Gujrat HC: 25000/- fine for perjury

SCA/9161/2010 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 9161 of 2010

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BABUBHAI MERVANBHAI PATEL – Petitioner

Versus

STATE OF GUJARAT THROUGH SECRETARY & 1 – Respondents

====================================== Appearance : MR M.B.GANDHI FOR MR NAYAN D PAREKH for the Petitioner. MR M.R.MENGDEY, AGP for Respondent(s) : 1, None for Respondent(s) : 2,

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CORAM :

HONOURABLE MR.JUSTICE M.R. SHAH

Date : 18/08/2010

ORAL ORDER

In response to the Notice issued by this Court, the petitioner is personally present in the Court and Mr.M.B.Gandhi, learned advocate has appeared for him. The petitioner has tendered unconditional apology and has requested to pardon him as he is senior citizen. He has admitted the guilt, however, he has requested not to initiate any proceedings for perjury. He has submitted that he is ready and willing to pay fine/heavy cost, which may be quantified by this Court.

Before considering as to whether the unconditional apology should be accepted or not, let the petitioner deposit an amount of Rs.25,000/- (Rupees Twenty Five Thousands only) as probable fine/cost with the Registry of this Court on or before 23/08/2010 in lieu of initiation of proceedings of perjury and for making false statement before this Court on affidavit. Only thereafter, request of the petitioner to pardon him and/or as to whether to accept his unconditional apology or not, shall be considered.

S.O. to 23/08/2010. To be placed in 11:00 a.m. board.

[M.R.SHAH,J]

*dipti

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SC Guidelines for PIL, Also perjury conidered by HC

WPPIL/2/2011 22/22 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

WRIT PETITION (PIL) No. 2 of 2011

For Approval and Signature:

HONOURABLE MR.JUSTICE JAYANT PATEL

HONOURABLE MR.JUSTICE J.C.UPADHYAYA

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1

Whether Reporters of Local Papers may be allowed to see the judgment ?

2

To be referred to the Reporter or not ?

3

Whether their Lordships wish to see the fair copy of the judgment ?

4

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether it is to be circulated to the civil judge ?

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RAJESH HIMMATLAL SOLANKI – PETITIONER

Versus

UNION OF INDIA THROUGH SECRETARY & 3 – RESPONDENT

========================================================= Appearance :

MR HR SOLANKI for PETITIONER : 1,

MR MK VAKHARIA for RESPONDENT : 1,

None for RESPONDENT : 2 – 4.

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CORAM :

HONOURABLE MR.JUSTICE JAYANT PATEL

and

HONOURABLE MR.JUSTICE J.C.UPADHYAYA

Date : 10/02/2011

CAV JUDGMENT

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. The question arise in the petition is as to whether offering of prayers at “Foundation Laying Ceremony”, called in popular language as “Bhoomi Pujan” for construction of new building could be said as non-secular activity?

2. The another question incidentally arise for the consideration is the bonafides of the petitioner in the present petition as per the norms set by the Apex Court in the recent decision in the case of State of Uttaranchal Vs. Balvantsinh reported at (2010) 3 SCC 402.

3. On 01.05.2010, the Foundation Laying Ceremony/Bhoomi Pujan has been performed and therefore, on facts, to that extent, one has to accept and based on such facts, the questions arise in the petition as sought to be raised by the petitioner claiming himself to be the journalist, are required to be considered and examined.

4. We may record that at the first hearing of the matter before us, when certain queries were raised by the Court, the petitioner submitted that he is not an advocate and therefore, he would like to engage an Advocate and prayed time. We permitted so and thereafter, we have heard Mr.Girish Patel, with Mr.Purvish Malkan, learned counsels who have appeared in the matter for the petitioner.

5. Much emphasis was given by the learned counsel for the petitioner on the aspects of the secular character of our Constitution and the word “Secular” incorporated in the preamble of the Constitution read with the relevant Articles of the Constitution provided for right to freedom of religion were pressed in service. It was submitted that as per the constitutional debates which had taken place before our Constitution came into force, there were various discussions on the said aspect, some of which are referred to in the petition and some were submitted at the time of hearing to contend that the State cannot have any religion. Any action on the part of the State to identify itself with any particular religion could be said to be non-secular activity on the part of the State. It was contended that offering prayers with the help of Pandits who spoke Sanskrit slokas at the Bhoomi Pujan could be termed as identification by the Constitutional dignitaries or the High Court with Hindu religion and such activity would hurt the religions feeling of the citizens who professes other religion and therefore, such action can be said as non-secular and deserves to be declared as unconstitutional. It was submitted that the petitioner has no enmity with any Constitutional dignitaries who offered prayers at the ceremony including the other Honourable Judges who attended and participated at the function, but such function can be said as resulting into creating adverse feeling amongst the other persons who do not believe in Hindu religion. It was also submitted that the High Court being the highest judiciary in the State should guard the constitutional rights given to all citizens and should maintain the secular character of the State. The performance of such ceremony as per Hindu religion would shake the confidence of the people who do not believe in Hindu religion and therefore, the action deserves to be declared as unconstitutional as prayed in the petition. It was also submitted that secularism being one of the basic character of the Constitution, even Parliament cannot amend the Constitution so as to alter the basic structure of the Constitution. Therefore, such would equally apply to the High Court which is the highest judiciary in the State and the constitutional body to guard the rights of the citizen in the State.

6. We need to emphasise that our constitution is supreme and the preamble and the various rights provided for freedom of religion under the Constitution do make it abundantly clear that secularism is the core or basic character of our Constitution and no further discussion would be required on the said aspects. At the same time, we do lay emphasis that any action on the part of the State or its instrumentality resulting into non-secularism has to be held as unconstitutional. But we need to examine the true and correct meaning of the word “secularism”.

SECULARISM :

7. In S.R. Bommai Vs. Union of India reported at (1994) 3 SCC 1, the Apex Court had an occasion to examine the said aspect in great detail. In the said decision, the Apex Court (through K. Ramaswamy, J.) (concurring with the majority) observed that secularism in the Constitution is not anti God and it is sometimes believed to be a stay in a free Society. The secularism, therefore, represents faiths born out of the exercise of rational faculties. It enables people to see the imperative requirements for human progress in all aspects and cultural and social advancement and indeed for human survival itself. It also not only improves the material conditions of human life, but also liberates the human spirit from bondage of ignorance, superstition, irrationality, injustice, fraud, hypocrisy and oppressive exploitations. In other words, though the whole course of human history discloses an increasing liberation of mankind, accomplished thought, all is covered by the term secularism. It was further observed that secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis. Religions with secular craving for spiritual tolerance have flourished more and survived for longer period in the human history than those who claimed to live in a non-existent world of their own. Positive secularism, therefore, separates the religious faiths personal to man and limited to material, temporal aspects of human life. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become uncertain and unreal. Secularism teaches spirit of tolerance, catholicity of outlook, respect for each other’s faith and willingness to abide by rules of self-discipline. The more devoted a person in his religious belief, the greater should be his sense of heart, spirit of tolerance, adherence of secular path. Secularism, therefore, is not antithesis of religious devoutness. Our religious tolerance received reflections in our constitutional creed. It was also observed that Religion in the positive sense, is an active instrument to allow the citizen full development of his person, not merely in the physical and material but in the non-material and non-secular life. Religion is one of belief personal to the individual which binds him to his conscience and the moral and basic principles regulating the life of a man had constituted the religion, as understood in our Constitution. Freedom of conscience allows a person to believe in particular religious tenets of his choice. It was observed that the State does not extend patronage to any particular religion, State is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part. The concept of “secularism” was not expressly engrafted while making the Constitution, its sweep, operation and visibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution (42^nd Amendment Act). The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare.

8. In Ramjanmabhumi Babri Masjid issue, for acquisition, in case of Dr.M.Ismail Faruqui Vs. Union of India reported at AIR (1995) SC 605, it was observed that the concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood. After considering the earlier decision of the Apex Court in the case of S.R. Bommai (supra), it was observed that the provisions of section 7(2) of the Acquisition of Certain Area at Ayodhya Act, 1993, in now way curtains the practice of the right of worship of the Muslim community in the disputed area. Further, any step taken to arrest escalation of communal tension and to achieve communal accord and harmony can, by no stretch of argumentation, be termed non-secular much less anti-secular or against the concept of secularism-a creed of the Indian people embedded in the ethos. It was observed that the constitutional scheme that do guarantee equality in the matter of religion to all individuals and the groups irrespective of their faith emphasising that there is no religion of the State itself. The preamble indicates that it is in this manner, the concept of secularism embodied in the constitutional scheme as a creed adopted by Indian people has to be understood. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution.

9. In State of Karnataka Vs. Dr.Pravin Togadia reported at (2004) 4 SCC 684, the Apex Court observed that welfare of the people is the ultimate goal of all laws and State action, and above all the Constitution. They have one common object, that is to promote the well-being and larger interest of society as a whole and not of any individual or particular groups carrying any brand names. It is inconceivable that there can be social well-being without communal harmony, love for each other and hatred for none. The core of religion based upon spiritual values, which the Vedas, Upanishad and Puranas were said to reveal to mankind, seem to be “Love others, serve others, help ever, hurt never” and “Servae Jana Sukhino Bhavantoo”.

10. The true meaning of the word “secular” can be termed as based on principles of “Vasudeva Kutumbakam”. If to be understood in context of religion, it can be said that let the religion allowed to be followed by those who wants to follow.

11. The aforesaid appears to be the true and real meaning of secularism, viz., equal treatment to all religions by the State. Secularism is a broad religio-traditional consensus and can be termed based on the principles of “Vasudeva Kutumbakam” – Live and let other live. Follow the religion by those who want to follow.

DHARMA AND RELIGION SEPARATE:

11. The Apex Court in the case of A.S.Narayana Deekshitulu Vs. State of A.P. & others reported at (1996) 9 SCC 548, observed that the word “Dharma” denotes upholding, supporting, nourishing, which upholds, nourishes or supports the stability of the society, the maintenance of social order and the general well-being and progress of humankind. Whatever conduces to the fulfillment of these objects is Dharma. It is “Sarva Dharma Samabhav”. It is further observed that the religion as used in Articles 25 and 26 of the Constitution must be construed in its etymological sense. Essentially, religion is what a person regards as cosmos, his maker or his creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic and in fact there are well-known religions in India itself like Budhism and Jainism which do not believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam; Christians in Christ and Christianity; Parsis in Zoroastrianism; Sikhs in Gurugranth Sahib and teachings of Gurunanak Devji, its founder, which is a facet of Hinduism like Brahamos, Aryasamaj etc. It was observed that every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which forsters feeling of brotherhood, amenity, fraternity and equality of all persons which find their foot-hold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which in not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. It was observed that all secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process, etc. The concept of essentially is not itself a determination factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the Court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State. In the very decision, the Apex Court (through Hansaria, J.) (supplementing), observed that the very often the words ‘religion’ and ‘dharma’ are used to signify one and the same concept or notion. To put it differently, they are used interchangeably. Dharma is said to be “Sanatana”, i.e., one which has eternal values; one which is neither time-bound nor space-bound. It is because of this that Rigveda has referred to the existence “Sanatan Dharmani”. This concept of ‘dharma’, therefore, has been with us for time immemorial. Dharma is for stability of the society, maintenance of social order and well being and progress of humankind. Whatever conduces to the fulfillment of these objects is Dharma.

13. In deciding the question as to whether a given religion practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that the yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide this question. Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices, the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religions in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and tenents of its religion. Otherwise, purely secular practices which are not an essential or integral part of the religion are apt to be clothed with a religions form and may make a claim being treated as religious practices within the meaning of fundamental rights of freedom of religionas provided by the Constitution. It is true that the decision of the question as to whether a certain practice is religions practice or not, as well as the question as to whether the affair in question is an affair in the matter of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religions in character. As an illustration, if an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be religious practice, the Court would be justified in rejecting the claim. For example, a disposition towards making a gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. Disposition of property for religious and charitable purpose is recommended in all the religions but the same cannot be said to be an integral part of it. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purpose, he does not cease to be a Christian. Even certain practices adopted by the person professing a particular religion may not have anything to do with the religion itself.

14. The aforesaid shows that the word ‘dharma’ is not in contradistinction to the secularism if it is understood in its real sense, that is, “Sarve Bhavantu Sukhino”. Merely because in certain religious practices, there is no identification of certain offering to the supreme power or almighty would not result into adharma or anti-dharma.

15. In the same manner, in our opinion, we can say that dharma in real sense of mankind embraces to all religion be it, Hindu, Muslim, Christina, Parsi, etc. If the basic human character for the interest of the mankind irrespective of its caste or community or religion are shown as the practices in any religion, such cannot be termed so as to claim exclusive part of a particular religion, but can be said as a secular activity also identified by the religion on the broad principles of “Vasudeva Kutumbakam” or “Sarve Jana Sukhino Bhavantu” being welfare to everybody, hurt to none. It is in this light and background, we need to examine the incident of Foundation Laying Ceremony and the prayers offered at the said incident of Foundation Laying Ceremony.

ACTION OF FOUNDATION LAYING CEREMONY:

16. If the incident of ceremony of laying of foundation for construction of any building is considered in its materialistic sense, it results into starting of construction by laying out foundation. The foundation, if considered in its materialistic sense, it does hold the importance since the building is to stand on such foundation. If such important event is celebrated by the State or the High Court, by no stretch of imagination it can be said that such action of celebration is non-secular in any manner.

17. If such incident is further considered, one needs to excavate the earth to some extent for laying down any foundation. If the earth even if treated in its materialistic sense, the existence of the earth and well being of the earth touches to all mankind on the earth. At the time of excavation of such earth or at the time when a building is to be constructed by adding physical burden, offering of the prayer to the earth to pardon or to graciously bear the burden or the damage, if any, to make the construction successful, which is to be used for betterment of the institution of the High Court, such an action can be termed as for the betterment of all persons connected thereby directly or indirectly, irrespective of their caste or religion or community. Therefore, such offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if “manav dharma” is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation.

18. At the time when the prayers are to be offered to the earth by the dignitaries who had laid down the foundation for the building, simultaneously if sanskrit slokas are spoken by brahmins, it can be said as in furtherance to the prayer offered to the earth. Such slokas could also be termed as supplementing prayers offered by the person/s laying foundation for a noble desire to achieve successful construction of new building. If the ultimate aim for successful construction of the building is holy and with the larger interest of those persons who are to be directly or indirectly benefited by successful construction of the building, irrespective of their caste or community or religion, it would fall within the principles of “Vasudeva Kutumbakam”, welfare to all and hurt to none. Such in no manner can be termed as non-secular activity.

19. The apprehension voiced of the alleged hurt of any religions feeling or that the impartiality of the highest judiciary of the State would be at stake on account of the foundation laying ceremony performed by offering prayers and the sanskrit slokas spoken at that ceremony, can be termed as a pervert view or ingenuine doubts self created in the mind of the petitioner or the persons whose cause is sought to be exposed by the petitioner in the present petition to a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity. Further, as observed earlier, such action of offering prayer to the earth at the time of foundation laying ceremony cannot be termed as an activity by the High Court which may result into flourishing any particular religion as sought to be canvassed. The real object and purpose is for successful construction of the building and not for flourishment of any religion. If for any noble cause, prayers are offered by any person, such would not result into an action for flourishment of any particular religion, but could be termed as for betterment of all persons who are directly or indirectly to be benefited by the successful construction of the building. If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer. The language used for offering prayer or mode adopted for offering prayer with the help of a group speaking a particular language cannot be termed as siding with a person or a group of person adopting a particular mode for offering prayers. As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.

20. We find that when the principles of secularism are considered to test the action, it can be said that the same is by maintaining the spirit of the secularism as envisaged by our Constitution.

21. The aforesaid leads us to examine the next incidental point about the bonafide on the part of the petitioner.

22. The petitioner in first para has titled himself to be a journalist, writer and poet and in para 3 of the petition, the petitioner has stated that the petitioner is filing the petition purely on his own and not at the instance of any person or organisation. But the pertinent aspect is that at para 4.14, the petitioner has inter alia stated as under:

“4.14 Petitioner is an organisation representing a large number of the gross sections of people and working in different parts of Gujarat, especially for the protection and promotion of the rights and interests of the poor and the down trodden and also for the enforcement of their civil liberties and democratic rights. The petitioner organization have large membership cutting across all castes and religious divisions. Many members of the petitioner organisations are atheists and do not believe in or subscribe to any religion or religious practice of any type, while others do believe in their religion, but all are secular and are sincerely committed to the ideal of secularism and sincerely believe that the publical and political life of the nation must be completely free from and independent of any influence, direct or indirect, of religion race or caste.”

Further,at para 8.14, it has been further stated as under:

“8.14 Petitioner is an organisation representing a large number of the gross sections of people and working in different parts of Gujarat, especially for the protection and promotion of the rights and interests of the poor and the down trodden and also for the enforcement of their civil liberties and democratic rights. The petitioner organization have large membership cutting across all castes and religious divisions. Many members of the petitioner organisations are atheists and do not believe in or subscribe to any religion or religious practice of any type, while others do believe in their religion, but all are secular and are sincerely committed to the ideal of secularism and sincerely believe that the publical and political life of the nation must be completely free from and independent of any influence, direct or indirect, of religion race or caste.”

23. The aforesaid prima facie shows that the petitioner is not exposing his own cause but some organisation is behind him and inspite of the same, as observed at para 3, the statement made by him is that the present petition is not at the instance of any other person or organization. The another aspect is that at para 4.16, the petitioner has made statement as under:

“The petitioner immediately sent Telegram to the Hon’ble Chief Justice of the High Court of Gujarat……Annexed hereto and marked as ANNEXURE:A is the copy of the telegram……”

24. If one looks at the telegram, Annexure-A, it is not by the petitioner, Rajesh Himmatlal Solanki, but is by one Valjibhai Patel, describing himself as the Secretary, Council for Social Justice, Premier Shopping Centre, Mirzapur, Ahmedabad-1. If one compares with the identity described by the petitioner in the petition in the cause title, it is altogether different. The aforesaid prima facie shows that somebody else other than the petitioner is behind the petitioner whose cause is sought to be agitated by the petitioner in this petition and instead of the same, the statement is made at para 3 of the petition that the present petition is not at the instance of other persons.

25. The aforesaid is required to be examined in light of the decision of the Apex Court in the case of State of Uttranchal Vs. Balvantsinh (supra) for the test to be satisfied in the matter to be entertained under the Public Interest Litigation. In the said decision, the Apex Court has laid down the following criteria for a Public Interest Litigation:

1. The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

2. Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.

3. The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.

4. The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

5. The court should be fully satisfied that substantial public interest is involved before entertaining the petition.

6. The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

7. The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

8. The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

26. In our view, in view of the aforesaid consideration, it appears that the petition has been filed with extraneous considerations which are not disclosed by the petitioner since he has tried to expose the cause of the organization behind him or the other persons. Such would lead to serious doubt about the credentials of the petitioner. Further, the correctness of the statement made at para 3 is falsified by the above referred subsequent paragraphs and the annexures produced with the petition. Therefore, it can be said that the petition is either filed with some extraneous consideration or there is no genuineness or bonafide public interest as sought to be canvassed. The petition can be termed as by a busy body for extraneous consideration.

27. Under the circumstances, the petition deserves to be dismissed and heavy cost as well as exemplary cost deserves to be imposed, and the matter can also be considered for ordering prosecution for perjury by making false statement on oath in the proceeding before this Court. But for the fact that the petition is against the High Court itself on administrative side, we have examined the questions arising in the petition in detail and by keeping gracious view, we refrain ourselves from taking stern action from imposing very heavy cost and of ordering prosecution at this stage. However, it does appear that in order to maintain the above referred principles laid down by the Apex Court in the above referred judgement in the case of State of Uttaranchal (supra), we find it proper to impose exemplary cost of Rs.20,000/- which shall be deposited by the petitioner within one month with the Registry of this Court. If the cost is not deposited within the aforesaid period, the same would be recovered as arrears of land revenue from the petitioner.

28. Hence, the petition is dismissed with cost of Rs.20,000/- as aforesaid.

(JAYANT PATEL, J.)

(J.C. UPADHYAYA, J.)

HC ask trial court to consider perjury against informant for lying

IN THE HIGH COURT OF JUDICATURE AT PATNA

Cr Misc No 4584 of 2011

Verma Prasad Kushwaha, son of Jagarnath Pd Kishwaha, resident of Shanti Nagar, Ward No 1, Narkatiaganj, P S Shikarpur, District West Champaran – Petitioner Versus

The State of Bihar – Opposite Party ———–

2 23.02.2011 The petitioner is the husband of the victim deceased lady and is in custody since 18.03.2010 in relation to Shikarpur Police Station Case No 30 of 2010 instituted under Sections 304B, 201/34 of Indian Penal Code. The first information report is by the brother of the victim lady, inter alia, alleging that the petitioner alongwith his family members were demanding dowry soon after the marriage and used to beat up the lady and ultimately burnt her to death and disposed of her body. Shri Yugesh Chandra Verma, learned Senior Counsel appearing in support of the petition draws attention of this Court to the depositions of the informant, the victim lady’s father and other depositions of the prosecution witnesses, all of whom have been declared hostile. The informant, who is the brother of the deceased, states that the lady in fact died of illness and that there was no question of the petitioner or anyone killing her and disposing of her dead body.

Considering the aforesaid facts, let the petitioner abovenamed be released on bail on his furnishing bonds of Rs 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of Fast Track Court No IV, West Champaran at Bettiah in 2

Sessions Trial No 354 of 2010 arising out of Shikarpur Police Station Case No 30 of 2010.

Before parting, I would like to notice that the trial Court may consider the desirability of instituting prosecution against the prosecution witnesses for perjury and malicious prosecution for mobilising police with a false plea. Steps should be taken expeditiously. M.E.H./ (Navaniti Prasad Singh)

SC judgement in CrPC 340 wrt Chartered Accountants Act

Bench: G Singhvi, A K Ganguly

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS._________OF 2010

(Arising out of S.L.P. (Crl.) Nos.3411-3412 of 2009)

The Institute of Chartered Accountants of India …….Appellant

Versus

Vimal Kumar Surana and another …….Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Leave granted.

2. The question which arises for consideration in these appeals is

whether the provisions contained in Sections 24, 24A and 26 of the

Chartered Accountants Act, 1949 (for short, `the Act’) operate as a bar

against the prosecution of a person who is charged with the allegations

which constitute an offence or offences under other laws including the

Indian Penal Code (IPC).

3. Respondent, Vimal Kumar Surana, who is a graduate in Commerce

and has passed the examination of Chartered Accountant but is not a 2

member of the appellant-Institute is alleged to have represented himself

before the Income Tax Department and the authorities constituted under the

Madhya Pradesh Trade Tax Act on the basis of power of attorney or as legal

representative and submitted documents such as audit reports and

certificates required to be issued by the Chartered Accountants by preparing

forged seals. He is also said to have impersonated himself as Chartered

Accountant and prepared audit reports for monetary consideration.

4. Shri Brij Kishor Saxena, who was authorised by the appellant-Institute

to do so, submitted complaint dated 18.3.2001 to the Station House Officer,

Police Station, Betul with following allegations:

“1) That the said Shri Vimal Kumar Surana is not registered with the Institute of Chartered Accountants of India as Chartered Accountants, but he being not a Chartered Accountant impersonated in the public as such, and performed such functions which are being performed by a Chartered Accountant. Whereas without being registered as Chartered Accountant, he is not legally authorized to perform the said functions before the Income Tax Department, under the provisions of Income Tax Act, 1961, he represented himself as legal representative. Similarly under Section 31 of the M.P. Trade Tax Act, 1995 he worked on the basis of Power of Attorney or as legal representative. In this manner he has worked contrary to the provision of Section 24 of the Chartered Accountants Act, 1949, which is punishable offence under section 24 of the Act.

2) That in the manner above mentioned, the said Shri Vimal Kumar Surana not being a Chartered Accountant, personated to the public as Chartered Accountant and in the same manner unauthorisedly worked, which is an offence under Section 419 of the Indian Penal Code.

3

3) That the said Shri Vimal Kumar Surana impersonated himself as the Chartered Accountant, prepared the audit reports; which are required to be issued under different provisions of law and obtained monitory consideration which is an offence under Section 420 of the Indian Penal Code.

4) That the said Shri Vimal Kumar Surana with the intention of cheating with a view to extract money by playing fraud upon the general public, prepared valuable documents such as audit reports, certificates required to be issued by Chartered Accountants for being used, which is punishable offence under Section 468 of the Indian Penal Code.

5) The said Shri Vimal Kumar Surana with a view to perform aforesaid acts prepared forged seals and used the same, which is an offence punishable under Section 472 of the Indian Penal Code. He is in possession of the seal which he uses as Chartered Accountant. Therefore, this act is punishable offence under Section 473 of the Indian Penal code.”

5. After conducting investigation, the police filed challan in the Court of

Chief Judicial Magistrate, Betul (hereinafter referred to as `the trial Court’),

who passed order dated 10.3.2003 for framing charges against the

respondent under Sections 419, 468, 471 and 472 IPC. The respondent

challenged that order by filing revision under Section 397 of the Code of

Criminal Procedure (Cr.P.C.). 1st Additional Sessions Judge, Betul allowed

the revision, set aside order dated 10.3.2003 and remitted the case to the trial

Court with the direction to decide whether there are sufficient grounds for

framing charges under Sections 419, 420, 465, 467 and 473 IPC read with

Sections 24 and 26 of the Act. After remand, the trial Court passed order

dated 8.12.2003 and held that there was no basis for framing any charge 4

against respondent under the IPC. It further held that cognizance of offences

under Sections 24 and 26 of the Act cannot be taken because no complaint

had been filed by or under the order of the Council before the Magistrate.

6. The appellant questioned the correctness of orders dated 29.10.2003

and 8.12.2003 passed by 1st Additional Sessions Judge, Betul and the trial

Court respectively by filing two separate revisions. The learned Single

Judge of the High Court dismissed both the revisions. He held that even

though prima facie case was made out against the respondent under Sections

24, 24A and 26 of the Act, the Magistrate could not have taken cognizance

because no complaint was filed under Section 28 and the report submitted by

the police could not be made basis for punishing him on the allegation of

contravention of any of those provisions. The learned Single Judge also

referred to Sections 2(d), 4, 5 and Section 195(1)(b)(ii) Cr.P.C. and held that

in the absence of a complaint filed by the concerned Court, the Magistrate

was not competent to frame charges against the respondent. The learned

Single Judge also held that in view of the special mechanism contained in

the Act for prosecution of a person violating Sections 24, 24A and 26 of the

Act, he cannot be prosecuted under the IPC.

7. Shri U.U. Lalit, learned senior counsel appearing for the appellant

argued that even though the provisions contained in Chapter VII of the Act 5

specify penalties for certain acts committed by a member of the Institute or a

non member or a company, there is no bar against prosecution of such

member, non member or company if he/it commits an offence under the

IPC. Learned senior counsel invited our attention to the expression `without

prejudice to any other proceedings, which may be taken against him’ used in

sub-section (2) of Sections 24A, 25 and 26 of the Act and argued that any

person who contravenes these provisions can be punished by levy of fine

and/or imprisonment and also prosecuted for offence(s) under the IPC.

Learned senior counsel emphasized that while enacting Chapter VII of the

Act, the legislature has designedly not excluded the applicability of the

provisions contained in the IPC and argued that the learned Single Judge

committed serious error by approving the orders of the trial Court and 1 st

Additional Sessions Judge, Betul.

8. Shri R.P. Gupta, learned senior counsel appearing for the respondent

argued that the Act is a special legislation and as specific penalties have

been provided for contravention of Section 24 and sub-section (1) of

Sections 24A, 25 and 26, the provisions contained in the IPC and Cr.P.C.

cannot be invoked for prosecuting and punishing such person. Learned

senior counsel further argued that the respondent could not have been

prosecuted for the alleged contravention of sub-section (1) of Sections 24A

and 26 of the Act because no complaint was filed against him under Section 6

28 of the Act. In support of this argument, the learned senior counsel relied

upon the judgments of this Court in Jeewan Kumar Raut v. CBI (2009) 7

SCC 526 and Jamiruddin Ansari v. CBI (2009) 6 SCC 316. Learned

counsel then submitted that this Court may not interfere with the impugned

order because the allegations levelled against the respondent do not

constitute any offence under the IPC.

9. Ms. Vibha Datta Makhija, learned counsel for the State of Madhya

Pradesh relied upon the judgment of this Court in Maqbool Hussain v. The (1953) 4 SCR 730 and T.S. Baliah v. T.S. Rangachari

State of Bombay

(1969) 3 SCR 65 and argued that the offences specified in Sections 24 to 26

are distinct from the offences defined under Sections 419, 420, 465, 467,

468, 472 and 473 IPC and even if the complaint submitted by Brij Kishor

Saxena cannot be treated as a complaint filed under Section 28 of the Act,

his prosecution for offences defined under the IPC cannot be treated as

barred.

10. The Chartered Accountants Act was enacted by Parliament to make

provision for regulation of the profession of Chartered Accountants.

Chapter I of the Act contains definitions of various terms. Chapter II

contains provisions relating to incorporation of the Institute, entry of names

in the Register, categorisation of the members of the Institute and certificate 7

of practice. Section 7 which also finds place in this Chapter declares that

every member of the Institute in practice shall, and any other member may,

use the designation of a chartered accountant and no member using such

designation shall use any other description, whether in addition thereto or

in substitution therefor. Section 8 enumerates the disabilities which

disentitles a person to have his name entered in the Register. Section 9(1)

which finds place in Chapter III postulates that there shall be a Council of

the Institute for the management of the affairs of the Institute and for

discharging the functions assigned to it. The other provisions contained in

Chapter III regulate constitution of the Council of the Institute,

establishment of Tribunal and their functions, etc. The provisions contained

in Chapter IV mandates the Council to maintain a Register of the members

of the Institute, inclusion of the particulars of the members and removal of

the name of any member of the Institute from the Register. Chapter V

consists of thirteen sections i.e. Sections 21 to 22G. Section 21(1) postulates

establishment of a Disciplinary Directorate by the Council headed by an

officer of the Institute designated as Director (Discipline). The main

function of the Director (Discipline) is to scrutinize any information or

complaint received against any member and place the same before the

Disciplinary Committee. Sections 21A, 21B and 22A provide for

constitution of a Board of Discipline, a Disciplinary Committee and an

Appellate Authority. The main function of these bodies is to ensure that 8

expeditious action is taken against the members against whom allegations of

misconduct are levelled and he gets fair opportunity to contest those

allegations. An order passed by the Disciplinary Committee can be appealed

against under Section 22G. Section 23 which finds place in Chapter VI

provides for constitution and functions of Regional Councils. Chapter VII

specifies the penalties, which can be imposed on a member, a non member

and a company. Chapter VIIA contains provisions for establishment of

Quality Review Board, functions of the Board, etc. and Chapter VIII

contains miscellaneous provisions. Schedules I and II appended to the Act

specify various acts of misconduct of a chartered accountant in practice.

These Schedules obviously do not enumerate the wrong doings of a person

who is not a member of the Institute.

11. Sections 2(1) (b), 24, 24A, 25, 26 and 28 of the Act, which have

bearing on this case, read as under:

“2. Interpretation

(1) In this Act, unless there is anything repugnant in the subject or context,-

(b) “chartered accountant” means a person who is a member of the Institute.

24. Penalty for falsely claiming to be a member, etc.

Any person who -

(i) not being a member of the Institute -

9

(a) represents that he is a member of the Institute; or

(b) uses the designation Chartered Accountant; or

(ii) being a member of the Institute, but not having a certificate of practice, represents that he is in practice or practises as a chartered accountant, shall be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees, or with both.

24A. Penalty for using name of the Council, awarding degree of chartered accountancy, etc.

(1) Save as otherwise provided in this Act, no person shall-

(i) use a name or the common seal which is identical with the name or the common seal of the Institute or so nearly resembles it as to deceive or as is likely to deceive the public;

(ii) award any degree, diploma or certificate or bestow any designation which indicates or purports to indicate the position or attainment of any qualification or competence similar to that of a member of the Institute; or

(iii) seek to regulate in any manner whatsoever the profession of chartered accountants.

(2) Any person contravening the provisions of subsection (1) shall, without prejudice to any other proceedings which may be taken against him, be punishable with fine which may extend on first conviction to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

25. Companies not to engage in accountancy

10

(1) No company, whether incorporated in India or elsewhere, shall practise as chartered accountants.

(2) If any company contravenes the provisions of sub-section (i), then, without prejudice to any other proceedings which may be taken against the company, every director, manager, secretary and any other officer thereof who is knowingly a party to such contravention shall be punishable with fine which may extend on first conviction to one thousand rupees, and on any subsequent conviction to five thousand rupees.

26. Unqualified persons not to sign documents

(1) No person other than a member of the Institute shall sign any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity.

(2) Any person who contravenes the provisions of sub- section (1) shall, without prejudice to any other proceedings, which may be taken against him, be punishable on first conviction with a fine not less than five thousand rupees but which may extend to one lakh rupees, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to one year or with fine not less ten thousand rupees but which may extend to two lakh rupees or with both.

28. Sanction to prosecute

No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government.”

Sections 2(d), 4, 5 and 195 Cr.P.C. on which reliance has been placed

by learned senior counsel for the respondent read as under:

“2(d). “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 11

Explanation. – A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

4. Trial of offences under the Indian Penal Code and other laws. – (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into tried, and otherwise dealt with according to the provision hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5. Saving. – Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit, such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to 12

have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii),

except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that-

13

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”

12. An analysis of Section 24 shows that if a person who is not a member

of the Institute represents himself as a member of the Institute or uses the

designation of chartered accountant then he is liable to be punished on first

conviction with fine which may extend to Rs.1,000/-. On any subsequent

conviction, he can be punished with imprisonment up to 6 months or fine

which may extend to Rs.5,000/- or with both. Similar punishment can be

imposed on a member of the Institute who does not have a certificate of

practice but represents that he is in practice or practises as a chartered

accountant. Sub-section (2) of Sections 24A, 25 and 26 provide for

imposition of different kinds of punishment for violation of the provisions

contained in sub-section (1) of those sections. The punishment prescribed

under Section 24A can be imposed if a person uses a name or the common

seal which is identical with the name or the common seal of the Institute or

is almost similar to such seal and the use of such seal has the effect of

deceiving or is likely to deceive the public. A person can also be punished if

he awards any degree, diploma or certificate or bestow any designation 14

which indicates or purports to indicate position or attainment of any

qualification or competence at par with a member of the Institute or if he

seeks to regulate the profession of chartered accountants. Section 26

provides for imposition of punishment if a person other than a member of

the Institute signs any document on behalf of a chartered accountant in

practice or a firm of such chartered accountants in his or its professional

capacity. Section 28 which is couched in negative form declares that no

person shall be prosecuted under the Act except on a complaint made by or

under the order of the Council or of the Central Government.

13. What is most significant to note is that prohibition contained in

Section 28 against prosecution of a person except on a complaint made by or

under the order of the Council or of the Central Government is attracted only

when such person is sought to be prosecuted for contravention of the

provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or

26 and not for any act or omission which constitutes an offence under the

IPC. The use of expression `without prejudice to any other proceedings

which may be taken against him’ in sub-section (2) of Sections 24A and 26

and somewhat similar expression in sub-section (2) of Section 25 show that

contravention of the provisions contained in sub-section (1) of those sections

can lead to filing of complaint under Section 28 of the Act and if the

particular act also amounts an offence under the IPC or any other law, then a 15

complaint can also be filed under Section 200 Cr.P.C. or a first information

report lodged with the police under Section 156 Cr.P.C. The said expression

cannot be given a restricted meaning in the context of professional and other

misconducts which may be committed by a member of the Institute and for

which he may be punished under Section 21B(3) because the violation of

Sections 24 to 26 can be committed by a person who may or may not be a

chartered accountant as defined in Section 2(b). In other words, if the

particular act of a member of the Institute or a non member or a company

results in contravention of the provisions contained in Section 24 or sub-

section (1) of Sections 24A, 25 or 26 and such act also amounts criminal

misconduct which is defined as an offence under the IPC, then a complaint

can be filed by or under the order of the Council or of the Central

Government under Section 28, which may ultimately result in imposition of

the punishment prescribed under Section 24 or sub-section (2) of Sections

24A, 25 or 26 and such member or non member or company can also be

prosecuted for any identified offence under the IPC. The object underlying

the prohibition contained in Section 28 is to protect the persons engaged in

profession of chartered accountants against false and untenable complaints

from dissatisfied litigants and others. However, there is nothing in the

language of the provisions contained in Chapter VII from which it can be

inferred that Parliament wanted to confer immunity upon the members and

non members from prosecution and punishment if the action of such 16

member or non member amounts to an offence under the IPC or any other

law.

14. The issue deserves to be considered from another angle. If a person

cheats by pretending to be some other person, or by knowingly substituting

one person for another, or representing that he or any other person is a

person other than he or such other person really is (Section 416 IPC), then

he can be charged with the allegation of cheating by personation and

punished under Section 419 for a term which may extend to 3 years or with

fine or both. If a person makes any false document with the intent to cause

damage or injury to the public or to any person, or to support any claim or

title, then he can be prosecuted for an offence of forgery (Section 463) and

can be punished under Section 465 with imprisonment which may extend to

2 years or with fine or with both. If a person commits forgery for the

purpose of intending that the document forged by him shall be used for the

purpose of cheating then he can be punished with imprisonment for a term

which may extend to 7 years and fine (Section 468). If a person makes or

counterfeits any seal, plate or other instrument for making an impression,

intending that the same shall be used for committing any forgery which

would be punishable under Section 467 or with such intent, in his possession

any such seal, plate or other instrument, knowing the same to be counterfeit

then he is liable to be punished with imprisonment for life or with 17

imprisonment which may extend to 7 years. He shall also be liable to fine.

The provisions contained in Chapter VII of the Act neither define cheating

by personation or forgery or counterfeiting of seal, etc. nor provide for

punishment for such offences. If it is held that a person acting in violation

of Section 24 or contravening sub-section (1) of Sections 24A and 26 of the

Act can be punished only under the Act even though his act also amounts to

one or more offence(s) defined under the IPC and that too on a complaint

made in accordance with Section 28, then the provisions of Chapter VII will

become discriminatory and may have to be struck down on the ground of

violation of Article 14. Such an unintended consequence can be and

deserves to be avoided in interpreting Sections 24A, 25 and 26 keeping in

view the settled law that if there are two possible constructions of a statute,

then the one which leads to anomaly or absurdity and makes the statute

vulnerable to the attack of unconstitutionality should be avoided in

preference to the other which makes it rational and immune from the charge

of unconstitutionality. That apart, the Court cannot interpret the provisions

of the Act in a manner which will deprive the victim of the offences defined

in Sections 416, 463, 464, 468 and 471 of his right to prosecute the wrong

doer by filing the first information report or complaint under the relevant

provisions of Cr.P.C.

18

15. We may add that the respondent could have been simultaneously

prosecuted for contravention of Sections 24, 24A and 26 of the Act and for

the offences defined under the IPC but in view of the bar contained in

Article 20(2) of the Constitution read with Section 26 of the General Clauses

Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice

for the same offence. In Maqbool Hussain v. The State of Bombay

(supra), the Court considered the question whether the appellant who had

brought gold from Jeddah in contravention of notification dated 25.8.1948

could have been prosecuted under Section 8 of the Foreign Exchange

Regulation Act, 1947 after the gold had been confiscated by the authorities

of the Customs Department under Section 167(8) of the Sea Customs Act,

1878. The appellant challenged his prosecution by contending that this

amounted to infringement of his fundamental right under Article 20(2) of the

Constitution. The Bombay High Court negatived his challenge. This Court

upheld the order of the High Court and observed:

“There is no doubt that the act which constitutes an offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same viz. importing the gold in contravention of the notification of the Government of India dated 25th August, 1948. The appellant could be proceeded against under Section 167(8) of the Sea Customs Act as also under Section 23 of the Foreign Exchange Regulation Act in respect of the said act.

The fundamental right which is guaranteed in Article 20(2) enunciates the principle of “autrefois convict” or “double jeopardy”. The roots of that principle are to be found in the well established rule of the common law of England “that where a 19

person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence”. (Per Charles, J. in Reg v. Miles). To the same effect is the ancient maxim “Nemo bis debet puniri pro uno delicto”, that is to say that no one ought to be twice punished for one offence or as it is sometimes written “pro eadem causa”, that is, for the same cause.

This is the principle on which the party pursued has available to him the plea of “autrefois convict” or “autrefois acquit”. “The plea of `autrefois convict’ or `autrefois acquit’ avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned…. The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of `autrefois acquit’ is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.” (Vide Halsbury’s Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212).

This principle found recognition in Section 26 of the General Clauses Act, 1897,–

`Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,’

and also in Section 403(1) of the Criminal Procedure Code, 1898, –

`A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been 20

made under Section 236, or for which he might have been convicted under Section 237′.”

The Court then referred to the provisions of the Sea Customs Act, 1878 and

held:

“We are of the opinion that the Sea Customs authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy.

It therefore follows that when the Customs authorities confiscated the gold in question neither the proceedings taken before the Sea Customs authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs authorities to have been “prosecuted and punished” for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under Section 23 of the Foreign Exchange Regulation Act.”

16. In T.S. Baliah’s case, the Court considered the question whether the

appellant could be simultaneously prosecuted under Section 177 IPC and for

violation of Section 52 of the Income Tax Act, 1922. After noticing Section

26 of the General Clauses Act, the Court held:

“A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be 21

punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case.”

17. In State of Bombay v. S.L. Apte (1961) 3 SCR 107, the question

that fell for consideration was whether in view of an earlier conviction

and sentence under Section 409 IPC, a subsequent prosecution for an

offence under Section 105 of Insurance Act, 1935, was barred by Section

26 of the General Clauses Act and Article 20(2) of the Constitution. This

Court answered the question in following words:

“To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the same offence’. The crucial requirement therefore for attracting the article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. . . .

… Though Section 26 in its opening words refers to `the act or omission constituting an offence under two or more enactments’, the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to `shall not be liable to be punished twice for the same offence’. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.”

18. In V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467, this

Court considered the question whether the acquittal of an accused 22

charged with having committed an offence punishable under Section 111

read with Section 135 of the Customs Act, 1962 create a legal bar to the

subsequent prosecution of the said accused under Section 85 of the Gold

(Control) Act, 1968. The Gujarat High Court answered the question in

affirmative. This Court reversed the order of the High Court and

observed:

“It is therefore evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold (Control) Act. In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender. On the other hand in respect of the offence under the Gold (Control) Act, it is required to be established that the offender was in possession of primary gold meaning thereby gold of a purity of not less than 9 carats in any unfinished or semi-finished form. In regard to the latter offence it is not necessary to establish that there is any prohibition against the import of gold into Indian sea waters. Mere possession of gold of purity not less than 9 carats in any unfinished or semi-finished form would be an offence under the Gold Control Act. It is therefore stating the obvious to say that the ingredients of the two offences are altogether different. Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold (Control) Act.

………In the present case the concerned Respondents could be found guilty of both the offences in the context of the possession of gold. If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to 23

believe was liable to confiscation he would be guilty of that offence. He would also be guilty of an offence under the Gold (Control) Act provided the gold is of a purity of at least 9 carats. He would have violated the provisions of “both” the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established. It is not as if in case he was found guilty of an offence under the Customs Act, he could not have been found guilty under the Gold (Control) Act or vice versa. Upon being found guilty of both the offences the court may perhaps impose a concurrent sentence in respect of both the offences but the court has also the power to direct that the sentence shall run consecutively. There is therefore no question of framing of an alternative charge one, under the Customs Act, and the other, under the Gold (Control) Act. If the ingredients of both the offences are satisfied the same act of possession of the gold would constitute an offence both under the Customs Act as also under the Gold (Control) Act. Such being the position it cannot be said that they could have been tried on the same facts for an alternative charge in the context of Section 236 Cr.P.C. at the time of the former proceedings. The submission urged in the context of Section 403(1) cannot therefore succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tried on the same facts at the former trial under Section 236.”

19. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655, the

question considered by the Court was whether the complaint lodged by

the competent officer alleging commission of offence under Section 9(1)

read with Section 51 for killing elephants and removing its husk was

maintainable notwithstanding the pendency of police investigation for an

offence under Sections 447, 429 and 479 read with Sections 54 and 39 of

the Act. After adverting to the relevant provisions, this Court held: 24

“What emerges from a perusal of these provisions is that cognizance of an offence under the “Act” can be taken by a court only on the complaint of the officer mentioned in Section 55. The person who lodged complaint dated June 23, 1986 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210(1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognizance more than once and, accordingly, Section 210 has no role to play. The view taken by the High Court on the footing of Section 210 is unsupportable.

We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of Section 429 IPC on the one hand and Section 9(1) read with Section 50(1) of the Act on the other and therefore constitutes the same offence. Apart from the fact that this argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression “any act or omission which constitutes any offence under this Act” in Section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also.

The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutary principles that permeate penology and reflected in analogous provisions of Section 26 of General Clauses Act, 1897; Section 71 IPC; Section 300 CrPC 1973, and constitutionally guaranteed 25

under Article 20(2) of the Constitution. Section 26 of the General Clauses Act, 1897 provides:

“26. Provision as to offences punishable under two or more enactments.–Where an act or omission

constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re- prosecution after acquittal, a protection against re- prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by “same offence”. The principle in American law is stated thus:

“The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee.

Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if `each provision requires proof of an additional fact which the other does not’ (Blockburger v. United States). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. (Jeffers v. United States)”

The expression “the same offence”, “substantially the same offence” “in effect the same offence” or “practically the same”, have not done much to lessen the difficulty in 26

applying the tests to identify the legal common denominators of “same offence”. Friedland in Double Jeopardy (Oxford 1969) says at p. 108:

“The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are `substantially the same’ may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible….”

In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: (SCR p. 827)

“The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.”

20. In State of Rajasthan v. Hat Singh (2003) 2 SCC 152, the Court

considered the question whether the High Court was right in taking the

view that the respondent could have been prosecuted either under Section

5 or Section 6(3) of the Rajasthan Sati (Prevention) Act, 1987 and not

under both the sections. The High Court had ruled in favour of the 27

respondent. This Court reversed the judgment of the High Court, referred

to Article 20(2) of the Constitution, the judgments in Maqbool Hussain (supra), State of Bombay v. S.L. Apte (supra)

v. The State of Bombay

and observed:

“The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides:

“26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Section 300 CrPC provides, inter alia,–

“300. (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such

conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-

section (2) thereof.”

Both the provisions employ the expression “same offence”.” 28

The Court then proceeded to analyze the relevant sections of the

Act and held that the offences under Sections 5 and 6(3) of the Act were

distinct and there was no bar against prosecution of the respondent under

Section 5 even though his prosecution under Section 6(3) had failed.

21. In view of the above discussion, the argument of the learned senior

counsel appearing for the respondent that the Act is a special legislation vis-

`-vis IPC and a person who is said to have contravened the provisions of

sub-section (1) of Sections 24, 24A, 25 and 26 cannot be prosecuted for an

offence defined under the IPC, which found favour with the High Court does

not commend acceptance.

22. The judgments on which the learned senior counsel appearing for the

respondent has placed reliance are clearly distinguishable. In Jamiruddin

Ansari v. C.B.I. (supra), this Court was called upon to consider whether an

order for investigation could be passed under Section 156(3) Cr.P.C. in a

case involving violation of the provisions contained in the Maharashtra

Control of Organised Crime Act, 1999. This Court referred to the provisions

of Sections 9 and 23 of the Maharashtra Act and held that the Special Judge

cannot take cognizance of any offence under that Act unless sanction has

been given by a police officer not below the rank of Additional Director

General of Police. The Court further held that the provisions contained in 29

the Maharashtra Act have overriding effect and Section 156(3) cannot be

invoked for ordering special inquiry on a private complaint. Paragraphs 65

(part), 67 and 68 of the judgment, which contain this conclusion, reads as

under:

“The wording of sub-section (2) of Section 23 leaves no room for doubt that the learned Special Judge cannot take cognizance of any offence under MCOCA unless sanction has been previously given by the police officer mentioned hereinabove. In such a situation, even as far as a private complaint is concerned, sanction has to be obtained from the police officer not below the rank of Additional Director General of Police, before the Special Judge can take cognizance of such complaint.

We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Criminal Procedure Code and the learned Special Judge would not, therefore, be entitled to invoke the provisions of Section 156(3) CrPC for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in Section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organised crime under MCOCA cognizance cannot be taken by the Special Judge without due compliance with sub-section (1) of Section 23, which starts with a non obstante clause.

As indicated hereinabove, the provisions of Section 23 are the safeguards provided against the invocation of the provisions of the Act which are extremely stringent and far removed from the provisions of the general criminal law. If, as submitted on behalf of some of the respondents, it is accepted that a private complaint under Section 9(1) is not subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison d’jtre. At the same time, since the filing of a private complaint is also contemplated under Section 9(1) of MCOCA, for it to be entertained it has also to be subject to the rigours of Section 23. Accordingly, in view of 30

the bar imposed under sub-section (2) of Section 23 of the Act, the learned Special Judge is precluded from taking cognizance on a private complaint upon a separate inquiry under Section 156(3) CrPC. The bar of Section 23(2) continues to remain in respect of complaints, either of a private nature or on a police report.”

The question which fell for consideration in Jeewan Kumar Raut v. C.B.I.

(supra) was whether the Transplantation of Human Organs Act, 1994 (for

short, `the 1994 Act’) is a special law and has overriding effect qua the

provisions of the IPC. This Court referred to Sections 18, 19 and 22 of the

1994 Act and observed:

“TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences.

TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an authorised officer. Nobody else could do it. For the aforementioned reasons, the officer in charge of Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority.

Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. The 31

respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, sub-section (2) of Section 167 of the Code was not attracted.

It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed. In a situation of this nature, the respondent could carry out investigations in exercise of its authorisation under Section 13(3)(iv) of TOHO. While doing so, it could exercise such powers which are otherwise vested in it. But, as it could not file a police report but a complaint petition only; sub-section (2) of Section 167 of the Code may not be applicable.”

23. The language of the provisions, which were interpreted in the above

noted two judgments was not similar to sub-section (2) of Sections 24A, 25

and 26 of the Act which, as mentioned above, contain the expression

`without prejudice to any other proceedings, which may be taken’.

Therefore, the ratio of those judgments cannot be relied upon for sustaining

the impugned order.

24. It is also apposite to mention that except the provision contained in

Section 28 against the prosecution of a person, who is alleged to have acted

in contravention of sub-section (1) of Sections 24, 24A, 25 or 26 otherwise 32

then on a complaint made by or under the order of the Council or the Central

Government, the Act does not specify the procedure to be followed for

punishing such person. In the absence of any such provision, the procedure

prescribed in Cr.P.C. has to be followed for inquiry, investigation and trial

of the complaint which may be filed for contravention of any of the

provisions contained in Chapter VII of the Act – Section 4 Cr.P.C.

25. The submission of Shri Gupta that the respondent cannot be

prosecuted for offences defined under the IPC because no complaint had

been filed against him by the concerned Court or authority as per the

requirement of Section 195(1)(b)(ii) Cr.P.C. sounds attractive but lacks

merit. The prohibition contained in Section 195 Cr.P.C. against taking of

cognizance by the Court except on a complaint in writing made by the

concerned Court before which the document is produced or given in a

proceeding is not attracted in the case like the present one because the

officers of the Income Tax Department and the authorities constituted under

the Madhya Pradesh Trade Tax Act, 1995 before whom the respondent is

alleged to have acted on the basis of power of attorney or as legal

representative or produced audit report do not fall within the ambit of the

term `Court’ as defined in Section 195(3) Cr.P.C. Such officer/authorities

were neither discharging the functions of a Civil, Revenue or Criminal Court

nor they could be treated as tribunal constituted by or under the Central or 33

State Act, which is declared to be a Court for the purpose of Section 195.

This provision was analysed and interpreted by the Constitution Bench in

Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370. The

Constitution Bench referred to other provisions of Cr.P.C. and considered

earlier judgments and observed:

“The scheme of the statutory provision may now be examined. Broadly, Section 195 CrPC deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is — “Of Contempts of the Lawful Authority of Public Servants”. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as — “Of False Evidence and Offences Against Public Justice”. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression “when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court” occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier 34

and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court.

Section 195(1) mandates a complaint in writing to the court for taking cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341 CrPC which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is — “Provisions as to Offences Affecting the Administration of Justice”. Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the sections which follow them than might be afforded by a mere preamble. (See Craies on Statute Law, 7th Edn., pp.207, 209.) The fact that the procedure for filing a complaint by court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer to the legislative intent that the offence committed should be of such type which directly affects the administration of justice viz. which is committed after the document is produced or given in evidence in court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in court cannot, strictly speaking, be said to be an offence affecting the administration of justice.”

35

The Court then referred to Section 195 of the Code of Criminal

Procedure, 1898, the Full Bench judgment of the Allahabad High Court in

Emperor v. Kushal Pal Singh AIR 1931 Allahabad 443 and observed:

“The Court clearly rejected any construction being placed on the provision by which a document forged before the commencement of the proceeding in which it may happen to be used in evidence later on, to come within the purview of Section 195, as that would unreasonably restrict the right to initiate prosecution possessed by a person and recognised by Section 190 CrPC.

The aforesaid decision was considered in Raghunath v. State of U.P. Here, the accused had obtained sale deed of the property of a widow by setting up of an impostor and thereafter filed a mutation application before the Tahsildar. The widow contested the mutation application on the ground that she had never executed the sale deed and thereafter filed a criminal complaint under Sections 465, 468 and 471 IPC in which the accused were convicted. In appeal, it was contended that the private complaint was barred by virtue of Section 195(1)(c) CrPC and the Revenue Court alone could have filed the complaint. The Court repelled the aforesaid contention after relying upon the ratio of Patel Laljibhai v. State of Gujarat and the private complaint was held to be maintainable. In Mohan Lal v. State of Rajasthan the abovenoted two decisions were relied upon for holding that provisions of Section 195(1)(c) (old Code) would not be applicable where mutation proceedings were commenced after a Will had been forged. In Legal Remembrancer, Govt. of W.B. v. Haridas Mundra, Bhagwati, J. (as His Lordship then was), speaking for a three-Judge Bench observed that earlier there was divergence of opinion in various High Courts, but the same was set at rest by this Court in Patel Laljibhai Somabhai and approved the view taken therein that the words of Section 195(1)(c) clearly meant the offence alleged to have been committed by a party to the proceeding in his character as such party i.e. after having become a party to the proceeding, and Sections 195(1)(c), 476 and 476-A (of the old Code) read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) to the offences mentioned in the said section when 36

committed by a party to a proceeding prior to his becoming such party. Similar view has been taken in Mahadev Bapuji Mahajan v. State of Maharashtra where the contention that the absence of a complaint by the Revenue Court was a bar to taking cognizance by the criminal court in respect of offences under Sections 446, 468, 471 read with Section 120-B IPC which were committed even before the start of the proceedings before the Revenue Court, was not accepted.

An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.”

The attention of the High Court does not appear to have been invited to the

aforesaid judgment of the Constitution Bench and this is the reason that the

High Court declared that the complaint filed by Brij Kishor Saxena was not

maintainable because the same was not filed in accordance with Section

195(1)(b)(ii) Cr.P.C.

26. Although, Shri Gupta argued that the allegations levelled against the

respondent do not constitute any offence under Sections 419, 420, 465, 467,

468, 472 and 473 IPC, we do not consider it necessary to deal with this point 37

because the High Court did not sustain the orders challenged before it on

that ground.

27. In the result, the appeals are allowed. The impugned order is set aside

and the matter is remitted to the trial Court for considering whether the

allegations contained in the complaint lodged by Brij Kishor Saxena

constitute any offence under the IPC. If the trial Court comes to the

conclusion that the allegations do constitute one or more offence(s), then it

shall proceed against the respondent in accordance with law. However, it is

made clear that in the absence of a complaint having been filed under

Section 28, no charges be framed against the respondent for the alleged

contravention of Sections 24, 24A or 26 of the Act.

……………………………J.

[G.S. Singhvi]

………………………..

…..J.

[Asok Kumar Ganguly]

New Delhi

December 01, 2010.

CrPC 340 Perjury: Court doing preliminary inquiry cannot pass final order

Court No.27

Criminal Misc. Application No.30509 of 2009

Garima Srivastava Vs. State of U.P. and another

Hon. A.K. Roopanwal, J.

In this petition orders dated 15.7.09 and 7.10.09 passed by the Principal Judge, Family Court, Allahabad have been challenged.

It appears from the record that in a divorce case an application was moved by the husband that the lady had wrongly filed an affidavit that she is not serving in Delhi Public School, Arail, Naini, District Allahabad and therefore, action be taken against her. The lady was ready for inquiry in the matter and the court vide order dated 21.11.06 ordered that the inquiry be made in the matter and the defaulter be punished with a fine of Rs.10,000/-. Subsequent thereto the report from the college was obtained and it was reported by the college that the version of the lady was wrong. In such situation, the court vide order dated 15.7.09 imposed a fine of Rs.10,000/- upon the lady (applicant). By the order dated 7.10.09 the objections filed by the applicant against the maintainability of the proceedings under Section 340, Cr.P.C. instituted by the husband were rejected. Heard Mr. A.N. Tripathi, learned counsel for the applicant, learned AGA and perused the record.

It has been argued by Mr. Tripathi that under the provisions of Section 340, Cr.P.C. the court can make only preliminary inquiry and the final order which may be in the form of imposing fine can be passed by the court of competent jurisdiction and the court of competent jurisdiction would be that court in which the complaint would be filed by the court in which the perjury was committed. The court which made the preliminary inquiry had no jurisdiction to finally conclude the matter and impose the fine, therefore, the order dated 15.7.09 is bad and is liable to be quashed. Regarding the order dated 7.10.09 it was argued by Mr. Tripathi that once a wrong order was passed by the court on 15.7.09 it should have been reviewed and when it was not reviewed, hence, the order dated 7.10.09 is also bad and is liable to be quashed.

So far as the order dated 15.7.09 is concerned, in that regard I am of the view that the matter is liable to be taken further for hearing as there is some substance in the argument advanced by Mr. Tripathi. So far as the argument regarding the order dated 7.10.09 is concerned, in that regard it has been argued by Mr. Tripathi that the court cannot initiate dual proceedings. Once the matter was concluded vide order dated 15.7.09 there could be no propriety at all to continue the proceedings under Section 340, Cr.P.C. Issue notice to O.P. No.2 to file counter affidavit within 2 weeks’. Rejoinder affidavit, if any, may be filed within 1 week thereafter.

Till then, operation of the orders dated 15.7.09 and 7.10.09 passed by the Principal Judge Family Court, Allahabad in misc. case no.2 of 2008, Rajesh Kumar Srivastava Vs. Garima Srivastava, under Section 340, Cr.P.C. shall remain stayed. Dated:19.1.2010/T. Sinha.

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http://indiankanoon.org/doc/1431951/

Petitioner aggreed for perjury – Gujrat HC told to deposit 25K as probable fine

SCA/9161/2010 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 9161 of 2010

======================================

BABUBHAI MERVANBHAI PATEL – Petitioner

Versus

STATE OF GUJARAT THROUGH SECRETARY & 1 – Respondents

====================================== Appearance : MR M.B.GANDHI FOR MR NAYAN D PAREKH for the Petitioner. MR M.R.MENGDEY, AGP for Respondent(s) : 1, None for Respondent(s) : 2,

======================================

CORAM :

HONOURABLE MR.JUSTICE M.R. SHAH

Date : 18/08/2010

ORAL ORDER

In response to the Notice issued by this Court, the petitioner is personally present in the Court and Mr.M.B.Gandhi, learned advocate has appeared for him. The petitioner has tendered unconditional apology and has requested to pardon him as he is senior citizen. He has admitted the guilt, however, he has requested not to initiate any proceedings for perjury. He has submitted that he is ready and willing to pay fine/heavy cost, which may be quantified by this Court.

Before considering as to whether the unconditional apology should be accepted or not, let the petitioner deposit an amount of Rs.25,000/- (Rupees Twenty Five Thousands only) as probable fine/cost with the Registry of this Court on or before 23/08/2010 in lieu of initiation of proceedings of perjury and for making false statement before this Court on affidavit. Only thereafter, request of the petitioner to pardon him and/or as to whether to accept his unconditional apology or not, shall be considered.

S.O. to 23/08/2010. To be placed in 11:00 a.m. board.

[M.R.SHAH,J]

*dipti

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http://indiankanoon.org/doc/112965/

No one should indulge in immoral acts like perjury, prevarication and motivated falsehoods : 2 weeks Jail

Bench: H B.L.

PETITIONER:

CHANDRA SHASHI

Vs.

RESPONDENT:

ANIL KUMAR VERMA

DATE OF JUDGMENT14/11/1994

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

KULDIP SINGH (J)

CITATION:

1995 SCC (1) 421 JT 1994 (7) 459

1994 SCALE (4)944

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by

B.L. HANSARIA, J.- The stream of administration of justice has to remain unpolluted so that purity of court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, 424

required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. 2.Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.

3.These prefatory remarks well project the importance of the point under consideration in this suo motu contempt action taken against respondent Anil Kumar for his having filed a fabricated document to oppose the prayer of his wife seeking transfer of a matrimonial proceeding from Delhi to Unnao. It shall be first required to be seen whether Anil did file a fabricated document and then we shall address ourselves as to whether filing of a forged document with intention to defraud amounts to contempt of court, as this expression has been defined in Section 2 of the Contempt of Courts Act, 1971 (the Act).

4.Insofar as the first aspect is concerned, we entertain no doubt, as the case put by Anil contemner in his show- cause that the Experience Certificate dated 4-3-1993 purportedly from the Principal, V.S.S.M. Inter College, Moti Nagar, Unnao, had been signed by Khem Chandra, the Principal, is not acceptable on the face of the affidavit of the Principal himself, according to whom, the certificate is a “forged and fabricated document”. The averments in the show-cause filed by Anil, after issuance of contempt notice, that he had contacted one A.K. Mathur, working as Additional General Manager in Ordnance Factory at Kanpur, who in turn spoke to one V.K. Upadhyay, Manager of the Armapur Gas Agency at Kanpur, who ultimately obtained the certificate, have nothing to commend inasmuch as the contemner has not been successful, despite opportunity having been given, to produce any supporting material either from Shri Mathur or Shri Upadhyay. The further statement in the show-cause that three other teachers of the College used to sign in the name and as Khem Chandra and that Shri Khem Chandra, the Principal himself, signed in different styles has really made the matter worse. These averments made in the show- cause do not merit acceptance and we entertain no doubt that Anil had filed a forged and fabricated document to resist the prayer of his wife to get the matrimonial proceeding transferred on the ground of her poverty i.e. it was done with an oblique motive.

5.The real question is whether filing of the aforesaid forged and fabricated document amounts to contempt. According to Shri Gangull, appearing for Anil Kumar, this does not. Let it be seen whether the contention advanced by Shri Ganguli is tenable.

6.In Section 2(a) of the Act “contempt of court” has been said to mean civil contempt or criminal contempt. The latter expression has been defined in Section 2(c) to mean the publication of a matter which, inter alia, 425

interferes or tends to interfere with due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice.

7.There being no decision of this Court (or for that matter of any High Court) to our knowledge on this point, the same is required to be examined as a matter of first principle. Contempt jurisdiction has been conferred on superior courts not only to preserve the majesty of law by taking appropriate action against one howsoever high he may be, if he violates court’s order, but also to keep the stream of justice clear and pure (which was highlighted more than two and half centuries ago by Lord Hardwicke, L.C. in St. James’s Evening Post case) so that the parties who approach the courts to receive justice do not have to wade through dirty and polluted water before entering their temples. The purpose of contempt jurisdiction was summarised as below by Lord Morris in Attorney General v. Times Newspapers Ltd.2:

.LM15

“In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted.”

8. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that (truth alone triumphs) is an achievable aim there; or (it is virtue which ends in victory) is not only inscribed in emblem but really happens in the portals of courts.

9. The aforesaid thoughts receive due support from the definition of criminal contempt as given in Section 2(c) of the Act, according to which an act would amount be so if, inter alia, the same interferes or tends to interfere, or obstructs or tends to obstruct the administration of justice. The word ‘interfere’, means in the context of the subject, any action which checks or hampers the functioning or hinders or tends to prevent the performance of duty, as stated at p. 255 of Words and Phrases (Permanent Edn.), Vol.

22. As per what has been stated in the aforesaid work at p. 147 of Vol. 29 obstruction of justice is to interpose obstacles or impediments, or to hinder, impede or in any manner interrupt or prevent the administration of justice. 1 (1742) 2 Atk 469: 26 ER 683

2_ 1974 AC 273, 302: (1973) 3 All ER 54, 66: (1973) 3 WLR 298

426

Now, if recourse to falsehood is taken with oblique motive, the same would definitely hinder, hamper or impede even flow of justice and would prevent the courts from performing their legal duties as they are supposed to do.

10. A reference to standard textbooks on contempt, to wit, C.J. Miller’s Contempt of Court; Oswald’s Contempt of Court; and Anthony Arlidge & David Eady’s The Law of Contempt would amply bear what has been stated above; and that if a forged and fabricated document is filed, the same may amount to interference with the administration of justice. Of course, for the act to take this colour there is required to be an element of deceit or the knowledge of the statement being forged or fabricated. This is what finds place at pages 399 to 401 (2nd Edn.); page 62 (1993 Reprint); and pages 186 and 188 (1982 Edn.) respectively of the aforesaid treatises.

11. These statements are based on some important decided cases. It would be enough for our purpose to note two such decisions, one of which is by the Privy Council and the other by a King’s Bench Division.

12. In the Privy Council case titled Moses Amado Taylor, Re3 which was on appeal from the Supreme Court of Sierra Leone, what had happened was that the appellant, a barrister, who had enrolled as solicitor of the Supreme Court of the said Colony, applied to the Acting Chief Justice for a warrant for the arrest of one Wright on the ground that he was about to leave the settlement, despite his owing some money to his client. This prayer was rejected. Subsequently, an application was made to one of the police magistrates for a warrant for the arrest of the same person upon a criminal charge of assault and a warrant was issued accordingly. As the Acting Chief Justice had earlier refused the warrant, the Supreme Court felt that the entire proceeding initiated by the appellant was an abuse to the process of justice and it was held that the appellant, by initiating the criminal proceedings, was influenced by the intention of defying the Acting Chief Justice who refused the civil warrant of arrest; and being of this view the appellant was held guilty of contempt and his name was ordered to be removed from the roll of barristers and solicitors of the Supreme Court in question, apart from being fined. On appeal being preferred to the Privy Council, it was held that as the evidence did not show any intent to defraud on the part of the appellant no contempt was committed; at the most he had committed an irregularity for which some pecuniary penalty was adequate punishment. The importance of this case for our purpose is that had the Privy Council felt satisfied about intent to defraud, the appeal would have been dismissed and the view taken by the Supreme Court of Sierra Leone that the appellant was guilty of contempt would have been upheld. What emerges from this decision is that if a person does anything to defraud the court, he commits its contempt.

13. The King’s Bench judgment was rendered in R. v. Weisz, ex p Hector MacDonald Ltd.4 Lord Goddard, C.J. (speaking for the Court) held the action of the type, which was one of recovery of money on the basis of

3 1912 AC 347: 81 LJPC 169 : 105 LT 973 : 28 TLR 204, PC 4 (1951) 2 KB 611 1951) 2 All ER 408

427

account stated though there was none, as an abuse of the process of the court but not per se a contempt. It was however added that if the attempt were to deceive by disguising the true nature of the claim, the same would be contempt. On the facts of the case it was found that the solicitor firm had committed contempt as it had endorsed the writ (which was for money won at betting) for a fictitious, though apparently a legal cause of action, as Parliament had ordained that courts are not to be used for realising such monies. The action was, therefore, regarded as an interference with, or distortion of, the course of justice. (A different view was, however, taken insofar as the litigant himself was concerned as he had done nothing to bring a feigned issue before the court.)

14.The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.

15.Before applying our mind to the question of sentence, we would advert to an offer of unconditional apology tendered by Anil Kumar in his affidavit filed on 29-10-1994. A perusal of the same shows that this was done after the deponent formed an impression, when the matter was argued in court in his presence on 24th October, 1994 (on which date the judgment was also reserved), that we were of the view that he had committed wrong. The affidavit further states that if he would be punished, his life would “get shattered”, as after his divorce proceeding was completed recently he could secure a job and has started his “life afresh”. Thus, the apology tendered is not a product of remorse or contrition, which it has to be to merit acceptance, as stated in M.B. Sanghi v. High Court of Punjab & Haryana5 in which case it was also pointed out that an apology merely to protect against rigours of law is no apology. In Major General B.M. Bhattacharjee v. Russel Estate Corpn.6 an “unconditional apology” while trying to justify the act (similar is the position here as would appear from the averments made in paragraph 5 of the aforesaid affidavit) was not accepted. Recently, in K.A. Mohammed Ali v. C.N. Prasannan7, a belated apology sought was refused.

16.Had the contemner shown real contriteness and regret for the act done, we would have perhaps accepted his apology; but as it cannot be used as a weapon of defence to get purged of the guilt, which precisely the contemner has sought to do as he desires to avoid worldly suffering which would follow if sentenced, we reject his offer and proceed to decide the question of sentence. Let it be first seen whether sentence of fine would meet the ends of justice. In our view, such a sentence would not be conducive to 5 (1991) 3 SCC 600: 1991 SCC (Cri) 897

6 (1993) 2 SCC 533

7 1994 Supp (3) SCC 509 : JT (1994) 6 SC 584 428

the larger cause of maintenance of purity in the portals of court inasmuch as if a fabricated document with oblique motive can be filed in the Apex Court, a serious view for the same has to be taken to maintain a modicum of fairness in courts below. This apart, the increasing tendency of taking recourse to objectionable means to get a favourable verdict in the courts has to be viewed gravely to deter the large number of persons approaching courts from doing so. Such a tendency is required to be curbed, which requires somewhat deterrent sentence.

17.Keeping in view the above, we award sentence of two weeks’ imprisonment to the contemner. We would have indeed awarded a longer period of incarceration because of the gravity of contumacious act fabrication of document to defeat just cause of an adversary and thereby seriously affecting the purity of courts’ proceeding but we have refrained from doing so as this is the first occasion in free India when this Court (for that matter may be any court of the country) has felt called upon to send a person like the contemner behind iron bars in exercise of contempt jurisdiction. We have restricted the period of imprisonment to two weeks in the hope that the incarceration of this contemner will work- as eye-opener and no court will henceforth feel constrained and to do so in any other case. We have traversed the untreaded path guardedly, because the assumption of contempt jurisdiction by a court requires zealous and careful movement as the affected party faces a summary trial and the prosecutor himself acts as a judge.

18. The proceeding stands disposed of accordingly. 433

http://indiankanoon.org/doc/1224592/

Perjury application must be decided first before proceeding with the case

Court No.29
High Court of Judicature at Allahabad, Lucknow Bench, Lucknow
Writ Petition No. (M/S) of 2002

Syed Nazim Husain
Vs.
The Additional Principal
Judge Family Court &
another

Hon’ble A. Mateen, J.

Heard learned counsel for the petitioner as well as learned A.G.A.

Since a very trivial point is involved I propose to dispose of the petition at this initial stage. Learned counsel for the petitioner has approached this Court with the prayer that the order dated 24.10.2002 be quashed.

From the order dated 24.10.2002 it comes out that the learned Additional Principal Judge, Family Court on the application, moved by the petioner under Section 340, 344 Cr.P.C. instead of disposing of the same had postponed disposal of the said application and ordered that said application may be disposed of after evidence is recorded in case No. 566/89.

In my view, if an application is moved in the pending case bringing to the notice of the court that any false evidence knowing well has been filed or fabricated in such proceedings, the court should dispose of the said application first before proceeding any further or before recording of further evidence.

In the circumstances, I dispose of the present application and direct the Additional Principal Judge Family Court to dispose of the application so moved by the petitioner under Section 340, 344 Cr.P.C. before proceeding further in accordance with law.

With the above observations the petition is disposed of finally.

9.1.2003 sd- A.Mateen

Petition under CrPC 340 must be decided only at the end – Karnataka HC

http://indiankanoon.org/doc/586954/

Equivalent citations: I (2002) DMC 84, ILR 2001 KAR 4925

Bench: M Anwar

Arun Kumar Agarwal vs Mrs. Radha Arun on 15/3/2001

JUDGMENT

Mohamed Anwar, J.

1. By the above appeal, the appellant herein intends to challenge the interim order dated 30.1.2001 of the Family Court, Bangalore City made in G and WC No. 3/2000, rejecting appellant’s application i.e., LA. No. 13 that was made therein by him praying that the learned Judge of the Family Court may be pleased to take action against respondent herein for her prosecution for the offences under Sections 191 and 193 of I.P.C. for the reasons stated in his accompanying affidavit.

2. The facts appearing from record in this appeal may be stated as under :

The parties hereto are husband and wife. They are hereinafter referred to as such. Their marriage was stated to have taken place somewhere in 1983. It was a love marriage. At that point of time both parties were appeared to be in a somewhat well off situation. Both are graduates. Husband is a graduate of Bihar University, whereas, the wife prosecuted her studies from Delhi University. She has done her post graduation from that University. After her studies she was employed as an IRS Officer in Customs Department. Presently, she is working as Joint Commissioner of Customs at Bangalore. After marriage, two children were begotten to them. They are Kum. Chinmayi, aged about 15 years and Master Childanand, aged about 13 years. The wife’s parents are from Bangalore. Respondent hails from Bihar State. Husband was appointed in a Public Sector Bank and he has been terminated from service by the said Bank. Thereafter, he was engaged in investing money in shares and other investments. Presently, he is not shown to have been employed in any regular job or service in any concern or sector.

3. In December, 1999, the wife filed a petition under Sections 7 and 8 of the Guardian and Wards Act (“the Act” for short) in G and WC No. 1/1999 in the Family Court at Bangalore praying for a decree against her husband; declaring that, her husband is unfit to be a natural guardian of their said minor children and further declaring that, the wife is the fit and proper person to be their guardian and to appoint her as the guardian of said minor children. After furnishing necessary details of their marriage and the required information at paragraph Nos. 1 to 7 of the petition, it is averred by the wife at paragraph 8 thereof that her marriage with her husband became a non starter from the beginning. Two days prior to their wedding it was discovered by her that her husband was living with another woman named Sita Tiwari and she was about to give up the idea of marrying him. But she was assured by him that he would correct himself and she did not bother about his affair with the said Sita Tiwari. After marriage their marital life was normal for a couple of years, although there had been many ups and downs in their married life on account of respondent’s attitude and behaviour.

4. At para 11 of the petition it was averred that her husband was a man of suspicious nature and he is an emotional person. He hat, not true love for her and affection for her children. In para 11 of the petition it is further stated that her husband having been removed from the said job in the said Public Sector Bank in the year 1989-90, he is unemployed since then. He keeps himself pre-occupied by filing public interest litigations and he is in the habit of blackmailing people. He had obtained his wife’s signature in black papers by force and coercion with some ulterior motive. He is an eccentric person with an unsound mind and in fact a streak of insanity runs in his family. It is further averred at para 12 of the petition that the petitioner-wife herself has been running the household from the very beginning and maintaining her children. She does not have the correct idea of the financial status -of her husband. At paragraphs 13 and 14 of the petition it is stated that the petitioner-wife has been posted in Bangalore since 1989. Her said minor daughter is studying in 11th Standard and the said minor son is in 8th Standard at the Frank Anthony Public School, Bangalore. They are doing well in their education and other extra curricular activities. She has taken house near her parents’ home in Bangalore, so that her said children would be looked after well. Last year, it was found by the petitioner-wife that respondent has revived his relationship with the said girl Sita Tiwari, whom he had divorced and for which divorce, the petitioner herself had contributed to provide the dowry amount. Although, the said Sita Tiwari is now a divorcee, her husband has developed illicit affair with her and he is now residing in Delhi for the last one year and probably living with the said woman Sita Tiwari in Mayur Vihar flat at Delhi.

5. Further, the petition allegations are that the petitioner’s husband is demanding the custody of her said minor children with a view to blackmail her. She is not willing to part with her children. Nor the children have any desire or willing to live with him. But, he is bent upon taking them to his custody by fair or foul means. The wife being well placed in life with a high official position in’ Customs Department, she’ is quite capable and in a far better position to cater to the educational and other requirements of her children in the best possible manner and for their healthy upbringing and development. On the contrary, the respondent is not in a position to look after the said children and take care of their healthy development.

6. The wife had also made an interim application i.e., LA. No. 3, under Section 12 of the Act read with Order 39 Rules 1 and 2 of C.P.C. for temporary injunction against her husband restraining him from removing the said children from her custody during pendency of her petition. On LA. No. 3, the Court below passed an ex-parte order of temporary injunction dated 27.12.1999 against him.

7. After the husband put in his appearance in the said G and WC No. 1/1999, through his Counsel, his separate statements of objections against the petition and said LA. No. 3 were filed, specifically denying the allegations made against him therein. The substance of the case pleaded in the petition was reiterated by the wife in her affidavit filed in support of the said LA. No. 3

8. It was husband’s case he is in an eminently better position to maintain the children and is entitled to their custody. Therefore, he made an application to vacate the said ex-parte order contending that, that order had been obtained by the wife on the basis of baseless averments and false allegations made against him. At the same time, an application i.e., LA. No. 13, styled as filed under Sections 191 and 193 of I.P.C. was also made by him praying that the Court below may be pleased to initiate perjury proceedings against the wife of tendering intentionally false evidence on I.A. No. 3 by way of her affidavit.

9. LA. No. 13, as well, was resisted by the wife by filing the statement of objections thereto.

10. The Court below by its considered order dated 30.1.2001 rejected the husband’s application which was made praying to vacate the said ex-parte order of temporary injunction dated 27.12.1999 and confirmed the same..

11. As regards husband’s LA. No. 13, the learned Judge of Family Court ejected the same by his impugned order dated 30.1.2001 observing to the fact that’ it is a premature one and that at the present stage of the proceeding he cannot jump to the conclusion that husband has made out a case against his wife to hold that she has given false evidence in the case. It is further observed by the learned Trial Judge that if LA. 13 is allowed at this stage, it is as good as giving final verdict on the merits of the petition.

12. Mr. Kumar, learned Counsel for appellant, instead of proceeding with the argument in the matter of admission of appeal, he filed a memo of retirement for the. appellant, submitting that appellant himself infends to appear in person and submit his argument. Accordingly, the appellant was permitted to address the Court who argued at length fairly well assailing the impugned order dated 30.1.2001 of the Court below. Proposing to place reliance on several decisions, he maintained that the Court below was not legally justified in rejecting his LA. No. 13 and that it has committed a grave error in not allowing the same and lodging a complaint under Section 340, Cr. P.C. for perjury under Section 193 of I.P.C. against his wife.

13. In his attempt to substantiate his contention, appellant took the Court through LA. No. 13 and his affidavit filed in support thereof, which are produced at pages 59 to 69 herein and his list of documents filed on 3.3.2001. Particularly, Court’s attention was drawn by him to para 8 of his affidavit, where he has categorically referred to the so-called false statements of his wife made in her petition and affidavit filed in support of LA. No. 3, on the basis of which, she obtained the said ex-parte order of temporary injunction dated 27.12.1999. Whole of this paragraph 8 is extracted below :

“I submit that the following averments of the petitioner need to be specifically brought to the notice of the Hon’ble Court as being false and which were made to obtain ex-parte order from the Hon’ble Court. There is documentary evidence (as well as witnesses) to prove that the petitioner statement was knowingly false as I could not be living in Delhi while residing at the marital home in Bangalore. These are :

Para 5 of the LA. III. “The respondent has now been demanding that I should give him divorce as he wants to marry his girl friend one Sita Tiwau. He is already living with her for the past several months”.

It was this statement of the petition that the Court, believed in while passing the interim order granting the petitioner the custody of the children, as can be seen from the marking in the margin of the LA. 1 made by the Hon’ble Court.

Para 8 of LA. III, The petitioner states “Added to this, he has an affair with this other woman”.

Para 14 of the petition, the petitioner states “Last year the petitioner discovered that the respondent had revived his relationship with his girl friend…”.

In para 15 of the petition, the petitioner states “The respondent has now been residing in Delhi from the past one year on a regular basis. The petitioner believes that the respondent has been living with this woman in Mayur Vihar Flat, but has been maintaining a separate address for mailing purpose only”.

In para 18 of the petition, the petitioner has stated “The respondent is staying in Delhi, and has been living with his girl friend and the house lacks an atmosphere, congenial for the children and the values and attitudes are detrimental to the welfare of the children…”.

14. It was vehemently argued by the appellant that he is a person of high standing in the society, he having filed even 2 or 3 public interest litigations in the High Courts of Karnataka and Delhi exposing the public cause involving the burning issues of the “Kick backs” in the Cogentrix Project in Karnataka and the appointment of the Chairman of “SEBI”. As such he is more conscious of his responsibility as an affectionate father towards his children. In that view of martter, the serious allegations made by his wife, which are listed at para 8 of his affidavit, casting serious aspersion on his character and conduct are totally false allegations and they amount to offence of perjury. Therefore, the material on Court makes out a strong prima facie case at this juncture itself of the proceeding and in that view of the matter, the learned Trial Judge ought to have straigh taway proceeded to hold an enquiry under Section ,340 Cr. P.C. and to file a complaint for the offence under Section 193, I.P.C. against his wife.

15. In support of this contention, reliance was sought to be drawn by him from the following decisions :

Jagat Bandhu Chakravarthy v. The State, AIR 1955 NUC (Cal.) 2906; Emperor v. Padam Singh, AIR 1930 All. 490; Baban Singh v. Jagadish Singh, ; K. Karunakaran v. T.V. Eachara Warrier, ; Kailashnath v. Harishchandra, AIR 1953 Madhya

Bharat 12; Mapu Mai v. Ko Sit Tin, 1924 Rangoon 374; Dhananjay Sharma v. State of Haryana, II .

16. It is necessary to bear in view, the relevant provisions under Sections 340, Cr. P.C. and 191 and 193 of I.P.C, for just and proper appreciation of the husband’s prayer made in his LA. No. 13 and of the impugned order of the Court below passed thereon. The material portion of Section 340, Cr. P.C. is extracted below :

“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 interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (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) xxxx, (e) xxxx, (2) xxxx, (3) xxxx, (4) xxxx.”

17. The relevant portion of Section 195 of Cr. P.C. deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

18. The relevant portion of Sub-clause (b) of Section 195(1) thereof reads as under :

“(1) No Court shall take cognizance :

(a)xxx xxx xxx

(b) (i) Of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 194 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) xxx xxx xxx

(iii) xxx xxx xxx

except on the complaint in writing of that Court, or of some other Court to hich that Court is subordinate.”

19. The prosecution for the offence under Section 193, I.P.C. is also covered by Sub-clause (b)(i) of Section 195(1) of Cr. P.C. Section 193, I.P.C. is a penal provision which provides for “Punishment for false evidence” “Giving false evidence” is dealt with and is explained by Section 193, I.P.C.

20. The material portion of Section 193 is reproduced below :

“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.”

21. A combined reading of the afore-quoted provisions of Cr. P.C. and I.P.C. as also Sub-section (3) of Section 195, Cr. P.C. makes this legal position quite clear that they are applicable to any legal proceeding before a Civil Court or a Criminal Court, including a Tribunal constituted by a Central, Provincial or State Acts, if declared by that particular Act to be a Court for the purpose of Section 195 of Cr. P.C.

Therefore, if the Family Court finds that any party to the proceeding or a witness therein has intentionally given false evidence at any stage of a judicial proceeding or fabricated false evidence for the purpose of being used in any stage of the proceeding, and the Family Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any evidence referred to in Clause (b) of Sub-section (1) of Section 195, Cr. P.C. which appears to have been committed respecting that particular legal proceeding or in respect of a particular documents produced therein are given in evidence it may hold a preliminary enquiry and if it thinks necessary then it may record a finding to that effect and then proceed to make a complaint in respect of the particular offence/offfences stipulated in Clause (b) of Section 195, Cr. P.C. to the concerned Magistrate having jurisdiction against the said person.

The judicial exercise involved in this process on the part of the Presiding Officer of the Trial Court calls for prima facie determination of the fact if any such false evidence or fabricated document bearing on the point and issues had been given or produced by a party to the proceeding or a witness therein.

If the particular judicial or legal proceeding relates to trial of civil proceeding or the contentious issues in a legal proceeding, raised therein by respective pleadings of the parties, and which require final adjudication of the Trial Court on the merits of the evidence to be let in oh record by the parties in support of their respective case, then it goes without saying that the most appropriate stage for the Trial Judge in such a trial proceeding is to formulate his opinion on filing or non-filing of complaint contemplated under Section 340 of Cr. P.C. would be at the final stage of disposal of the main matter on merits as has been rightly observed by the learned Trial Judge of the Court below.

Otherwise, if the Presiding Officer of a Trial Court is to take a decision relating to alleged perjury or false statement at the initial stage of the proceeding, then in all probability, it will prejudicially affect the fair disposal of the main matter on its merits and, therefore, it would certainly deflect the course of justice. !

22. I am taken through all the aforestated decisions cited by learned Counsel for appellant. In none of these decisions it is laid down and held that in a trial proceeding pending before a Trial Court involving contentious issues for its determination on the basis of merit of evidence let in record, is bound to first deal with and dispose of an application made by a party to the proceeding under Section 340, Cr. P.C, even at a preliminary stage of the proceeding itself, formulating his definite opinion as to the falsity or perjury or otherwise of certain material facts alleged by one party and denied by the other in such a proceeding. Therefore, all these decisions are of little avail and help to the appellant’s case.

23. For these reasons, I find that the Trial Court is perfectly justified in passing its impugned order rejecting the appellant’s LA. No. 13 as not maintainable at the present stage of the proceeding on its file, it being a premature application.

24. Hence, the appeal is dismissed.

Important Perjury Citations

Laxminarayan Deepak Ranjan Das vs K.K. Jha And Ors. on 16 April, 1999

Section 340. of the Code incorporates following principles :

(i) Only cases where Courts, on objective consideration of the facts and circumstances are of honest belief and opinion that interests of justice require the laying of a complaint, should form subject of an enquiry.

(ii) Conducting preliminary enquiry or dispensing with it is not mandatory, but is discretionary.

(iii) A proceeding under the provision is an independent and different proceeding from that of the original sessions case.

(iv) The proceeding being penal in nature, in accordance with principles of natural justice the accused should be issued show cause notice to afford a reasonable opportunity to establish by adducing oral arid documentary evidence that it is not expedient in the interest of justice to prosecute him.

(v) As a condition precedent to filing a complaint; the Court should record a finding that it is expedient in the interests of justice that an enquiry should be made….

(vi) The provision to record a finding is not merely discretionary but is mandatory, for, an appeal lies against the order of the Court.

(vii) The order recording such a finding must be a speaking one supported by valid and justifiable grounds to enable the appellate Court to know the material on which the Court formed the opinion that it was expedient in the interest of justice to launch a prosecution.

(viii) The language recording the finding as contemplated under the provision must be such that it leaves no doubt that it was a fit and proper case.

(ix) It is incumbent on the Court to give a specific finding before making a complaint.

(x) The omission or failure to record a finding that it is expedient in the interests of justice to enquire into the offence is not a mere irregularity curable under Sections 464 and 465 of the Code as it goes to the root of the matter and the Court will have no jurisdiction to file a complaint without recording such a finding.

8. Before an order is made under Section 340 of the Code there must be grounds of a nature higher than mere surmise or suspicion for directing a judicial enquiry. Before the proceedings under Section 340 to be instituted there must be direct evidence fixing the offence upon the persons whom it is sought to charge either in the preliminary enquiry or in the earlier proceedings out of which the enquiry arises. It is not sufficient that the evidence in the earlier case may induce Some sort of suspicion that these persons had been guilty of an offence but there must be distinct evidence of the commission of an offence by such persons. A complaint under this section should not be made against a person where the indications of his guilt do not amount to anything more than mere suspicion.

10. As pointed out by the Supreme Court in K. Karunakaran v. T.V. Bachara Warner AIR 1978 SC 290: (1978 Cri LJ 339) in a proceeding under Section 340(1) of the Code the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the Court in the earlier proceedings. The only question at an enquiry under Section 340(1) of the Code is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. The party may choose to place all its materials before the Court at this stage, but if it does not, it will not be, estopped from doing so later if the trial of prosecution is sanctioned by the Court. An enquiry under Section 340(1) of the Code is in the nature of affording a locus paenitentiae to a person and if at that stage the Court chooses to take action, it does not mean that he will not have full opportunity in due course of the process of justice to establish his innocence.

 

Sri Chand vs State Of U.P. on 28 March, 2003

2. The first appeal from order No. 46 of 1985 preferred under Section 83 of Lunacy Act read with Section 341/195(4), Cr.P.C. challenging the order dated 19-10-1984 passed under Section 340, Cr.P.C. in Misc. Case No. 285 of 1982 (Madan Lal v. Sri Chand) was finally disposed of by the District Judge, Azamgarh on 18-3-1983 where the District Judge has observed that Sri Chand had filed a false affidavit indicating that Madan Lal happened to be his real brother. On that aspect the District Judge had indicated for issuance of show cause notice for institution of a criminal complaint against him. The miscellaneous application No: 205 of 1983 has been originated from the said observation in respect of the alleged false affidavit filed by Sri Chand before the lower Court. Undoubtedly Sri Chand has filed an affidavit in Misc. Case No. 285 of 1982 which is allegedly to be a false affidavit wherein he had averred that Madan Lal happened to be his real brother whereas in another litigation regarding partitions of property Sri Chand the appellant before this Court has made and categorically asserted that Madan Lal is not his brother, that litigation was pending from much before the instant proceeding in which the impugned order in question and the cognizance of alleged false affidavit was noted on this aspect learned lower Court took a view that Sri Chand has filed a false affidavit. Learned lower Court has also made observations in the order dated 19-10-1984 that learned counsel for Sri Chand had very humbly stated before the lower Court that he has not done so intentionally with a view to gain something. However, learned District Judge had viewed such averment of Sri Chand presented on affidavit that definitely it was a false statement in the knowledge of Sri Chand and has been viewed that Sri Chand has deliberately filed a false affidavit touching his relationship with Madan Lal. Learned lower Court has also noted that Sri Chand was not instrumental in drafting of the affidavit as it was got prepared by the then learned counsel engaged in that case and Sri Chand had only made a signature at the bottom of the plain paper and as a common litigant and he could not make an attempt to peruse or he could not realise the necessity; of perusing the entire contents of the affidavit. According to Sri Chand he had simply put a signature under the affidavit in a blind folded manner without making any endeavourance to know the contents. However, learned lower Court has ignored these aspects in the matter and has viewed that such phenomena is uncommon and has considered that it a fit case where criminal’ complaint was to be filed against Sri Chand for filing false affidavit in the miscellaneous case.

 

State: Represented By Its … vs Baddepudi Penchalaiah, on 11 October, 2007

In the impugned judgment, the learned Special Judge observed that PW.1 gave false evidence before the trial Court, which is different from the version given by him before the Magistrate under Section 164 of Cr.P.C. Therefore, he is liable to be prosecuted for perjury under Section 193 of the Indian Penal Code.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

In view of the admission and also in view of the affidavit and the records now filed by the respondents admitting the fact that the service record showed the date of birth of the petitioner as 12.7.1948, the respondent authorities are prima facie guilty of contempt and perjury.

Considering the peculiar facts and circumstances of the case and also in view of the fact that the petitioner has attained superannuation after completing 60 years of service and has collected retiral dues there is no point to initiate contempt proceedings and or perjury proceeding under Section 340 Cr.P.C. at this stage. However, it will be in the interest of justice to direct the respondent Management to pay a cost of Rs.20,000/- to the petitioner since he suffered at the hands of the respondents authority for making false statement on oath. It is also directed that if the retiral dues has not been released the same should be released within a period of one month from the date of receipt/production of a copy of this order. This writ petition is accordingly disposed of with the aforesaid direction.”

 

 

Balshiram Rambhau Awate vs The State Of Maharashtra on 23 March, 1977

6. However, we are sorry to find that the learned trial Judge having taken a correct view of the situation did not proceed logically to issue notices to at least three of the prosecution witnesses for having committed perjury. Two courses were open to him. He could have taken action under Section 344 Cr.PC summarily and arranged to punish them there and then. It was also open to him to hold a summary inquiry Under Section 340 (1) of the Cr.PC and decide whether a complaint should be filed. In this regard the learned trial Judge has shown some inaction. We find that the Police Patil and the Kotwal being public servants could not be allowed to run away scot-free from the Court in spite of committing perjury. In the same manner victim Damo- dar who has received several injuries at the hands of his brother cannot play fast and loose with the Court. We are thus satisfied that it is necessary to take action against these three witnesses for having committed the offence of perjury. We would therefore hold a preliminary inquiry in that behalf as contemplated by Sub-section (1) of Section 340 Cr.PC

 

Baiju Kumar vs D.E.O. on 10 July, 2003

9. The Manager has raised some new contentions in the counter affidavit which he has not raised either in O.P. No. 14830/99 or before the Government. They are regarding the ineligibility including financial position of the petitioner etc. Those contentions have been raised as a result of an afterthought as a desperate attempt to sustain Ext.P5. In those efforts, he has made conflicting pleas which may amount to commission of perjury warranting an order under Section 340 of the Cr.P.C. directing his trial for perjury by the competent Criminal Court. In O.P. No. 14830/99, the Manager has pleaded regarding the submission of the application by the petitioner in the following manner:-

 

 

Jose Kuruvinakunnel vs A.T. Jose on 6 December, 1996

3. The revision petitioner herein filed O. P. (Misc) 7/85 before the Munsiffs Court, Pala under Section 340 of the Criminal Procedure. Code against the respondent herein who is the 3rd defendant in O.S. 68/83 alleging that he had manipulated the official records of the Panchayat and had given false evidence before Court and as such he has committed the offence punishable under Sections 191 and 192 of the IPC.

4. After trial the Munsiffs Court dismissed the Suit. The Munsiffs Court also dismissed the O. P. (Misc.) 7/85 holding that there is no sufficient material to institute proceedings against the respondent herein under Section 340 of the Cri. P. C.

30. Therefore, it is clear that prosecution can be initiated by resorting to Section 340 of Cr. P. C. only in cases where it is expedient in the interests of justice to prosecute the party and prima facie evidence is adduced in that behalf and the provisions of Section 340 of Cr. P. C. cannot be resorted to lightly on the mere allegations, or to vindicate personal vendetta.

29. In the decision in Suntokh Singh v. Izhar Hussain AIR 1973 SC 2190 : 1973 Cri LJ 1176 the Supreme Court observed as follows (Para 11):

Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The Court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the Court should direct prosecution.

Mahila Vinod Kumar I vs State Of Madhya Pradesh on 11 July, 2008

7. This section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section 479 A which did not have the desired effect to eradicate the evils of perjury. The salient features of this new provision are:

(1) Special powers have been conferred on two specified Courts, namely Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of filing a complaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Ch. 21. 6

(2) This power is to be exercised after having the matter considered by the Court only at the time of delivery of the judgment or final order.

(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.

(4) The maximum sentence that may be imposed is 3 month’s imprisonment or a fine up to Rs.500 or both. (5) The order of the Court is appealable (vide S. 351). (6) The procedure in this section is an alternative to one under Sections 340-343. The Court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the Court is of opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons considered to be such that the case should be disposed of under the ordinary procedure which 7

would be more appropriate, the Court may chose to do so [vide sub-section (3)].

(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)].

8. For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness 8must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions arc mandatory. [See Narayanswamy v. State of Muharashtra, (1971) 2 SCC 182].

 

Vittappan vs State on 9 April, 1987

10. A court directing prosecution for perjury is not vindicating the grievance of any party. The action is mainly to safeguard the prestige and the dignity of the court and to maintain the confidence of the people in the efficiency of the judicial process. What the court is mainly interested in is seeing that administration of justice and dignity of the court is not flouted. The Sessions Judge did not specifically find on which aspect the appellant gave false evidence and whether that evidence was purposely made or whether it had any real impact on the decision of the case. In fact he did not even consider whether any perjury was committed. This is evident when he refused to express any opinion on that aspect and said that what he is concerned under Section 340 is only to see whether an enquiry is necessary or not. The only opinion formed by him for filing the complaint is that interest of justice demands an. enquiry as to whether the appellant committed the offence of giving false evidence in court. I am of opinion that the Sessions Judge has not complied with the mandatory provisions of Section 340 of the Code and filed the complaint after passing the impugned order without the requisite satisfaction and without understanding the legal provision correctly. In fact the materials make it clear that this is not a fit case where it was expedient in the interest of justice to have an enquiry under Section 340 of the Code much less a prosecution. The impugned order and consequently the complaint must go.

 

Amzad Ali vs Marfat Ali Biswas And Two Ors. on 11 June, 1998

Thereafter, the defendant respondent no.l filed an application under section 340 Cr.PC before the Court of Munslf, Lalbag, praying for lodging a complaint against the plaintifi* petitioner alleging that the plaintiff petitioner fraudulently and dishonestly used as genuine the aforesaid, deed of sale dated 10.3.38, knowing or having reason to believe that it was a forged document and had thereby committed an offence punishable under section 471 I.PC This application was registered as Misc. Case No.34 of 1988 of the Court of Munsiff, Lalbag.

 

Mohanlal vs State Of Rajasthan And Ors. on 1 October, 1980

 

I am, therefore, convinced that it is time that exploitation abuse and misuse of equitable jurisdiction is stopped, as founding fathers never intended it to make it an “Allaudin’s lamp” for providing protective umbrella to all inequitable evil geniuses and social parasites. Anti-soqial dishonest and unjust litigants cannot use smoke screen of ‘natural justice’ to perpetuate unnatural injustice. Tainted hands cannot be allowed to touch pure fountains of justice.

 

Sardar Harjit Singh vs Sardar Ravel Singh & Ors on 1 January, 1800

TRUTH was the hallmark of the justice delivery system which operated in the country till the establishment of the court system under British rule. The people used to tell truth and truth only without being influenced by its consequences. In the present day judicial system the truth is perhaps the biggest casualty. Unscrupulous litigants like the petitioners leave no stone unturned to mislead the quasi-judicial and judicial authorities and the courts for material gains. The entire system has become victim of such persons. In order to meet this challenge, the courts have evolved new rules, strategies CS (OS) No.690/2005 Page 16 of 23 and techniques. One such rule is that the court will not grant hearing to a person who does not approach it with clean hands. To put it differently, a person who touches the fountain of justice with the tainted hand or who makes an attempt to pollute the course of justice by making false or misleading statements or by suppressing facts must be shown the door at the threshold.”

 

Shiv Dan Singh vs State Of Rajasthan on 12 January, 1983

Mr. Khan wanted to show to me the record of Order Book of the Police Department for the year 1948, in which at Section No. 188 it is mentioned that the enlistment of the petitioner was done and his age has been mentioned as 20 years. However, it will be unnecessary to travel into any other record, because I am convinced that the very bedrock and the foundation of the allegation that the original entry was 29.11.27 is not only incorrect, but further based on some inter-polation, which is visible to a naked eye and is patent. Tainted hands cannot be allowed to touch pure fountains of Justice.

S.P Chengalvaraya Naidu vs Jagannath on 27 October, 1993

The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

Every allegations do not justify initiation of prosecution under 340 CRPC

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(CRL) 286/2007

RAJKUMAR INDORIA ….. Petitioner Through Ms. Anu Mehta, Advocate.

versus

NCT OF DELHI NEW DELHI ….. Respondent Through Nemo.

CORAM:

HON’BLE MR. JUSTICE SANJIV KHANNA

ORDER

% 18.08.2010

CRL.M.A. No. 13869/2010

1. The writ petition filed by the petitioner for police protection to him and his family members was disposed of on 9th August, 2010. It was noticed that the petitioner was initially granted police protection in the year 2005 but police protection/PSO was subsequently withdrawn after re-assessment of the threat perception in the year 2007. The order dated 9th August, 2010 notices the fact that the threat perception of the petitioner and his family was examined by Special Cell, Delhi Police, Ministry of Home Affairs and then again by DCP (Special Cell). It was also noticed that there are some FIRs, which are registered against the petitioner.

2. Now the petitioner has filed the present application under Section 340 of the Code of Criminal Procedure, 1973 stating, inter alia, that wrong and false averments have been made in the status report which amount to perjury. Learned counsel appearing for the applicant submits that FIR No. 580/2005, Police Station NDLS, Delhi was registered on the complaint of the petitioner against Mr. Ramchander Khaganwal under Section 325 and not under Section 323 of the IPC. It is further stated that the licence of Mr. Ramchander Khaganwal was cancelled in 2007 by the Northern Railway. She has relied upon In re R. Karuppan 2001 CriLJ 266.

3. These two allegations do not justify initiation of prosecution. In the order dated 9th August, 2010 several aspects and facts have been taken into consideration. The dispute between the petitioner and Mr. Ramchander Khaganwal is noticed and that there are cross FIRs. It is not expedient in the interest of justice to enquire into the alleged offence as has been observed in Pritish vs State of Maharashtra (2002) 1 SCC 253. The relevant paragraph reads:

“16. Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff v. State of Madras1 a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.”

4. Further, the expediency should be judged by taking into

consideration the impact that commission of such offence has on the

administration of justice. The Supreme Court has held in Iqbal Sigh

Marwah v. Meenakkshi Marwah (2005) 4 SCC 370:

“23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. .”

5. The aforesaid submissions do not justify further proceedings under Section 340 of the Code of Criminal Procedure, 1973. The application is dismissed.

SANJIV KHANNA, J.

AUGUST 18, 2010

VKR

http://indiankanoon.org/doc/1721681/

Wife fined 10,000/- in Perjury case but Husband fighting for further action!!

Court No.27

Criminal Misc. Application No.30509 of 2009

Garima Srivastava Vs. State of U.P. and another

Hon. A.K. Roopanwal, J.

In this petition orders dated 15.7.09 and 7.10.09 passed by the Principal Judge, Family Court, Allahabad have been challenged.

It appears from the record that in a divorce case an application was moved by the husband that the lady had wrongly filed an affidavit that she is not serving in Delhi Public School, Arail, Naini, District Allahabad and therefore, action be taken against her. The lady was ready for inquiry in the matter and the court vide order dated 21.11.06 ordered that the inquiry be made in the matter and the defaulter be punished with a fine of Rs.10,000/-. Subsequent thereto the report from the college was obtained and it was reported by the college that the version of the lady was wrong. In such situation, the court vide order dated 15.7.09 imposed a fine of Rs.10,000/- upon the lady (applicant). By the order dated 7.10.09 the objections filed by the applicant against the maintainability of the proceedings under Section 340, Cr.P.C. instituted by the husband were rejected. Heard Mr. A.N. Tripathi, learned counsel for the applicant, learned AGA and perused the record.

It has been argued by Mr. Tripathi that under the provisions of Section 340, Cr.P.C. the court can make only preliminary inquiry and the final order which may be in the form of imposing fine can be passed by the court of competent jurisdiction and the court of competent jurisdiction would be that court in which the complaint would be filed by the court in which the perjury was committed. The court which made the preliminary inquiry had no jurisdiction to finally conclude the matter and impose the fine, therefore, the order dated 15.7.09 is bad and is liable to be quashed. Regarding the order dated 7.10.09 it was argued by Mr. Tripathi that once a wrong order was passed by the court on 15.7.09 it should have been reviewed and when it was not reviewed, hence, the order dated 7.10.09 is also bad and is liable to be quashed.

So far as the order dated 15.7.09 is concerned, in that regard I am of the view that the matter is liable to be taken further for hearing as there is some substance in the argument advanced by Mr. Tripathi. So far as the argument regarding the order dated 7.10.09 is concerned, in that regard it has been argued by Mr. Tripathi that the court cannot initiate dual proceedings. Once the matter was concluded vide order dated 15.7.09 there could be no propriety at all to continue the proceedings under Section 340, Cr.P.C. Issue notice to O.P. No.2 to file counter affidavit within 2 weeks’. Rejoinder affidavit, if any, may be filed within 1 week thereafter.

Till then, operation of the orders dated 15.7.09 and 7.10.09 passed by the Principal Judge Family Court, Allahabad in misc. case no.2 of 2008, Rajesh Kumar Srivastava Vs. Garima Srivastava, under Section 340, Cr.P.C. shall remain stayed. Dated:19.1.2010/T. Sinha.

Well done Fighter-Argued party-in-person -In Chennai HC-In Perjury Matter

DATE: 26-08-2010

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN

Review Application Nos.108, 109 and 110 of 2010

S.Deepak ..Petitioner in all Review Applications

Versus

D.Anitha ..Respondent in all Review Applications

Prayer in Review Application No.108 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.422 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.109 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.423 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.110 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to review the order passed in the Tr.C.M.P.No.424 of 2009 dated 20.04.2010 on the file of this Court. For Applicants : Mr.S.Deepak (Party-in-person)

For Respondent : Mr.M.Palanivel

COMMON ORDER

The Review petition, in Review Petition No.108 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.422 of 2009. The said petition, in Tr.C.M.P.No.422 of 2009, had been filed seeking to withdraw M.C.No.35 of 2007, filed for maintenance, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai..

2. The Review petition, in Review Petition No.109 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.423 of 2009. The said petition, in Tr.C.M.P.No.423 of 2009 had been filed seeking to withdraw G.O.P.No.1 of 2008, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.

3. The Review petition, in Review Petition No.110 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.424 of 2009. The said Tr.C.M.P.No.424 of 2009 had been filed seeking to withdraw F.C.O.P.No.131 of 2007, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.

4. This Court, by a common order, dated 20.4.2010, had allowed the transfer civil miscellaneous petitions. Paragraph 13 of the said order reads as follows:

“13. It is not in dispute that both the petitioner and the respondent are, at present, living at Chennai. In view of the difficulties expressed by the petitioner, in her affidavits filed in support of her petitions, in attending the hearings before the family Court, at Salem, in the matters pending before it and as it has been stated that the petitioner has no independent income and that she is living with her aged father, at Chennai, along with her minor female child, this Court finds it appropriate to allow the above Transfer Civil Miscellaneous Petitions, by withdrawing M.C.No.35 of 2007, G.O.P.No.1 of 2008 and F.C.O.P.No.131 of 2007, pending on the file of the Family Court, Salem and transferring the same to the Principal Family Court, at Chennai. After transferring and renumbering, the Principal Family Court, Chennai, is directed to hear and dispose of the cases, on merits and in accordance with law, within six months thereafter. The Transfer Miscellaneous Petitions are allowed accordingly. No costs. Consequently, connected M.P.Nos.1,1 and 1 of 2009 are closed.

5. The main grievance of the review petitioner in the above review petitions is that the respondent, D.Anitha, had committed perjury, with mala fide intentions. He had also submitted that the respondent had suppressed material documents and thereby, had committed fraud on the Court. Further, she had come before this Court, with unclean hands. She had also mislead this Court by suppressing and misrepresenting the facts. As such, the order passed by this Court, on 20.4.2010, is null and void. The petitioner, who had appeared as party-in-person, before this Court, had also submitted that the claim of the respondent that she has no independent source of income is false and misleading.

6. Further, the allegation made by the respondent, in the transfer civil miscellaneous petitions, stating that the petitioner herein is impotent, is totally false. Similarly, the petitioner in the transfer civil miscellaneous petitions had also made various other baseless allegations against the present petitioner. As such, the respondent is liable for perjury. The petitioner had also submitted that the respondent would be legally liable for making such defamatory statements. He had also relied on the decision of the Supreme Court, made in Hamza Haji Vs. State of Kerala and another (AIR 2006 SC 3028) in support of the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law and that it can be challenged in any Court, even in collateral proceedings, in any Court.

7. In the counter affidavit filed by the respondent, the averments and allegations made by the petitioner had been denied. It had been stated that the petitioner had filed the present review petitions only with the mala fide intention of prolonging the proceedings before the Family Court at Chennai. The learned counsel appearing on behalf of the respondent had also submitted that the review petitions are devoid of merits and therefore, they are liable to be dismissed, with exemplary costs.

8. In view of the grounds raised by the petitioner in the review petitions and in view of the averments made in the counter affidavits filed on behalf of the respondent, and in view of the submissions made by the petitioner, as well as the learned counsel for the respondent, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for allowing the review petitions. No grounds have been made out to set aside the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos. 422, 423 and 424 of 2009.

9. The main reason for allowing the transfer civil miscellaneous petitions have been clearly stated in the order passed by this Court, on 20.4.2010. It is also noted that this Court had directed the Principal Family Court, Chennai, to hear and dispose of the cases, on merits and in accordance with law, within six months after the transferring and renumbering of the cases. It is also noted that the matters have been listed before the Family Court, Chennai, on 28.8.2010, for further hearing. In such circumstances, this Court does not find sufficient grounds to review the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos.422, 423 and 424 of 2009. Therefore, the review petitions stand dismissed. No costs. However, it is made clear that it would be open to the petitioner in the review petitions to meet all the allegations made by the respondent herein, before the Principal Family Court, Chennai, in the matters pending before the said Court, in the manner known to law. It is also made clear that the Principal Family Court, Chennai, is expected to comply with the directions issued by this Court, in its order, dated 20.4.2010, made in Tr.C.M.P.Nos.422, 423 and 424 of 2009. csh

To

1) The Family Court, Salem.

2) The Family Court at Chennai.

3) The Principal Judge, Family Court,

Chennai

Must read Judgement about CrPC 340/ Court record forgery-Justice Shiv Narain Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 13, 2010

Date of Order: August 30th 2010

+ Crl.MC No. 471/2009

% 30.08.2010 J.L. Goel & Ors. …Petitioners Versus

Rajesh Kumar Jain & Anr. …Respondents Counsels:

Mr. M.A. Khan and Mr. Mir Akhtar Hussain for petitioner.

Mr. O.P. Saxena, Additional Public Prosecutor for respondent/State. JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes. JUDGMENT

1. This petition under Section 482 Cr.P.C has been preferred by the petitioners for quashing a criminal complaint no.115/2007 under Section 109/120B/466/468 IPC and for setting aside the summoning order dated 30th November 2007passed by learned MM, Karkardooma Courts, Delhi.

2. Brief facts relevant for the purpose of deciding this petition are that petitioner no.6 Mrs. Anuradha Jain was married to respondent no.1 who is the complainant in complaint number 115 of 2007. A complaint lodged by her with CAW Cell against respondent no.1 and other family members of respondent no.1 culminated into an FIR No.244 of 1995 under Section 498A/406 read with Section 34 IPC and trial is going on in that case. The Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 1 Of 8 respondent no.1 filed the impugned complaint against the petitioners alleging that during trial of FIR No.244 of 1995, the wife, in collusion with other petitioners and in collusion with the record keeper removed the original complaint and got it substituted with an improved complaint, later she again got removed the improved complaint and substituted it with the original complaint. During this interval, the complainant had obtained a certified copy of the improved complaint. An application was made by respondent no.1 to the trial court under Section 340 read with Section 195 Cr.P.C for filing a complaint against the petitioners. The trial court, however, refused to lodge a complaint under Section 340 Cr.P.C, by a speaking order. The complainant (respondent no.1 herein) then filed a complaint under Section 156(3) Cr.P.C before the Metropolitan Magistrate and the learned MM recorded statement of respondent no.1 as CW-1 and after recording the statement of respondent no.1, summoned the petitioners under Section 466,468, 109, 120B IPC.

3. The record shows that respondent no.1 (husband) during trial before the trial court of FIR No.244 of 1995; tampered with the record of court and removed certain original documents and thrown them into the dustbin. An FIR in this respect was registered at the instance of the trial Court against respondent no.1 (husband) under Sections 380,204,411 and the trial of that case is going on against the respondent no.1.

4. It is submitted by counsel for petitioner that learned MM before whom respondent no.1 filed the complaint alleging replacement/ removal of original complaint by an improved one and then again putting back the original complaint in the judicial record could not have taken the cognizance of the offence in view of bar under Section 195 (1)(b)(ii) of Cr.P.C since the offence was committed during trial of case FIR No.244 of 1995 within the cognizance of the Court concerned hence it was the trial court who could alone have filed a complaint under Section 340 Cr.P.C. The other submission made by Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 2 Of 8 the counsel for the petitioners are that the complaint filed by respondent no.1 does not disclose any cause of action against the petitioners other than respondent no.1 i.e. Mrs. Anuradha Jain.

5. I find force in both the contentions raised by the counsel for the petitioners. A perusal of statement of CW-1 (respondent no.1 herein) would show that he had alleged that Mrs. Anuradha Jain in collusion with court staff prepared a forged and fabricated document during the court proceedings and manipulated replacement of this document into the court file by removing the original complaint and thereafter getting this forged complaint again replaced with the original complaint. He stated that he obtained certified copy of the replaced complaint. He further submits that Mrs. Anuradha Jain not only got prepared an improved complaint but also obtained stamp of CAW Cell on it. It is his case that the trial court passed an order dated 24th March, 2009 in respect of missing judicial record.

6. The allegations made by respondent against the petitioners (except petitioner no.6) are that they advised Mrs. Anuradha Jain to commit this forgery with the aid of court staff. On the basis of this statement, learned MM summoned all the petitioners observing that the Supreme Court in (2003) 4 SCC 139 laid down that there was no necessity of giving reasons at the time of summoning.

7. I consider that learned MM grossly exceeded his powers and jurisdiction. It has been observed by this Court time and again that initiation of criminal proceedings should not be done in a casual manner by any court and the courts must not act as a tool in the hands of unscrupulous elements. There is no doubt that reasons are not required to be given by the Courts of MM at the time of issuing summoning order, however, the learned MM was supposed to ensure that there was sufficient material disclosed by the Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 3 Of 8 complainant in the complaint and during evidence, warranting summoning of the accused. A complainant may name 20 persons as accused. A Court of MM cannot blindly summon all the 20 persons without going into the fact whether those 20 persons had been ascribed a role in commission of the offence or not. The learned MM in this case seems to have summoned the petitioners only because their names were mentioned by the complainant in the array of parties, despite the fact that the complainant had not spelt out what was the role played by them in forging the documents or in replacement of documents. I, therefore, find that the order of learned MM summoning the petitioners no.1 to 5 was a mechanical order and the learned MM acted as a tool in the hands of respondent no.1. The Supreme Court judgment relied upon by learned Magistrate did not give him jurisdiction or authority to summon everybody named in the complaint whether he had a role in the crime or not. The relevant part of judgment Dy. Chief Controller of Imports & Exports v Roshanlal Agarwal and ors (2003) 4 SCC 139, relied upon by the learned MM, reads as under: “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding, and not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v M/s Mohan Meakins Ltd. and Ors. 2000 Crl.L. J. 1799 and after noticing the law laid down in Kanti Bhadra Shah v State of West Bengal 2000 Crl.L. J 1746, it was held as follows: “The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement

imposed on a Magistrate for passing detailed order while

Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 4 Of 8 issuing summons. The process issued to accused cannot

be quashed merely on the ground that the Magistrate had

not passed a speaking order.”

8. It is obvious from this judgment that the learned Magistrate had to satisfy himself that there were sufficient grounds for proceeding against the accused. Allegations were there against the petitioner no.6 indulging in forgery as she was a complainant but there was no material placed before the learned Magistrate as to how the petitioners no.1 to 5 were involved in forgery. The summoning order qua them was thus absolutely bad in law and amounted to gross misuse of judicial powers by learned Magistrate.

9. It is an undisputed fact that the allegations against the petitioner no.6 Mrs. Anuradha Jain are in respect of committing forgery in the court record. Section 195 (1) (b) (ii) Cr.P.C reads as under:

“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No court shall take cognizance-

(a)xxxxx

(i) xxxxxxxxxx

(ii) Of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or “

10. A bar on taking cognizance of offences regarding administration of justice and offences relating to proceedings in any court or offences described in Section 463 or 471, 475 or 476 (when such offences are alleged to have been committed in respect of Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 5 Of 8 documents produced or given for evidence in a proceeding by a Court) has been imposed by Section 195 Cr.P.C and cognizance can be taken only on a complaint made by the concerned court.

11. The alleged offence in this case was directly related to the court record. The allegations made by the petitioners are that efforts were made to tamper the court record and the original complaint (FIR) was replaced by an improved FIR and later on improved FIR was again re-substituted by original complaint. Under these circumstances, I consider that the learned Magistrate could not have been taken cognizance of the offence unless a complaint under Section 340 Cr.P.C had been made by the court in writing on this behalf.

12. Counsel for the respondent drew my attention to Sachitanand v State of Bihar (1998) 1 RCR (Crl.) 823 wherein the Supreme Court observed that the bar contained in Section 195(1)(b) (ii) was not applicable to a case where forgery of document was committed before the document was produced in the court. He also relied upon Jitendra Chandrakant Mehta v M/s Shamrock Impex. Pvt. Ltd. and other C.W. P. No.2198 of 2005 decided on 3rd May, 2006, wherein Bombay High Court observed that bar of Section 195 was not applicable to a case when documents already forged was produced by accused in support of his case.

13. It is not a case where the petitioner no.6 had produced the forged documents in evidence or had filed before the Court some forged documents. In fact, it is a case where allegations made by the respondent no.1 against the petitioner no.6 are that the petitioner no.6 in connivance with the court staff had replaced/ substituted a complaint /FIR with an improved one and again substituted the improved complaint/FIR with the original one and in the meantime he got certified copy of it. In fact, respondent no.1 Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 6 Of 8 himself also had been fiddling with the court record. It would be appropriate to reproduce an order dated 26th November 2009 passed by leaned ACMM which reads as under: “(8) Perusal of record shows that accused is facing trial in a case FIR bearing number 244 of 1995, P.S. Preet Vihar, under Sections 498A/406 IPC. On 28.01.01 Ahlmad Mr. Vijay Kumar Marwa made a written complaint to his presiding officer Ms. Shailener Kaur the then Ld. MM (Mahila Court) Karkardooma Court, Delhi wherein he reported that on the said day accused Rajesh Kumar Jain i.e. the present applicant came for inspection of the case file and while inspecting the judicial file had torn a few pages of the judicial file and thereafter thrown the papers outside the court room. The Ahlmad with the help of Naib Court Vinod was able to retrieve a few papers but the remaining papers could not be retrieved. The matter was reported to the Ld. District and Sessions Judge, Delhi who ordered fact finding inquiry on this issue and Shri Dilbagh Singh, the then ACMM was directed to conduct the inquiry. A detailed inquiry was conducted. The inquiry report was submitted to the Ld. District & Sessions Judge, Delhi. Ms. Shailender Kaur, the then Ld. MM was directed to order for registration of FIR against accused/ applicant Shri R.K. Jain. Accordingly a complaint was made to the Station House Officer, P.S. Anand Vihar and a case FIR bearing number 382 of 2001 under Sections 379 IPC Police Station Anand Vihar was

registered against the accused. The investigation was conducted as per law and the accused was found involved in the commission of offence in the said case, accordingly charge sheet was filed against him and the same is pending trial.”

14. The Court where the trial is going on has already lodged an FIR about missing/ replacement of documents. If there was any effort to fiddle with the court record, it was within the jurisdiction of that court to order an inquiry and proceed against the person responsible for it. The court of another MM who has not been sent a complaint by the trial court cannot be in a position to hold an inquiry into the offence committed in Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 7 Of 8 administration of justice without proper complaint from the court where this has taken place. I, therefore, consider that the learned MM could not have taken cognizance of the complaint filed by respondent no.1.

15. In the result, the petition is allowed and the criminal complaint no.115/2007 under Section 109/120B/466/468 IPC; the summoning order dated 30th November 2007 summoning the petitioners for offences under Sections 109/466/468/120B IPC; the order dated 19th November 2008 issuing NBWs against the petitioner no.3; the order dated 3rd January 2009 issuing process under Section 82 Cr.PC against the petitioner no.3; and proceedings consequent to the criminal complaint no.115 of 2007 pending in the court of Shri Lalit Kumar, MM, Karkardooma Courts, Delhi are hereby quashed.

16. The petition stands allowed.

August 30, 2010 SHIV NARAYAN DHINGRA, J rd

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