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High Court directs police to file perjury under CrPC 340 against wife for filing forged documents

Madras High Court
Karthick vs The Commissioner Of Police on 8 July, 2013
       
In the High Court of Judicature at Madras
Dated   08.07.2013
Coram
The Honourable Mr.Justice R.SUBBIAH
Criminal Original Petition No.14889 of 2013


Karthick							..Petitioner

					..vs..

1. The Commissioner of Police,
    Chennai.

2. The Inspector of Police,
    E-4, Abiramapuram Police Station,
    Chennai-600 028.					..Respondents


	Criminal Original Petition filed under section 482  of Criminal Procedure Code, to direct the 2nd respondent to register an FIR on the petitioner's complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.

	For Petitioner      :  Mr.J.Saravanavel

	For Respondents :  Mr.C.Emalias, A.P.P.,

ORDER

The present petition has been filed seeking for a direction to the 2nd respondent to register a case on the petitioner’s complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.

2. Case of the petitioner, in brief, is as follows:

Petitioner is the husband of one Narayanee @ Krithika. A case in HMOP No.383 of 2007 is pending between the petitioner and his wife before the Family Court at Chennai. In the said petition, apart from other miscellaneous petitions, I.A.Nos.486, 1649 and 2429 of 2010 and 2035 of 2011are pending; of which, I.A.Nos.486 and 1649 of 2010 have been filed by the wife on behalf of the minor child Keerthana to enhance the maintenance and to pay the educational expenses respectively. I.A.No.2429 of 2010 has been filed by the wife to strike off the defence and I.A.No.2035 of 2011 has been filed by the petitioner to revise the order of maintenance. During the said enquiry in the said I.As., on 09.04.2004, 23 documents were filed by the wife Krithika through her power agent Viswanathan and the same were marked as Exs.P-1 to P-23. Among which, Ex.P-16 is a document, which is claimed by the said Krithika to be a document issued by the Regional Passport Officer, Delhi, Ministry of External Affairs, Government of India.

3. It is the further case of the petitioner that the said document is a non-existent and a forged document. The petitioner was informed by the Ministry of External Affairs by a letter dated 10.06.2012 that it seems to be a fabricated/forged document. The petitioner made a complaint dated 04.02.2013 to the 1st respondent seeking to initiate appropriate criminal proceedings for forgery and perjury against Krithika and her power of attorney Viswanathan for having fabricated a document and producing the same before the Family Court as evidence, and the same was forwarded to the 2nd respondent for taking action; but the 2nd respondent did not take any action. Hence, the present petition has been filed to register a case on his complaint.

4. Heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor.

5. It is the case of the petitioner that in a case pending between him and his wife in HMOP No.383 of 2007 before the Family Court, Chennai, his wife marked a document purported to be issued by the Regional Passport Officer, Ministry of External Affairs, Government of India and the same was marked as Ex.P-16. It is the case of the petitioner that the said document is a forged one and, hence, the petitioner had sent an application on 16.04.2012 to the Ministry of External Affairs under RTI Act to verify, whether Ex.P-16 is a genuine document or or not? But the Regional Passport Officer sent a reply dated 10.06.2012 that the document seems to be a fabricated/forged document. That apart, the petitioner had received a reply dated 05.07.2012 from the Regional Passport Officer in response to the RTI Application dated 26.04.2012. The questions raised by the petitioner in his letter dated 26.04.2012 with regard to Ex.P-13 and the answers given by the Regional Passport Officer by his letter dated 10.06.2012 are as follows:

Sl.No.

Questions raised by the petitioner Reply given by the Department

1. Whether this document is issued by you ?

No.

2. If it is issued by you, on what basis you have issued (as my passport comes under regional passport office at Chennai) and also on what basis you have mentioned various contents of the document?

Not issued by this office.

3. Whether you have issued any other document(s) relating to me to Narayanee ?

No. No record is available

6. After getting these answers from the Regional Passport Officer, the petitioner has lodged a complaint with the 1st respondent police to initiate action against his wife and power agent for their involvement in producing a false document before the court, which is punishable under the provisions of Indian Penal Code. The said complaint which was given to the 1st respondent was forwarded to the 2nd respondent and the 2nd respondent, after recording the statement of power agent, has raised a doubt with regard to the jurisdiction of police investigating the offence. Therefore, they have not taken any further action in the matter. On 06.05.2013, the petitioner sent an application under the RTI Act to know about the status of the complaint. But the Inspector of Police, the 2nd respondent sent a reply dated 17.05.2013 to the queries raised by the petitioner. The questions raised by the petitioner and the answers given by the 2nd respondent are as follows:

Sl.No.

Questions raised by the petitioner Reply given by the 2nd respondent

1. Whether FIR has been filed on the said accused – if it is so, in what sections and the present stage of the proceedings on the FIR.

No case registered against the petition dated 04.02.2013 preferred by the petitoner Thiru S.Karthick.

2. If the FIR is not filed the specific reason for the same?

The forgery documents said in the complaint was filed by the counter petitioner in the family court is lies within the compound of the High Court the Court only decide necessary action on this if it is deem fit.

3. Copies of the petition filed by me dated 04.02.2013 ?

Enclosed.

4. Copy of the statement if received from the accused person ?

Enclosed.

By giving the above recorded answers, the 2nd respondent expressed doubts about the jurisdiction of the police to investigate the offence since already the document was marked in the Court. Aggrieved over the same, the present petition has been filed.

7. It is the main submission of the learned counsel for the petitioner that the 2nd respondent is having jurisdiction to entertain the complaint and investigate the same since the document was created outside the court and thereafter, filed and marked in the court proceedings.

8. Per contra, it is the submission of the learned Additional Public Prosecutor that under section 195(1)(b((ii) Cr.P.C. will operate as a bar for the police to entertain the complaint since the document was already marked in the court proceedings. The only option available to the petitioner is to invoke section 340 of Cr.P.C.before the concerned court.

9. In view of the arguments advanced by both sides, the core question that has to be considered is, whether the police authorities can register a case for creating a forged document, which was allegedly marked in the course of evidence before the Court ?

10. The judgment relied on by the learned counsel for the petitioner reported in (2005) 4 SCC 370 (Iqbal Singh Marwah and another .vs. Meenakshi Marwah and another) is giving a fitting answer for this issue. The factual aspects of the cited case would show that in a probate proceedings, the petition was contested by the respondents on the ground that the Will was forged. Hence, the respondents moved an application before the court concerned requesting the court to file a criminal complaint against the appellants. A reply to the said application was filed on 27.07.1994; but the said application was not disposed of. Hence, the respondents filed a criminal complaint before the court of Chief Metropolitan Magistrate, New Delhi for prosecution under sections 192,193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the appellants and their mother on the ground that the Will produced by the appellants was a forged and fictitious document. The learned Metropolitan Magistrate held that the question whether the Will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the Will had been filed, Sections 195(1)(b)(i) and (ii) Cr.P.C. operate as a bar for taking cognizance of the offences under sections 192, 193, 463, 464, 471, 475 and 476 IPC. The complaint was accordingly dismissed by order dated 02.05.1998. Subsequently, the respondents in that case filed a criminal revision against the order of learned Metropolitan Magistrate before the Sessions Court, who relying upon the case of Sachida Nand Singh .vs. State of Bihar reported in (1998) 2 SCC 493, held that the bar contained in section 195(1)(b)(ii) would not apply where forgery of a document was committed even before the production of the said document in the Court. The revision petition was accordingly allowed and the matter was remanded to the Court of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Sessions Judge by filing a petition under section 482 Cr.P.C. before the Delhi High Court, but the same was dismissed. Aggrieved over the same, the appellants preferred S.L.P. before the Hon’ble Supreme Court, wherein it has been observed as under:

“25. 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.

26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:

“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to haver been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong”.

………..

33. In view of the discussion made above,we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in cutodia legis.”

11. Therefore, a reading of the said paragraphs would clearly show that section 195(1)(b)(ii)Cr.P.C.will not operate as a bar to entertain the complaint by the police where forgery of the document was committed even before the said document was produced in the Court. In the instant case, it is the specific allegation of the complainant that the document was fabricated outside the Court and marked during the course of proceedings. Therefore, in my considered opinion, the respondents are having jurisdiction to entertain the complaint.

In view of the above reasons, the second respondent is directed to consider the complaint and if the allegations contained in the complaint discloses the commission of any cognizable offence, the second respondent is directed to register the case, investigate the same and proceed further in accordance with law. Criminal Original petition is disposed of accordingly.

Index: Yes.							08.07.2013
Internet: Yes.
gl
To
1. The Commissioner of Police,
    Chennai.

2. The Inspector of Police,
    E-4, Abiramapuram Police Station,
    Chennai-600 028.

3. The Public Prosecutor,
    High Court, Madras.







																			R.SUBBIAH, J.,
Categories: Judgement

Suppression of fact by wife to claim maintenance from husband attracts CrPC 340

Madras High Court
P. Murugesan vs B. Gokila on 21 March, 2013
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:   21.03.2013

CORAM:

THE HONOURABLE MR.JUSTICE S.PALANIVELU

Criminal Revision Case No.1262 of 2012







P. Murugesan							.. Petitioner

Vs.

B. Gokila							.. Respondents
    

PRAYER: Criminal Revision case filed under Section 397 & 401 of the Code of Criminal Procedure, to call for the records  in M.C.No.22 of 2007 on the file of the learned Judicial Magistrate,  Mettupalayam, Coimbatore and set aside the order passed in Crl.M.P.No.4334 of 2012 on 24.08.2012.  





		For Petitioner  : Mr.R. Murugesan
				  Party in person

		For Respondent  : Ms. Kavitha 
				  for
				  M/s PVS Giridhar Associates
					   
					

ORDER

The following are the allegations contained in the Protest Petition filed by the petitioner:

The Court below has directed the Inspector of Police, Sirumugai Police Station, to investigate the private complaint filed by the petitioner. But the police did not file any report even though the petitioner sent two letters dated 19.6.2012 and 26.07.2012 which were received on 26.6.2012 and 28.7.2012 alongwith the above said private complaint copy and marriage registration certificate of respondent. The respondent has re-married on 25.02.2010 but on 11.11.2011 during the cross examination she told that she has not remarried. Hence, the Court may be pleased to direct the police to re-open and re-investigagte the matter or direct the CBCID to investigate the complaint and file report.

2. Judicial Magistrate, recorded sworn statement of the petitioner and dismissed the petition stating that on going through the records and sworn statement, the only offence made out is under Section 193 IPC., that according to Section 195 Cr.P.C. this petitioner has no locus standi to file this complaint under Section 193 I.P.C. and hence the petition is not maintainable.

3. The petitioner/party-in-person would contend that inasmuch as the Court below has found that the respondent has committed offence u/s 193 I.P.C., even though it is of the view that the petitioner has no locus standi to lodge the complaint, there is no legal impediment for the Court below to prefer complaint against the respondent when adequate materials were available before the Court and without lodging complaint before the concerned Court, dismissing the petition is not sustainable.

4. Contending contra, the learned counsel appearing for the respondent Ms.Kavitha would submit that as per the finding rendered by the Court below, the petitioner has no locus standi to point out anything on the part of the respondent so as to make her accused, that by means of which he could not make any complaint and in this regard there is no legal infirmity found in the order passed by the Court below.

5. The petitioner says that the respondent wife was divorced and she re-married on 25.2.2010 in Arulmigu Subramaniaswamy Thirukkoil, Pachaimalai-Modachur, Erode District for which he has produced copy of the Marriage Certificate issued by the Executive Officer of the said Temple. He also adds that she is having a male child aged 1= years. Suppressing the fact, she is continuing the maintenance case. While she was examined in cross on 11.11.2011 in MC Case No.22/07 before the learned Judicial Magistrate, Mettupalayam, she has stated that she has not contacted second marriage. But when she was examined in the same court on 31.08.2012, she admitted that after divorce she contacted second marriage and her husband’s name is Arjunan, that after the said marriage she is having a male child aged 1 year 3 months. If it is so, while she deposed earlier on 11.11.2011 her child should have been aged 5 months. It is consciously admitted by her that the child was born out of the second marriage. Hence, it is manifest that she has given a false statement on 11.11.2011 as to her marriage that she has not married for the second time.

6. Significantly it is to note that she has made false statements while she was examined before the same Court in M.C.No.22 of 2007, i.e., Judicial Magistrate, Mettupalayam. Taking advantage of this situation, the petitioner has come forward with this claim.

7. The petitioner relies upon an unreported order of mine in M.P.SR.No.39639 of 2011 in Crl.O.P.No.18268 of 2011 dated 3.4.2012 wherein I have followed the decision of the Supreme Court reported in 2003 (1) Crimes 235(SC)=AIR 2003 SUPREME COURT 541= (2003) SCC 76 [N.Natarajan v. B.K.Subba Rao] wherein Their Lordships have observed as follows –

9……. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wordings of Section 340CrPC are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. Therefore, it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has locus standi to present the complaint before the Designated Judge.”

8. In the said case, I have followed the principles laid down by the Honourable Supreme Court and observed that in view of the above ratio, it is the contention of the learned counsel for the petitioner that the petitioner has got locus standi to file the application.

9. In the above stated case, I have also followed a decision of this Court in 1908 MLJ VOL XIX [Aiyakannu Pillai v. Emperor] wherein it is held that a complaint can be presented at any time subject to the law of limitation, an order under Section 476 (I) can be made at any time (the old provision for Section 340 Cr.P.C. is Section 476). In the said case I reached a conclusion that the petitioner in that case has locus standi to file the application.

10. The petitioner also placed reliance upon N.Natarajan’s case (supra) wherein Their Lordships have held as follows:

“It is well settled that in criminal law a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 195 CrPC there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 CrPC is invoked to get over the bar imposed underSection 195 CrPC. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wording ofSection 340 CrPC is significant. The court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed, covered by the said provision.”

11. He also cited another latest Supreme Court judgment on this point reported in 2012 (1) CTC 184 [Abdul Rehman & Others v. K.M.Anees-ul-Haq] wherein Their Lordships have thoroughly analysed all the relevant judgments and directed to transfer the criminal case filed by the husband to the Court of competent jurisdiction.

12. The learned counsel for the respondent cited a decision of Supreme Court reported in AIR 1978 SC 1753 [Dr. S.P.Kohli v. The High Court Punjab and Haryana] wherein Their Lordships have held as under:

“Further, it is well settled that prosecution for perjury should be sanctioned by Courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well recognized that there must be a prima facie of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.”

13. In AIR 1971 SC 1367 [Chajoo Ram v. Radhey Shyam and another] it is held thus:

“7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. “

14. The learned counsel for the respondent cited a portion of the decision in N.Natarajan’s case (supra) which is as follows:

“Private complaint indulging in vexatious litigation based on hald-baked knowledge of law wasting time of court should be restrained in the interest of administration of justice from filing similar applications. If still he persists, such application/complaint should be dismissed at limine and appropriate proceedings be initiated against him.”

15. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur] it is held thus:

“4. As is plain from the aforesaid stances adopted by the parties, they are out for personal vendetta. It is a settled principle of law that courts never become tools at the hands of the parties to satisfy private vendetta or to take up cudgels on behalf of one party and punish the other. The primary object to take proceedings under Section 340 of the Code of Criminal Procedure, in instituting a complaint for giving false evidence, is to curb the evil of perjury and to keep the flow of proceedings in courts unsullied and pure. It is only in a rare case, when the Court comes to the conclusion that if the complaint is filed conviction is more or less a certainty, that it chooses to become a complainant. In such like contentious issues, when the wife can again indulge in proving that the husband was wrong and she was right, it is not expedient for this Court to enter into the fact and become a complainant at the behest of the husband-petitioner. Thus, I am of the considered view that it is not expedient to pursue the matter any further at the instance of the parties.”

16. Armed with the above said decisions, the learned counsel for the respondent would submit that it is not for the petitioner to set the law in motion as far as the untenable claim is concerned and as per the decision of the Punjab and Haryana High Court [Jaswinder Singh’s case] the Courts never become tools at the hands of the parties to satisfy private vendetta to take up cudgels on behalf of one party and punish the other. She also states that as far as the contention of the petitioner is concerned, it is only to harass the respondent.

17. From the evidence of the respondent is has come to light that before the same Court she has taken different stands as to her marriage and the finding of the Court below that only offence made out against the first respondent is under section 193 I.P.C.is appropriate. Hence, as per the dictum laid down by the Honourable Supreme Court in N.Natarajan’s case it is incumbent upon the Magistrate to proceed with Section 340 Cr.P.C.as per the procedure laid down in the provision. In such a view of the matter, this Court is of the view that the learned Judicial Magistrate has to be directed to act in accordance with law as per Sections 195 and 340 Cr.P.C.

18. In fine, the revision is allowed directing the learned Judicial Magistrate, Mettupalayam to prefer complaint against the respondent and to act in accordance with Sections 195 and 340Cr.P.C. The learned Judicial Magistrate is also directed to dispose of the Maintenance Case within one month from the date of receipt of copy of this Order.

ggs To The Judicial Magistrate Mettupalayam Coimbatore

Categories: Judgement

withdrawal of consent on the second motion by wife does not amount to perjury

Punjab-Haryana High Court
Gagan Sethi vs Shilpa Sethi on 9 October, 2012
CRA No.S-2467-SB of 2012
                                                                         -1-

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                 CRA No.S-2467-SB of 2012 (O&M)
                                 Date of decision: 09.10.2012

Gagan Sethi
                                                                ....Appellant
                       Versus

Shilpa Sethi
                                                            ....Respondent

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

Present: -     Mr. H.S. Dhindsa, Advocate, for the appellant.
               *****

PARAMJEET SINGH, J.

Crl. Misc. No.50229 of 2012 For the reasons stated, application is allowed. Delay of 18 days in refiling the appeal is condoned.

Crl. Appeal No. S-2467-SB of 2012 The instant appeal has been filed against the order dated 26.05.2012 passed by learned Additional Sessions Judge, Ludhiana in an application underSection 195/340 Cr.P.C. moved in proceedings under Section 13-B of the Hindu Marriage Act (hereinafter called ‘the Act’).

Brief facts of the case are that the appellant and the respondent filed a petition under Section 13-B of Act for dissolution of marriage between the parties by way of mutual consent in the Court of learned District and Sessions Judge, Ludhiana, which was entrusted to the learned Additional District Judge. Before passing of the decree of divorce, respondent withdrew her consent and did not make a statement after the lapse of statutory period of six months for consent divorce CRA No.S-2467-SB of 2012 under Section 13-B of the Act. On that score, appellant filed an application under Section 195/340 Cr.P.C. for initiating proceedings against respondent – Shilpa Sethi for resiling from her statement made in the proceedings under Section 13-B of the Act at first motion. Learned Additional District Judge, Ludhiana, after appreciating the evidence, declined the application of the appellant under Section 195/340 Cr.P.C. Hence this appeal.

I have heard the learned counsel for the appellant and perused the record.

The learned counsel for the appellant was specifically asked how this appeal is maintainable against the order passed on an application under Section 195/340 Cr.P.C. Then the learned counsel for the appellant stated that this be treated as a petition under Section 482 Cr.P.C. Accordingly, the present appeal is treated as petition under Section 482 Cr.P.C.

Admittedly, petitioner and respondent have filed a petition under Section 13-B of the Act for dissolution of marriage between them by way of mutual consent. In this regard, even the statements of the parties were recorded on the first motion on 10.5.2010 and petition was adjourned to 15.11.2010 for cooling off the period of six months for recording the statements of the parties on the second motion. However, on the adjourned date, respondent made a statement that she was withdrawing her consent for mutual divorce and stated that she did not want to divorce and she had never entered into alleged compromise.

The learned counsel for the petitioner argued that respondent cannot withdraw her consent and it amounts to perjury on CRA No.S-2467-SB of 2012 behalf of the respondent.

I have considered the contention raised by the learned counsel for the petitioner.

It is to be seen whether consent once given during the proceedings under Section 13-B of the Act by either of the parties can be withdrawn at any stage or atleast before passing of the final decree of divorce. In the light of this, the following question arises for consideration of this Court:

“Whether withdrawal of consent on the second motion by wife amounts to making false statement and resiling from the statement amounts to cheating?”

In my opinion either of the parties can withdraw her/his consent given at the first motion in a proceeding under Section 13-B of the Act. The statutory cooling off period of six months is for that purpose so that parties may reconsider whether it is in their interest to go for mutual divorce. After considering the pros and cons either of the parties has option to withdraw the consent given at the first motion.

The specific period is granted with a purpose to the parties to think over the matter with regard to the mutual divorce. There is nothing specific in Section 13-B of the Act, which may compel either of the party to make a statement accepting the statement made at the first motion. There is no bar under any of the provisions of the Act debarring either of the parties to withdraw his/her consent. The parties can very well withdraw the mutual consent at any stage prior to the passing of the decree of divorce specifically when they come for second motion.

In the present case, respondent-wife has withdrawn the CRA No.S-2467-SB of 2012 consent at the second stage. The issue of withdrawal of consent at the second motion has been considered by the Hon’ble Supreme Court in the case of Sureshta Devi vs. Om Parkash (1991) 2 SCC 25 and it was held that a party can unilaterally withdraw the consent at any time till the passing of the decree of divorce.

The Hon’ble Supreme Court in para 13 in the case of Sureshta Devi (supra) has held as under: –

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-

section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is CRA No.S-2467-SB of 2012 that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

Further the Hon’ble Supreme Court in the case of Hitesh Kumat Bhatnagar vs. Deepa Bhatnagar, 2011 (5) SCC 234 has also considered the issue whether the consent can be withdrawn and declared the law as under: –

“14. The language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;

(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and

(c) The petition is not withdrawn by either party at any time before passing the decree.

In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any CRA No.S-2467-SB of 2012 time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.

15. In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen-month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant.”

In view of the above position, I do no find any ground to interfere with the impugned order passed by the learned Additional Sessions Judge, Ludhiana.

Dismissed in limine.

(Paramjeet Singh) Judge October 09, 2012 R.S.

Categories: Judgement

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

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

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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Categories: Judgement

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

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

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 ?

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

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.

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

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.)

Categories: Judgement

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)

Categories: Judgement

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 –

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(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

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(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-

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(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.

Categories: Judgement