section  340, Cr.  P.C. for prosecution of the appellants under sections 194 and 195, I.P.C.      It is  seen that  the observation  made by the Sessions Judge, as  confirmed by  the of  Bombay High  Court,  Nagpur Bench in  the impugned  judgment  dated  10.3.1992  made  in Criminal Application  No.20/91 is  based on  161  statements recorded during  the investigation.  Admittedly, no evidence has  been  recorded.  The  court  Should  not  come  to  the conclusion on  the basis  of 161  statements which  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 witnesses even before they are examined. The Additional Sessions  Judge had  discharged  them  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

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regarding discharge of the accused for other offences. Under these circumstances,  we hold  that in  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 Sessions Judge is accordingly quashed.      The appeal is accordingly allowed.