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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NOS. 9-10  OF 2016 (Arising from S.L.P. (Criminal) Nos. 7153-7154/2013)

PREM SAGAR MANOCHA  … APPELLANT (S) VERSUS

STATE (NCT OF DELHI) … RESPONDENT (S)

J U D G M E N T  

KURIAN, J.:

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.

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SHORT FACTS:

3. In  connection with the investigation of  F.I.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:  

“1. 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 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/1 and C/2) is .22.

(ii) These  two  cartridge  cases  (C/1  and  C/2) appear to have been fired from pistol.

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(iii) No definite opinion could be given on two .22 cartridge cases (C/1 and C/2) in order to link firearm  unless  the  suspected  firearm  is available for examination.”

(Emphasis supplied)

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, by judgment dated 20th

December  2006,  the  High  Court  convicted  all  of  them.  The

conviction  was  upheld  by  this  Court  in  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

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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.1,  in  Ex-PW-95/1B

regarding the bore of two empty cartridges I came to the conclusion that the caliber of two cartridge  cases  (marked  C/1  and  C/2) examined by me is .22 bore.

(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”.

(iii) Query  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/1 and C/2) in order to link with the firearm  unless  the  suspected  fire  arm  is available for examination.

Court question

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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/1 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 C1 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 appeared to have been fired from two different  firearms.  Definite  opinion  would

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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  IPC  “Of  False

Evidence and Offences Against Public Justice”. As per Section 193

of IPC, “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  de-

scription for a term which may extend to three years, and shall

also be liable to fine……” .

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11. Section 340 of CrPC falls under Chapter XXVI of the Code-

“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 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-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 preliminary inquiry which is meant

only to form an opinion of the court, and that too, opinion on an

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offence ‘which appears to have been 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 placed 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  Maharashtra2 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 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

1 (1979) 4 SCC 482 2 ( 2002) 1 SCC 253

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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  inquiry  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 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 that, the purpose of preliminary 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

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  Sharma  off  the  hooks.  It  was

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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 of IPC. 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

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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 C/1 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

stated  that  “I  have  already  stated  these  two  cartridge  cases

appear 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

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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. In fact, this Court, in the decision rendered on the appeal

filed  by  the  accused  and  reported  in  Sidhartha  Vashisht  @

Manu Sharma v.  State (NCT of Delhi)3, 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 opinion 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)

 3 (2010) 6 SCC 1

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17. This Court in State (Delhi) v. Pali Ram4 held 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 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  Aggrawala v.  Regency

Hospitals5, 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.”

4 (1979) 2 SCC 158 5 (2009) 9 SCC 709

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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. (R) Umeed Ali Khan v.

Dr. (Mrs.) Sultana Ibrahim and Others6.  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 1976 Kar. 762.  It  is  always  risky  to  base  the  findings  of genuineness of writing on Expert's opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz 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

6 LEX/SCPK/0483/2006

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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 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 of CrPC. After all, it is an opinion given by an expert

and  a  professional  and  that  too  especially  when  the  expert

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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 form 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 process of scrutiny. The inference drawn

thereafter  is  still  an  opinion  based on  his  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 "Ikarian Reefer")7, the

7 [1995] 1 Lloyd's Rep 455

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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 CrPC.

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

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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.

.…….…..…………CJI.                       (T. S. THAKUR)

....……………………J.         (KURIAN JOSEPH)

New Delhi; January 6, 2016.

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