Prem Sagar Manocha v. State (nct of Delhi)
KURIAN, J.: I. Leave granted.
2. Appellant is aggrieved by the proceedings initiated by the High
Court of Delhi against him under Section 340 of The Code of Criminal
Procedure, 1973 (hereinafter referred to as 'CrPC') which culminated
in the impugned order dated 22.05.2013 whereby the High Court directed
its Registrar General to file a complaint against the respondent.
SHORT FACTS:
3. In connection with the investigation of F.l.R. No. 287 of 1999
registered at Police Station, Mehrauli (Jessica Lal Murder Case), the
Police sought an expert opinion from the State Forensic Science
Laboratory, Rajasthan by letter dated 19.01.2000. The expert opinion
was in respect of the following three questions:
"I. Please examine and opine the bore of the two empty
cartridges present in the sealed parcel.
2. Please opine whether these two empty cartridges have
been fired from a pistol or a revolver.
3. Whether both the empty cartridges have been fired from
the same firearm or otherwise."
(Emphasis supplied)
4. The appellant at the relevant time was working as the Deputy H
A Director of the Laboratory. He forwarded a report dated 04.02.2000
with the following result of examination:
"(i) The caliber of two cartridge cases (C/J and C/2) is .22.
(ii) These two cartridge cases (C/I and C/2) appear to have
been fired from pistol.
(iii) No definite opinion could be given on two .22 cartridge
cases IC/I and C/2) in order to link firearm unless the
suspected firearm is available for examination."
(Emphasis supplied)
C 5. During the trial before the Sessions Court, New Delhi, 101
witnesses were examined for the prosecution. Appellant was PW-95.
The trial court acquitted all the ten accused of all the charges. In Criminal
Appeal 193 of 2006, hy judgment dated 20'" December 2006, the High
Court convicted all of them. The conviction was upheld by this Court in
D judgment dated 19.04.2010 [The decision is reported in (2010) 6 SCC
1].
6. Disturbed by the conduct of many of the witnesses turning
hostile, the High Court, in the appeal against acquittal, initiated suo motu
proceedings, by notice dated 20.12.2006 against 32 witnesses including
the appellant. After considering their replies, the proceedings against a
few of them were dropped. However, the appellant and a few others
were directed to be proceeded against. The Court was of the opinion
that the oral evidence tendered by the appellant reflected a shift in stand
from that of the written opinion which was apparently to help the accused,
and hence, Section 193 of the Indian Penal Code ( 45 of 1860) (hereinafter
referred to as 'IPC') was attracted.
7. In order to appreciate the factual position a little more in detail,
which is necessary for the purpose of this appeal, we shall extract the
relevant portion of the deposition:
"And after examination the report was prepared with reference
to the queries. My report is Ex. PW-95/2 which was typed at
my dictation and bears my sign at point A. On examination I
came to the conclusion as under:
(i) In answer to query no. I, in Ex-PW-95/lB regarding the
bore of two empty cartridges I came to the conclusion that
the caliber of two cartridge cases (marked C/I and C/2)
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 41
[KURIAN, J.]
examined by me is .22 bore. A
(ii) Regarding query no. 2 the two cartridge cases in question
1 came to the conclusion that these two cartridges appear
to have been fired from pistol. The query at no.2 was "please
opine whether these two empty cartridges have been fired
from pistol or revolver". B
(iii) Ouery No. 3 was 'whether both the empty cartridges have
been fired from the same fire arm which had not been sent
for examination in order to link the cartridge cases with
that. So my conclusion was that no definite opinion could
be.given on two .22 bore cartridge cases (C/l and C/2) in c
order to link with the firearm unless the suspected fire arm
is available for examination.
Court question
Q. For reply to query no. 3 the presence of the fire arm was
not necessary. The question was whether the two empty
cartridges have been fired from one instrument or from
different instruments?
Ans. The question is now clear to me. I can answer the query
here and now. These two cartridge cases were examined
physically and under sterio and comparison microscope to
study and observe and compare the evidence and the
characteristic marks present on them which have been
printed during firing. After comparison I am of the opinion
that these two cartridge cases C/l and C/2 appeared to
have been fired from two different fire arms."
(Emphasis supplied)
8. The witness was declared hostile, and in cross examination,
the following question and its answer were tendered.
"Q. Is it correct that according to your own notings at pt. C to
C on worksheet you were of the view that definite opinion
as to whether the fired cases Cl and C2 have been fired
from the same firearm i.e. one firearm or from two different
weapons can be given only if the firearm involved in question
is produced otherwise not.
Ans. I have already stated that these two cartridge cases
42
SUPREME COURT REPORTS [2016] I S.C.R.
appeared to have been fired from two different firearms.
Definite opinion would have been given once the weapon
is given to me for examination."
(Emphasis supplied)
9. Shri K. V. Viswanathan, learned Senior Counsel appearing
for the appellant, contended that being an expert and a professional, the
appellant only tendered his opinion in response to the specific question
by court and that does not amount to even a borderline case of perjury.
10. Perjury falls under Chapter XI of the !PC "Of False Evidence
and Offences Against Public Justice". As per Section 193 of !PC,
"whoever intentionally gives false evidence in any stage of a judicial
proceeding, or fabri-cates 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 de-scription for a
term which may extend to three years, and shall also be liable to
fi " ne ...... .
11. Section 340 of CrPC falls under Chapter XXVI of the Code-
E "Provisions as to Offences Affecting the Administration of Justice".
Either on an application or otherwise, if any court forms an opinion that
it is expedient in the interests of justice that an inquiry should be made in
respect of an offence referred to under Section 195 of CrPC which
appears to have been committed in relation to a proceeding in that court,
the court after such preliminary inquiry, enter a finding and make a
F complaint before the Magistrate of competent jurisdiction. It is this
jurisdiction which has been invoked suo motu by the High Court in the
Criminal Appeal, leading to the impugned order.
12. Section 340 of CrPC, prior to amendment in 1973, was
Section 479-A in the 1898 Code and it was mandatory under the pre-
G amended provision to record a finding after the preliminary inquiry
regarding the commission of offence; whereas in the 1973 Code, the
expression 'shall' has been substituted by 'may' meaning thereby that
under 1973 Code, it is not mandatory that the court should record a
finding. What is now required is only recording the finding of the
H preliminary inquiry which is meant only to form an opinion of the court,
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 43
[KURIAN, J.]
and that too, opinion on an offence 'which appears to have been A
committed', as to whether the same should be duly inquired into. We are
unable to appreciate the submission made by the learned Senior Counsel
that the impugned order is liable to be quashed on the only ground that
there is no finding recorded by the court on the commission of the offence.
Reliance pla~ed on Har Gobind v. State of Haryana1 is of no assistance
to the appellant since it was a case falling on the interpretation of the
pre-amended provision of the CrPC. A three-Judge Bench of this Court
in Pritish v. State of Maharashtra' has even gone to the extent of
holding that the proceedings under Section 340 of CrPC can be
successfully invoked even without a preliminary inquiry since the whole
purpose of the inquiry is only to decide whether it is expedient in the
interest of justice to inquire into the offence which appears to have been
committed. To quote:
"9. Reading of the sub-section makes it clear that the hub of this
provision is formation of an opinion by the court (before which
proceedings were to be held) that it is expedient in the interest of D
justice that an inquiry should be made into an offence which appears
to have been committed. In order to form such opinion the court
is empowered to hold a preliminary inquiry. It is not peremptory
that such preliminary inquiry should be held. Even without such
preliminary inquiry the court can form such an opinion when it
appears to the court that an offence has been committed in relation
to a proceeding in that court. It is important to notice that even
when the court forms such an opinion it is not mandatory that the
court should make a complaint. This sub-section has conferred a
power on the court to do so. It does not mean that the court
should, as a matter of course, make a complaint. But once the
court decides to do so, then the court should make a finding to the
effect that on the fact situation it is expedient in the interest of
justice that the offence should further be probed into. If the court
finds it necessary to conduct a preliminary i'1Quiry to reach such a
finding it is always open to the court to do so. though absence of
any such preliminary inquiry would not vitiate a finding reached G
by the court regarding its opinion. It should again be remembered
that the preliminary inquiry contemplated in the sub-section is not
for finding whether any particular person is guilty or not. Far from
1 0 979) 4 sec 482
2 ( 2002) 1 sec 253 H
A that. the purpose of preliminar:y inquiry. even if the court opts to
conduct it. is only to decide whether it is expedient in the interest
of justice to inquire into the offence which appears to have been
committed."
13. In the impugned order, the High Court did form an opinion
B after the inquiry. To quote:
"90. It was argued on behalf of the state by the learned standing
counsel that the ballistic expert's deposition, Ex. PW-95 was
calculated to let the accused Manu Shanna off the hooks. It was
submitted that the witness had stated that no definite opinion could
be given whether the two empty cartridges were fired from the
same weapon. However, on the basis of the same material, he
took a somersault and gave a completely contrary opinion in the
Court saying that they appear to have been fired from different
weapons. It was submitted that by the time this witness stepped
on to the box, the defence had formed its definite plan about a
"two weapon theory". The deposition of this witness was sought
to support the "two weapon theory". That this court and Supreme
Court rejected the theory did not in any way undermine the fact
that PW-95 gave false evidence."
14. Therefore, what is to be seen is whether the High Court is
justified in forming the opinion on commission of the offence under Section
193 oflPC. The stand of the appellant in his report (Ex PW-95/2) dated
04.02.2000, and while deposing before the court at the trial, it is to be
noted, was consistent. Query No.3 was whether both the empty cartridges
were fired from the same firearm or otherwise. Since there was no
recovery of the firearm, the same was not sent along with the cartridges
for the examination by the expert. Therefore, the opinion tendered was
that he was unable to give any definite opinion in answer to Query No.3,
"unless the suspected firearm is available for examination." It was at
that juncture, there was a court question. According to the court, "'for
reply to query no. 3, the presence of the firearm was not necessary.
The question was whether the two empty cartridges have been fired
from one instrument or from different instruments". To that question,
the appellant responded that "after comparison, I am of the opinion
that these two cartridge cases Cl! and C/2 appeared to have been
fired from two different firearms". It is not a clear, conclusive, specific
and definite opinion. In further examination, the appellant has clearly
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 45
[KURIAN, J.]
stated that "/ have already stated these two cartridge cases appear A
to have been fired from two different fire arms. Definite opinion
would have been given once the weapon is given to me for
examination".
15. We fail to understand how the stand taken by the appellant, as
above, attracts the offence of perjury. As we have already observed
above, the appellant has all through been consistent that as an expert, a
definite opinion in the case could be given only if the suspected firearm
is available for examination. It is nobody's case that scientifically an
expert can give a definite opinion by only examining the cartridges as to
whether they have been fired from the same firearm. It was the trial
court which insisted for an opinion without the presence of the firearm,
and in that context only, the appellant gave the non-specific and indefinite
opinion. An expert, in such a situation, could not probably have given a
different opinion.
16. Jn fact, this Court, in the decision rendered on the appeal filed
by the accused and reported in Sidhartha Vashisht @ Manu Sharma
v. State fNCT ofDelhil3, has specifically dealt with the issue explaining,
and in a way, justifying the stand of the appellant. To quote:
"180. Similar is the case with the expert opinion of PW 95 which
is again inconclusive. There is no evidence on record to suggest
that PW 95 gave an oninion to oblige the prosecution. On the
contrary, his response to the court question reveals that he was
extremely confused as to the issue which had to be addressed by
him in the capacity of an expert. In the concluding part of his
testimony he reaffirms the opinion given by him which is that
without test firing the empties from the weapon of offence no
conclusive opinion can be given."
(Emphasis supplied)
17. This Court in State (Delhil v. Pali Ram' hekl that:
"51. .. .. the real function of the expert is to put before the court
all the materials, together with reasons which induce him to come
to the conclusion, so that the court, although not an expert, may
form its own judgment by its own observation of those materials.
Ordinarily, it is not proper for the court to ask the expert to give
3 (2010) 6 sec 1
4 o 979) 2 sec 158
46
SUPREME COURT REPORTS [2016] I S.C.R.
his finding upon any of the issues, whether of law or fact,
because, strictly speaking, such issues are for the court or jury to
determine".
18. In Ramesh Chandra Ai:grawala v. Regency Hospitals',
this Court has dealt with the difference between an 'expert' and 'a
witness of fact'.
"20. An expert is not a witness of fact and his evidence is really
of an advisory character. The duty of an expert witness is to
furnish the Judge with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable the Judge to form
his independent judgment by the application of these criteria to
the facts proved by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested becomes a factor
and often an important factor for consideration along with other
evidence of the case. The credibility of such a witness depends
on the reasons stated in support of his conclusions and the data
and material furnished which form the basis of his conclusions."
19. Mr. Vishwanathan, learned Senior Counsel has invited our
attention and has placed heavy reliance on a judgment of the Supreme
Court of Pakistan in Sqn. Ldr. IR) Umeed Ali Khan v. Dr. fMrs.l
Sultana Ibrahim aud Others'. While dealing with the issue of perjury
by expert witnesses, observed as follows:
"6. We have also dilated upon the import and significance of the
Handwriting Expert report by whom it was opined that the "receipt"
was signed by Dr. Sultana Ibrahim. It is well-settled by now that
Expert's evidence is only confirmatory or explanatory of direct or
circumstantial evidence and the confirmatory evidence cannot be
given preference where confidence-inspiring and worthy of
credence evidence is available. In this regard we are fortified by
the dictum as laid down in Yaqoob Shah v. The State PLD 1976
SC 53. There is no doubt that the opinion of Handwriting Expert
is relevant but it does not amount to conclusive proof as pressed
time and again by the learned Advocate Supreme Court on behalf
of petitioner and can be rebutted by overwhelming independent
evidence. In this regard reference can be made to Abdul Majeed
v. State PLD I 976 Kar. 762. lt is always risky to base the findings
of genuineness of writing on Expert's opinion. In this behalf we
s (2009) 9 sec 109
6 LEX/SCPK/0483/2006
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 47
[KURIAN, J.]
are fortified by the dictum as laid down in case of Ali Nawaz A
Gardezi v. Muhammad Yousuf PLD 1963 SC 51. It hardly needs
any elaboration that expert opinion must always be received with
great caution, especially the opinion of Handwriting Experts. An
expert witness, however, impartial he may wish to be, is likely to
be unconsciously prejudiced in favour of the side which calls him.
The mere fact of opposition on the part of the other side is apt to
create a spirit of partisanship and rivalry, so that an Expert witness
is unconsciously impelled to support the view taken by his own
side. Besides it must be remembered that an Expert is often called
by one side simply and solely because it has been ascertained that
he holds views favourable to its interest. Although such evidence
has to be received with "great caution'', yet such evidence, and
reasons on which it is based. are entitled to careful examination
before rejection and non-acceptance by Court of Expert's evidence
does not mean that the Expert has committed perjury. Of all kinds
of evidence admitted in a Court, this is the most unsatisfactory. It D
is so weak and decrepit as scarcely to deserve a place in our
system of jurisprudence"
We are afraid that the decision is of no assistance to the appellant.
since according to that court, the expert is often called by a party after
ascertaining that the expert holds a view in favour of that party. That is
not the situation or scheme under The Indian Evidence Act, 1872. And,
in any case, a Government scientific expert certainly stands on a different
footing.
20. Expert evidence needs to be given a closer scrutiny and
requires a different approach while initiating proceedings under Section
340 ofCrPC.After all, it is an opinion given by an expert and a professional
and that too especially when the expert himself has lodged a caveat
regarding his inability to form a definite opinion without the required
material. The duty of an expert is to furnish the court his opinion and the
reasons for his opinion along with all the materials. It is for the court
thereafter to see whether the basis of the opinion is correct and proper
and then fof111 its own conclusion. But, that is not the case in respect of
a witness of facts. Facts are facts and they remain and have to remain
as such forever. The witness of facts does not give his opinion on facts;
but presents the facts as such. However, the expert gives an opinion on
what he has tested or on what has been subjected to any pr0~ess of
scrutiny. The inference drawn thereafter is still an opinion based on h;s
A knowledge. In case, subsequently, he comes across some authentic
material which may suggest a different opinion, he must address the
same, lest he should be branded as intellectually dishonest. Objective
approach and openness to truth actually form the basis of any expert
opinion.
21. In National .Justice Compania Naviera SA v. Prudential
Assurance Co Ltd (The "lkarian Reefer")', the Queen's Bench
(Commercial Division) even went to the extent of holding that the expert
has the freedom in such a situation to change his views. It was stated
that "if' an expert's opinion is not properly researched because he
considers that insufficient data is available, then this must be stated
with an indication that the opinion is no more than a provisional
one. In cases where an expert witness who has prepared a report
could not assert that the report contained the truth, the whole truth
and nothing but the truth without some qualification, that
qualification should be stated in the report".
22. Hence, merely because an expert has tendered an opinion
while also furnishing the basis of the opinion and that too without being
conclusive and definite, it cannot be said that he has committed perjury
so as to help somebody. And, mere rejection of the expert evidence by
itself may not also warrant initiation of proceedings under Section 340 of
Cr PC.
23. It is significant to note that the appellant's opinion that the
cartridges appeared to have been fired from different firearms was based
on the court's insistence to give the opinion without examining the firearm.
In other words, it was not even his voluntary, let alone deliberate
deposition, before the court. Therefore, it is unjust, if not unfair, to attribute
any motive to the appellant that there was a somersault from his original
stand in the written opinion. As a matter of fact, even in the written
opinion, appellant has clearly stated that a definite opinion in such a
situation could be formed only with the examination of the suspected
firearm, which we have already extracted in the beginning. Thus and
therefore, there is no somersault or shift in the stand taken by the appellant
in the oral examination before court.
24. The impugned proceedings initiated against the appellant under
Section 340 of CrPC are hence quashed. The appeals are allowed.
Devika Gujral Appeals allowed.
7 [199511 Lloyd's Rep 455