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Supreme Court Of India- No one should indulge in immoral acts like perjury, prevarication and motivated falsehoods : 2 weeks Jail

October 19, 2012 Leave a comment

Supreme Court of India

 

 

Chandra Shashivs Anil Kumar Verma on 14 November, 1994
Equivalent citations: 1995 SCC (1) 421, JT 1994 (7) 459
Bench: H B.L.

PETITIONER:

CHANDRA SHASHI

Vs.

RESPONDENT:

ANIL KUMAR VERMA

DATE OF JUDGMENT14/11/1994

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

KULDIP SINGH (J)

CITATION:

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

1994 SCALE (4)944

ACT:

HEADNOTE:

JUDGMENT:

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

required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.

2.Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.

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

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

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

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

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

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

.LM15

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

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

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

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

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

426

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

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

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

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

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

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

427

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

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

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

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

6 (1993) 2 SCC 533

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

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

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

18. The proceeding stands disposed of accordingly. 433

Madras HC- CrPC 340 Prejury Citation

October 13, 2012 Leave a comment

Madras High Court

Advocates … vs Dr. A.S. Anand, Hon. The Cji And Anr on 14 February, 2001
Author: Thomas
Bench: K Thomas, R Sethi, B Agrawal.

CASE NO.:

Writ Petition (civil) 77 of 2001

PETITIONER:

MADRAS HIGH COURT ADVOCATES ASSOCIATION

Vs.

RESPONDENT:

DR. A.S. ANAND, HON. THE CJI AND ANR.

DATE OF JUDGMENT: 14/02/2001

BENCH:

K.T. Thomas, R.P. Sethi & B.N. Agrawal.

JUDGMENT:

L…I…T…….T…….T…….T…….T…….T…….T..J

Thomas, J.

Heard the petitioner Mr. Karuppan who argued in person.

This writ petition is filed under Article 32 of the Constitution of India to determine the age of the present Chief Justice of India Dr. Justice A.S. Anand by declaring that he was born on 1.11.1934, and then to declare that he had attained the age of superannuation on 31.10.1999 and consequently to issue a writ of quo warranto against him.

The petitioner is described as the Madras High Court Advocates Association. The writ petition is filed by R. Karuppan as petitioner-in-person who has also sworn to an affidavit stating that the facts contained in the writ petition are true to his knowledge and that no part of it is false and nothing material is concealed therefrom.

In the meanwhile, the Registry of this Court received a petition from some persons describing themselves to be the members of the Madras High Court Advocates Association which is signed by 76 persons who claim to be members of the said Association. In that petition it is stated that Madras High Court Advocates Association had not taken any decision to file any Writ Petition or to initiate any other proceedings against the Chief Justice of India. It is requested therein that the Supreme Court shall not entertain any petition filed by Sri R.Karuppan either on behalf of the Madras High Court Advocates Association or using his name as President of the said Association.

We do not propose to take any heed to the said petition, as the same has not been properly filed in this Court. We proceed to consider the Writ petition, as we may assume that this Writ Petition was filed by Sri R.Karuppan on behalf of the said Association. Even otherwise since Sri R.Karuppan is entitled to file a Writ Petition on his own in his individual capacity as well, we are bound to consider it judicially.

After reading the averments and the reliefs prayed for in the writ petition and after hearing the arguments made at length by Mr. Karuppan in support of them, we have no hesitation to say that this writ petition is an abuse of the process of the court. Apart from the non-disclosure of what fundamental right of the petitioner has been infringed or to be enforced through this writ petition, it is a reckless action to malign and scandalise the highest judicial institution of this country.

The writ petition contains many statements which are ex facie false. Petitioner knows very well that the President of India has determined the dispute in 1991 concerning the age of Dr. Justice A. S. Anand even when he was judge of a High Court. We asked Mr. Karuppan to show us the document which he came across for making the demand that the date of birth of Dr. Justice A.S. Anand should be declared as 1st November, 1934. In spite of repeatedly putting the question he was not able to point out even one paper in which the date of birth of the first respondent is shown as 1st November, 1934. On the other hand, we invited the attention of the petitioner to a document which he produced as the true copy of the matriculation certificate issued by the Registrar of the University of Jammu and Kashmir on 1.9.1951. That certificate has shown without the slightest ambiguity that the date of birth of first respondent is 1.11.1936. We pointed out to the petitioner that he has affirmed in his own affidavit sworn to by him that the said document is the true copy of its original. To the query the petitioner had nothing to answer. We were anguished at the temerity by which he has chosen to approach this Court for seeking a declaration that a high Constitutional functionary like the CJI was born on 1st November, 1934, about which he has no knowledge, nor even a scrap of paper. Then why did he file this writ petition?

When the same R. Karuppan, Advocate, argued in this Court in defence of a contemnor S.K. Sundaram (against whom contempt proceedings were initiated pursuant to his sending a telegram asking the Chief Justice of India to step down from office on the ground that he had already attained the age of 65, and then his filing a criminal complaint against the CJI) this Court by its Judgment dated 15.12.2000 pronounced in unmistakable terms thus:

Once the age of Dr. Justice A.S. Anand was so determined by the President of India in exercise of his constitutional authority, in whom alone is the power reposed to determine the question of the age of a judge of the High Court, it was not open to this contemnor to raise this question over again and again. When this contemnor once again raised the question of the age of Dr. Justice A.S. Anand, in the year 1999, the Government of India issued a press communication which, after referring to the earlier proceedings adopted by the President of India, has stated thus: This plea was again rejected on the ground that there was no basis for reopening the matter. The decision of the President is final under Article 217 of the Constitution.

Now Mr. Karuppan made averments in the present writ petition that the petitioner submits that the dispute which has arisen as early as in 1991, undetermined by the President and the operation of Article 217 is still operative and within the jurisdiction of the President. He further averred that the petitioner submits that the conduct of the President of India, ever since the controversy arose till date only proves that the dispute has never been determined by him or his predecessor. He further averred that the press note released by the Government of India to the Press Information Bureau on 23rd October, 2000, reached the notice of the petitioner only after 23.11.2000. In the context of this statement he concealed the fact that copy of the said press note was included in the files of the contempt proceedings initiated against S.K. Sundaram as early as 7.11.2000. Mr. Karuppan admitted before us that he himself appeared in this Court as Advocate for S.K. Sundaram on 20.11.2000.

The above averments are ex facie false and they are stated in the writ petition by R. Karuppan knowing them to be false.

We dismiss this writ petition in limine.

In our view the deponent Mr. R. Karuppan had made the above false statement in the writ petition intentionally for the purpose of being used in the judicial proceeding. We, therefore, require him to show cause why prosecution proceedings shall not be initiated against him for offence under Section 193 of the Indian Penal Code. If his explanation does not reach this Court before 28.2.2001, we would treat that he has no explanation to offer in the matter. Further action on this will be decided after 28.2.2001.

( K.T. Thomas )

( R.P. Sethi )

( B.N. Agrawal )

New Delhi;

February 14, 2001.

All that he could point out was a letter purported to have been written by one S. Behr to a solicitors firm Sohal & Co. in which a mention is made that Adarsh Sein Anand was enrolled as a student member of Inner Temple on 4.1.1962 and at that time he gave his year of birth as 1934. At the same time the petitioner produced a letter written by the Chairman of the Bar of England and Wales dated 2.11.2000 in which the said Chairman has written in unambiguous language that Inner Temple records show that the date of birth of Adarsh Sein Anand is 1st November, 1936, which was the date given by A.S. Anand in a form in his own hand writing bearing his signature.

Supreme Court- Parties coming with unclean hands to face appropriate Legal Action

October 13, 2012 Leave a comment

Since the appellant has not approached the quasi judicial and judicial forums i.e., the Additional Commissioner, the High Court and this Court with clean hands and succeeded in securing interim orders, it is ordained to pay costs, which is quantified at Rs.2 lacs.

 

 

Supreme Court of India

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7982 OF 2002

Oswal Fats and Oils Limited ……..Appellant

Versus

Additional Commissioner (Administration),

Bareilly Division, Bareilly and others …….Respondents

JUDGMENT

G.S. Singhvi, J.

1. Feeling aggrieved by refusal of the learned Single Judge of Allahabad

High Court to quash orders dated 24.5.1993 and 30.5.2001 passed by

Collector, Pilibhit (for short, `the Collector’) and Additional Commissioner

(Administration), Bareilly (for short, `the Additional Commissioner’)

respectively under the U.P. Zamindari Abolition and Land Reforms Act,

1950 (for short, `the Act’), declaring that 27.95 acres land purchased by the

appellant in Shahi and Khamaria Pul villages of District Pilibhit shall vest in

the State Government, the appellant has filed this appeal. 2

2. The appellant is a company incorporated under Section 149(3) of the

Companies Act, 1956. In 1991, the appellant decided to set up agro based

paper projects in the State of U.P. By resolution dated 14.10.1991, the

Board of Directors of the appellant authorised Shri Kamal Oswal (Director),

Shri T.R. Sharma (General Manager) and Shri Jai Prakash Kaushal

(Authorised Signatory) to negotiate and finalise purchase of land in the State

of Uttar Pradesh and/or other States and Union Territories, to sign sale deeds

etc. for effective acquisition/transfer of land. Paragraphs (e) and (f) of that

resolution read as under:

"To sign for and on behalf of the company all sales deeds conveyance deeds, Intkals, Mutations and other documents necessary for the effective acquisition/transfer of the land in the name of the company and for this purpose to appear for and on behalf of the company before any court of law, Tehsildar, Naib Tehsildar, Patwari, Registrar, Sub Registrar of any other land transferring authority.

And to do all other acts, things and deeds for and on behalf of the company which any of the above noted persons in the discharge of their lawful duties consider proper and in the best interest of the company."

3. Soon thereafter, an application dated 24.10.1991 was submitted on

behalf of the appellant to Joint Director of Industries, Bareilly Zone, Bareilly

for grant of permission under Section 154(2) of the Act for purchase of land 3

in excess of 12.5 acres. The relevant portions of that application are

extracted below:

"Our Company is proposing to set up a 100 TPD (Gross) Agro based paper project in area adjoining villages of Shahi Kamariapul, Adhkata Nazrana. For this project we require about 200 Acres of land out of which about 50 Acres shall be in Pilibhit District and about 150 Acres in Nawabganj Tehsil of Bareilly District.

The proposed paper project shall utilise Agricultural wastes such as wheat Straw, Rice Straw and Bagasse etc. as the main raw materials. The project shall generate direct employment opportunities for about 750 persons and for many more indirectly. The project shall be of special benefit to the people living in the areas near the site.

We through this letter are applying to your office for the permission under section 154 of ZALR Act for purchase of land in excess of 12.5 Acres for industrial purpose. We are enclosing two additional copies of this letter. We are also enclosing the site plan, recommendations of Technical Consultants for your ready reference.

We shall be pleased to furnish any other information required by you in this connection. We wish to bring to your kind notice that we plan to start the purchase of land for this project from next month i.e. Nov. 1991."

4. However without waiting for response of the concerned authority, the

appellant purchased 40.45 acres land in Shahi and Khamaria Pul villages,

Pargana Jahanabad, Tehsil and District Pilibhit through different sale deeds

executed between January and April, 1992.

4

5. The State of Uttar Pradesh challenged transfer of various parcels of

land in favour of the appellant by filing identical suits under Sections 154,

167, 168A and 194 of the Act. The transferors, who were impleaded as

parties in all the suits did not contest the same. However, the appellant filed

identical written statements in all the cases. In first paragraph of the written

statement filed in Suit No.133 of 1993, the appellant admitted all the

paragraphs of the suit. In the additional statement, the appellant virtually

conceded that the land was purchased in contravention of the Act and stated

that it may be allowed to retain 12.5 acres out of the disputed land. This is

evinced from English translation of paragraphs 2 to 4 of the written

statement which are reproduced below:

"2. That all the lands of both the village had been purchased for establishment of Industry after making the payment to the farmers. But I had the knowledge of law in Punjab and was not well conversant with the provisions of U.P. Zamindari Abolition Act therefore, I purchased the land in question which is more than 12 acres. We had given an application dated 24.10.1991 to the State Government for the permission of establishment of Industry and only thereafter we started purchasing the land without waiting for the permission from the Government because we had the belief that permission will be granted to us for establishment of Industry.

3. That we filed application for mutation of whole of the land under the sale and all of them had been accepted and we continued the purchasing of land because we had the belief that we are not violating any provision of Zamindari Abolition Act. 5

4. That the details of land which we want to keep for the establishment of factory, measuring twelve and a half acres out of the disputed land, are being given in the succeeding paras and we have no objection for any legal action with regard to the remaining land."

The particulars of the land suit sought to be retained by the appellant

were given in the affidavit of Shri T.R. Sharma. A sketch map showing

those khasra numbers were also filed with the written statement.

6. By an order dated 24.5.1993, the Collector declared that the purchase

made by the appellant in excess of 12.50 acres is against the provisions of

Sections 154/167 of the Act and that it will be entitled to retain only 12.50

acres and the remaining land measuring 27.95 acres would vest in the State

Government. The relevant portion of the order passed by the Collector is

extracted below:

"I have heard the arguments of Government Counsel (Revenue) for State and the learned counsel for M/s. Oswal Fats and Oil Limited and perused the records. After hearing the arguments of both the parties and the perusal of records, I have reached on the conclusion that the defendants M/s. Oswal Fats and Oil Limited, New Delhi have purchased the total land measuring 40.45 Acres in Village Shahi and Khamaria Pul, Pargana Jahanabad, Tehsil and District Pilibhit, as detailed above. However as per the provisions of Section 154/167 of Jamindari Abolition and Land Management Act, they can possess only 12.50 Acres land. Therefore, the transfer of remaining land measuring 27.95 Acres, which is in excess than 12.50 Acres, is against the provisions of Section 154/167 of Z.A. Act. The 6

defendant Company Oswal Fats and Oil Limited has also given the option for 12.50 Acres land, in their affidavit. Therefore, the remaining land except the 12.50 Acres land mentioned in the Affidavit dated 19.05.93 is liable to be merged into the State."

7. The appellant questioned the order of the Collector by filing revision

under Section 333 of the Act. In the memo of revision, it was claimed that

excess land was purchased under the belief that the State Government would

grant permission under Section 154(2). It was then urged that although the

Board of Directors had given power to Shri T.R. Sharma to appear before

any court of law on behalf of the appellant, he was not authorized to enter

into a compromise or give consent for retaining the particular land. Another

plea taken by the appellant was that the company consists of 8 directors and

if each Director is entitled to have a share of 12.5 acres, the purchase made

by the appellant will not exceed the prescribed limit. However, at the

hearing of the revision petition, the plea that Shri T.R. Sharma had filed

written statement and affidavit beyond the scope of his authority appears to

have been given up and it was submitted that the general manager had been

authorised to pursue the case but he did not do it properly. The Additional

Commissioner dismissed the revision of the appellant and confirmed the

order of the Collector by recording following reasons: 7

"It is clear from the perusal of records that the defendants themselves have admitted in their objections filed before the court below that the land in question had been purchased for establishment of Industry and purchased the land more than 12.50 acres intentionally. They have also given the details of land which they want to keep with them and agree for merging of remaining land into the State. Revisionist has stated that they had given an application for obtaining the permission and it has also been admitted that they had purchased the land in excess than 12.50 acres without waiting for the permission. In these circumstances, the court below has correctly passed an order for merging of 27.95 Acre land into the State, which is in excess than the 12.50 acres land and this order does not require any intervention. Therefore, the Revision, being devoid of merits, is liable to be dismissed."

8. The appellant challenged the orders of the Collector and the

Additional Commissioner in Writ Petition No.25819/2001 by taking up the

position that Shri T.R. Sharma was not authorised to enter into a

compromise or to make a statement relinquishing the land in favour of the

State Government. It was also pleaded that the appellant was entitled to

purchase land in excess of 12.50 acres because its case is covered by the

explanation appearing below Section 154(1) of the Act.

9. The learned Single Judge rejected the argument on the issue of lack of

authority of Shri T.R. Sharma to indirectly admit violation of Section 154(1)

of the Act and to agree to surrender excess land by making the following

observations:

8

"It is apparent on face of record that petitioner Company has no authorization either general or special to hold land in excess of 12.50 acres by State Government. Indisputably the petitioner Company is not a Co-operative Society registered under the Co- operative Societies Act nor petitioner Company is established for charitable purposes. Nothing is brought to my notice that the present Company is established in the interest of general public. Contrary to it, there are overwhelming materials on record and also from attending circumstances it is inferable that the petitioner Company is an establishment established with profit orientation for its shareholders. It is pertinent to mention here that the petitioner Company has not produced its certificate of registration under the Companies Act. During the course of argument articles of association of Nuskar Enterprises Ltd. is produced by the learned counsel for the petitioner. It is not understandable as to why the certificate of registration under the Companies Act is not produced before the Court. It is also not understandable as to how the Articles of Association of Nuskar Enterprises Ltd. has nexus with the petitioner Company. I am of the view that even if the affidavit dated 19.5.1993 (Annexure-7 to the writ petition) of the General Manager of the petitioner Company giving consent to relinquish the land in excess of 12.50 acres in favour of State Government is ignored even then the findings of respondents No.1 and 2 are sustainable for the reasons given hereinabove."

The learned Single Judge then referred to the provisions of Sections

152, 154, 166 and 167 of the Act and held that the purchase made by the

appellant in excess of 12.50 acres was illegal per se and its case does not fall

within the ambit of the exceptions carved out in sub-section (2) of Section

154. The learned Single Judge rejected the appellant’s plea that surrender

made by Shri T.R. Sharma was unauthorized and held that the Collector did 9

not commit any illegality by declaring that excess land will vest in the State

Government. Simultaneously, he gave a direction to the Chief Secretary to

ensure that possession of the excess land is taken by the Government free

from all encumbrances without any delay.

10. At this stage, we may mention that during the pendency of the suits

filed by the State Government before the Collector, the appellant instituted

Suit No.25/1992-93 under Section 143 of the Act, which was disposed of by

Pargana Adhikari, Pilibhit vide her order dated 12.7.1993 by declaring that

7.97 acres land purchased by the appellant in Tehsil and District Pilibhit was

non-agricultural land.

11. Shri Manoj Swarup, learned counsel for the appellant argued that the

order passed by the Collector was vitiated due to violation of the basics of

natural justice inasmuch as the concerned officer did not give reasonable

opportunity to the appellant to defend its case on the issue of alleged

violation of Section 154 of the Act and the Additional Commissioner and the

learned Single Judge gravely erred in confirming/upholding the order of the

Collector. The learned counsel further argued that Shri T.R. Sharma, who

was holding the post of General Manager was not authorised to make any 10

concession on behalf of the appellant or give consent for surrendering 27.95

acres land on the ground that the purchase of land was made in violation of

mandate of Section 154 and the Collector was not at all justified in acting

upon the concession made by Shri T.R. Sharma. Learned counsel then

referred to Section 154 of the Act and submitted that the embargo contained

in that section is not applicable to the appellant’s case because purchase

made by a company does not fall within the ambit of that section. The

learned counsel reiterated the plea that if each director of the company is

held entitled to purchase 12.50 acres of land, the purchase of 40.45 acres

land by the appellant cannot be treated as violation of Section 154(1). He

lastly argued that even if transfer of land in favour of the appellant is held to

be contrary to the mandate of Section 154(1), the Court may direct the State

Government to accord post facto sanction in terms of sub-section (3) of

Section 154 which was inserted by an amendment dated 24.3.2005.

Learned counsel also criticized the direction given by the High Court to the

Chief Secretary to take possession of the excess land and submitted that

while deciding the writ petition filed by the appellant against the orders of

the Collector and the Additional Commissioner, the learned Single Judge

was not justified in treating the case as a public interest litigation. 11

12. Shri T.N. Singh, learned counsel appearing for the respondents

supported the impugned order and argued that the Collector did not commit

any error by declaring that the excess land will vest in the State Government

because the purchase was made by the appellant without obtaining

permission in terms of Section 154 of the Act. Learned counsel relied upon

the averments contained in the written statement filed on behalf of the

appellant in Suit No. 133/1993 and argued that after having indirectly

admitted contravention of Section 154(1) of the Act, the appellant did not

have the locus to challenge the orders of the Collector and the Additional

Commissioner on the ground that Shri T.R. Sharma was not authorized to

give option for retaining the particular parcels of land and the learned Single

Judge rightly held that the transfers made in violation of Section 154 were

null and void.

13. Before dealing with the respective arguments/submissions, we

consider it appropriate to note that after one year and five months of passing

of order by the Collector, the appellant and the State Government entered

into a lease agreement dated 15.10.1994 whereby the latter agreed to give

excess land measuring 27.95 acres, the details of which were given in

Schedule `A’ appended to the agreement, to the appellant on lease for a 12

period of 30 years at an yearly rent of Rs.281.05. The lease agreement was

signed on behalf of the appellant by Shri Kamal Oswal, Director and Shri

J.P. Kaushal, General Manager (Liaison). In the lease agreement, a copy of

which has been annexed as Annexure CA-1 with the counter affidavit filed

on behalf of the respondents in this Court, the lessee i.e., the appellant

candidly admitted that transfers made in its favour by the Bhumidhars were

contrary to Section 154 of the Act and were void and, as such, land vested in

the State Government under Section 167. This is evinced from the

following paragraphs of the lease agreement:

"AND WHEREAS the transfers as aforesaid made by the Bhumidhars in favour of the Lessee in respect of the land described in Schedule `A’ hereto being in contravention of Section 154 of the Uttar Pradesh Jamindari Abolition and Land Reforms Act, 1950 (hereinafter called "the said Act") were void under Section 166 of the said Act and consequently the said land vested in the Government of Uttar Pradesh (hereinafter called "the State Government") under Section 167 of the said Act, free from all encumbrances with effect from the date of their transfer.

AND WHEREAS the lessor at the request of the Lessee has agree to demise and land vested in the State Government as aforementioned subject to the rights and restrictions and the several convenants hereinafter expressed for the purposes of the said project."

(emphasis supplied)

13

14. It is quite intriguing and surprising that the lease agreement was not

brought to the notice of the Additional Commissioner and the learned Single

Judge of the High Court and neither of them was apprised of the fact that the

appellant had taken 27.95 acres land on lease from the Government by

unequivocally conceding that it had purchased excess land in violation of

Section 154(1) of the Act and the same vested in the State Government. In

the list of dates and the memo of special leave petition filed in this Court

also there is no mention of lease agreement dated 15.10.1994. This shows

that the appellant has not approached the Court with clean hands. The

withholding of the lease agreement from the Additional Commissioner, the

High Court and this Court appears to be a part of the strategy adopted by the

appellant to keep the quasi-judicial and judicial forums including this Court

in dark about the nature of its possession over the excess land and make

them believe that it has been subjected to unfair treatment. If the factum of

execution of lease agreement and its contents were disclosed to the

Additional Commissioner, he would have definitely incorporated the same

in order dated 30.5.2001. In that event, the High Court or for that reason this

Court would have non suited the appellant at the threshold. However, by

concealing a material fact, the appellant succeeded in persuading the High

Court and this Court to entertain adventurous litigation instituted by it and 14

pass interim orders. If either of the courts had been apprised of the fact that

by virtue of lease deed dated 15.10.1994, the appellant has succeeded in

securing temporary legitimacy for its possession over excess land, then there

would have been no occasion for the High Court or this Court to entertain

the writ petition or the special leave petition.

15. It is settled law that a person who approaches the Court for grant of

relief, equitable or otherwise, is under a solemn obligation to candidly

disclose all the material/important facts which have bearing on the

adjudication of the issues raised in the case. In other words, he owes a duty

to the court to bring out all the facts and refrain from concealing/suppressing

any material fact within his knowledge or which he could have known by

exercising diligence expected of a person of ordinary prudence. If he is

found guilty of concealment of material facts or making an attempt to

pollute the pure stream of justice, the court not only has the right but a duty

to deny relief to such person. In one of the earliest decisions on the subject

i.e., – R. v. Kensington Income Tax Commissioner (1917) 1 KB 486,

Viscount Reading, Chief Justice of the Divisional Court observed:

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own 15

protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."

16. The above extracted observations were approved by the Court of

Appeal in the following words:

"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction: and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. If an applicant does not act with uberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted." His Lordship rightly pronounced: "The Court, for its own protection, is entitled to say: We refuse this writ… without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us." Warrington, L.J. was also of the same opinion. In a concurring judgment His Lordship observed: "It is perfectly well settled that a person who makes an ex parte application to the Court – that is to say, in absence of the person who will be affected by that which the Court is asked to do – is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the 16

proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him."

17. This Court and different High Courts have repeatedly invoked and

applied the rule that a person who does not disclose all material facts has no

right to be heard on the merits of his grievance – State of Haryana v.

Karnal Distillery Co. Ltd. (1977) 2 SCC 431, Vijay Kumar Kathuria v.

State of Haryana (1983) 3 SCC 333, Welcome Hotel and others v. State

of Andhra Pradesh and others etc. (1983) 4 SCC 575, G.

Narayanaswamy Reddy (dead) by LRs. and another v. Government of

Karnataka and another (1991) 3 SCC 261, S.P. Chengalvaraya Naidu

(dead) by L.Rs. v. Jagannath (dead) by LRs. and others (1994) 1 SCC 1,

Agricultural and Processed Food Products v. Oswal Agro Furane and

others (1996) 4 SCC 297, Union of India and others v. Muneesh Suneja

(2001) 3 SCC 92, Prestige Lights Ltd. v. State Bank of India (2007) 8

SCC 449, Sunil Poddar and others v. Union Bank of India (2008) 2 SCC

326, K.D. Sharma v. Steel Authority of India Ltd. and others (2008) 12

SCC 481, G. Jayshree and others v. Bhagwandas S. Patel and others

(2009) 3 SCC 141 and C.A. No. 5239/2002 – Dalip Singh v. State of U.P.

and others, decided on 3.12.2009.

17

18. In Hari Narain v. Badri Das AIR 1963 S.C. 1558, this Court revoked

the leave granted to the appellant by making following observations:

"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."

19. In Dalip Singh’s case, the appellant’s grievance was that before

finalizing the case under the U.P. Imposition of Ceiling on Land Holdings

Act, 1960, the prescribed authority did not give notice to the tenure holder

Shri Praveen Singh (predecessor of the appellant). On a scrutiny of the

records, this Court found that the prescribed authority had issued notice to

Shri Praveen Singh, which was duly served upon him and held that the

appellant is not entitled to relief because he did not approach the High Court

with clean hands inasmuch as he made a misleading statement in the writ 18

petition giving an impression that the tenure holder did not know of the

proceedings initiated by the prescribed authority. The preface and para 21 of

that judgment read as under:

"For many centuries, Indian society cherished two basic values of life i.e., `Satya’ (truth) and `Ahimsa’ (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

21. From what we have mentioned above, it is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant’s prayer for setting aside the orders passed by the Prescribed Authority and the Appellate Authority."

19

20. Notwithstanding our conclusion that the appellant is guilty of

contumacious conduct and is not entitled to any relief, we have thought it

proper to deal with the argument advanced by the learned counsel for the

appellant on the issues of violation of rules of natural justice and non

applicability of Section 154 of the Act.

21. The question whether the appellant was denied reasonable opportunity

to defend its cause needs consideration in the light of the written statements

filed on behalf of the appellant before the Collector, wherein it was admitted

that land had been purchased without waiting for the permission of the

Government under the belief that permission will be granted for establishing

the industry. Not only this, it was candidly stated that the appellant has no

objection if any legal action is taken with regard to land in excess of 12.50

acres. In the proceedings of the suits, no prayer was made on behalf of the

appellant for permission to lead evidence to prove that the purchase made by

it from Bhumidhars was not in violation of Section 154(1) of the Act.

Before the Additional Commissioner and the High Court, the appellant did

not make a grievance that the Collector had passed order without giving it a

reasonable or effective opportunity of hearing. In this view of the matter, 20

the appellant cannot now contend that the Collector did not act in

consonance with the rule of audi alteram partem.

22. Though, Shri Manoj Swarup made strenuous efforts to convince the

Court that Shri T.R. Sharma had no authority to make tacit admission of the

illegality committed in the purchase of land and that he had no right to make

an offer for surrender of excess land, we have not felt impressed. A reading

of resolution dated 14.10.1991 makes it clear that Shri T.R. Sharma, the then

General Manager of the appellant was authorised to take all actions

necessary for transfer of land. That apart, in view of lease agreement dated

15.10.1994, which was not produced by the appellant before the Additional

Commissioner, the learned Single Judge of the High Court and even this

Court (for the first time, the lease agreement came to the fore when a copy

thereof was annexed with the counter affidavit filed on behalf of the

respondent), challenge to the competence of Sri T.R. Sharma to make an

admission that the land was purchased by the appellant without waiting for

the State Government’s permission and that appropriate legal action can be

taken with regard to excess land pales into the realm of insignificance. The

learned counsel was at loss to explain as to how in the face of the lease

agreement, which was signed by none else than Shri Kamal Oswal (Director 21

of the appellant), whose name finds mention in Resolution dated 14.10.1991

and General Manager (Liaison) and which contains unequivocal admission

that the land was purchased in violation of Section 154(1) and, as such, the

transaction was void and that by virtue of Section 167, excess land vested in

the State Government, it can be said that Shri T.R. Sharma acted beyond his

authority in filing the written statement. This being the position, it is not

possible to find any fault with the order of the Collector who relied upon the

written statement filed on behalf of the appellant and declared that land in

excess of 12.50 acres will vest in the State Government.

23. We shall now consider whether the restriction contained in Section

154(1) is not attracted in a case involving transfer of land by Bhumidhar in

favour of a company. In this context, it is important to bear in mind that the

Act was enacted by the State Legislature to achieve the goal of social and

economic justice enshrined in the preamble of the Constitution. It provides

for abolition of zamindari system, which involves intermediaries between

tiller of the soil and the State and for acquisition of their rights, title and

interest and to reform the law relating to land tenure. Sections 154, 166 and

167 of the Act, which contain restriction on transfer of land by Bhumidhar 22

and also specify the consequences of transfer made in violation of that

restriction, read as under:-

"154. Restriction on transfer by a bhumidhar.- (1) Save as provided in sub-section (2), no bhumidhar shall have the right to transfer by sale or gift, any land other than tea gardens to any person where the transferee shall, as a result of such sale or gift, become entitled to land which together with land if any, held by his family will, in the aggregate, exceed 5.0586 hectares (12.50 acres) in Uttar Pradesh.

Explanation.- For the removal of doubt it is hereby declared that in this sub-section the expression `person’ shall include and be deemed to have included on June 15, 1976 a `Co-operative Society':

Provided that where the transferee is a co-operative society, the land held by it having been pooled by its members under clause (a) of sub-section (1) of section 77 of the Uttar Pradesh Co- operative Societies Act, 1965 shall not be taken into account in computing the 5.0586 hectares (12.50 acres) land held by it.

(2) Subject to the provisions of any other law relating to the land tenures for the time being in force, the State Government may, by general or special order, authorise transfer in excess of the limit prescribed in sub-section (1) if it is of the opinion that such transfer is in favour of a registered cooperative society or an institution established for a charitable purpose, which does not have land sufficient for its need or that the transfer is in the interest of general public.

Explanation.- For the purposes of this section, the expression `family’ shall mean the transferee, his or her wife or husband (as the case may be) and minor children, and where the transferee is a minor also his or her parents.

23

(3) For every transfer of land in excess of the limit prescribed under sub-section (1) prior approval of the State Government shall be necessary:

Provided that where the prior approval of the State Government is not obtained under this sub-section, the State Government may on an application give its approval afterward in such manner and on payment in such manner of an amount, as fine, equal to twenty-five per cent of the cost of the land as may be prescribed. The cost of the land shall be such as determined by the Collector for stamp duty.

Provided further that where the State Government is satisfied that any transfer has been made in public interest, it may exempt any such transferee from the payment of fine under this sub-section.

166. Transfer made in contravention of the Act to be void.- Every transfer made in contravention of the provisions of this Act shall be void.

167. Consequences of void transfers.- (1) The following consequences shall ensue in respect of every transfer which is void by virtue of section 166, namely-

(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances;

(c) the transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.

(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the 24

Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary."

24. While enacting law for abolition of zamindari system, the legislature

was aware of the ground reality that despite the welfare measures which may

be taken by the State to protect the interest of poor farmers, economically

affluent class of people may persuade or pressurize them to part with their

sole source of sustenance i.e., the land. This is the reason why a ceiling has

been imposed on transfer of land by Bhumidhar. Section 154(1), in no

uncertain terms, declares that no Bhumidhar shall be entitled to transfer any

land other than tea gardens by sale or gift to any person if holding of the

transferee would exceed 12.50 acres (Earlier the prescribed limit was 30

acres but by an amendment it was reduced to 12.50 acres). An explanation

was subsequently added to clarify that the word `person’ shall include and

be deemed to have included a cooperative society on June 15, 1976. Proviso

to Section 154(1) lays down that where the transferee is a cooperative

society, the land held by it having been pooled by its members under Section

77(1)(a) of the Uttar Pradesh Cooperative Societies Act, 1965 shall not be

taken into account for the purpose of computing 12.50 acres. Under sub- 25

section (2), the State Government is empowered to authorize transfer of land

in excess of the limit prescribed in sub-section (1) if it is of the opinion that

such transfer is in favour of a registered cooperative society or an institution

established for a charitable purpose, which does not have sufficient land for

its need or the transfer is in the interest of general public. The substantive

part of sub-section (3), which was added by an amendment made in 2005,

lays down that every transfer of land in excess of the limit prescribed under

sub-section (1) shall require prior approval of the State Government. By

virtue of proviso to this sub-section, the State Government has been clothed

with power to give post facto approval on payment of the specified amount

as fine. Section 166 declares that every transfer made in contravention of

the provision of the Act shall be void. This obviously includes Section

154(1). Section 167 enumerates the consequences of void transfers. Clause

(a) of Section 167(1) lays down that a transfer which is void by virtue of

Section 166, the subject matter of transfer shall be deemed to have vested in

the State Government from the date of transfer. In terms of Section 167(2),

the Collector is entitled to take over possession of any land or other property

which has vested in the State Government under sub-section (1) and also

direct eviction of any person occupying such land or property. 26

25. The argument of Shri Manoj Swarup that a company is not a `person’

within the meaning of Section 154(1) of the Act and, therefore, the

restriction contained therein is not applicable to transfer of land in favour of

a company sans merit. Since, the word `person’ has not been defined in the

Act, reference can usefully be made to the definition of that word in the

Uttar Pradesh General Clauses Act, 1904. Sections 3 and 4(33) of that Act

read as under:

"3. Application of the Act to other enactments. – (1) The provisions of this Act shall apply to this Act and to all Uttar Pradesh Acts, whether made before or after the commencement of this Act.

(2) The provisions of this Act in their application to any enactment or statutory instrument shall be subject to any contrary requirements of the context of the enactment or instrument that is to be interpreted.

4. Definitions. – In all Uttar Pradesh Acts, unless there is anything repugnant in the subject or context, -

xxxx xxxx xxxx

(33) "Person" shall include any company or association or body of individuals, whether incorporated or not;

xxxx xxxx xxxx"

A reading of Section 3(1) reproduced above makes it clear that the

provisions contained in the U.P. General Clauses Act are applicable to all

Uttar Pradesh Acts including the Act with which we are concerned. To put 27

it differently, by virtue of Section 3(1) of the General Clauses Act, the

definition of the word `person’ contained in Section 4(33) will be deemed to

have been engrafted in the Act and the same cannot be given a restricted

meaning as suggested by the learned counsel. Rather, in view of the

definition contained in Section 4(33) of the U.P. General Clauses Act, the

word `person’ appearing in Section 154(1) would include any company or

association or body of individuals, whether incorporated or not. This view

of ours is strengthened by the language of explanation added to Section

154(1) whereby it was declared that the expression `person’ shall include a

cooperative society. The word `include’ is generally used in interpretation

clauses in order to enlarge the meaning of the words or phrases occurring in

the body of the statue and when it is so used those words or phrases must be

construed as comprehending, not only such things, as they signify according

to their natural import, but also those things which the interpretation clause

declares that they shall include. The word `include’ is susceptible of another

construction, which may become imperative, if the context of the Act is

sufficient to show that it was not merely employed for the purpose of adding

to the natural significance of the words or expressions used. It may be

equivalent to `mean and include’ and in that case it may afford an exhaustive

explanation of the meaning which for the purposes of the Act must 28

invariably be attached to those words or expressions. – Dilworth v.

Commissioner of Stamps (1899) AC 99. In State of Bombay and others

v. Hospital Mazdoor Sabha and others AIR 1960 SC 610,

Gajendragadkar, J., observed:

"It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where we are dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.

In CIT, A.P. v. Taj Mahal Hotel, Secunderabad (1971) 3 SCC 550, this

Court interpreted the word `plant’ used in Section 10(2)(vi-b) of the Income

Tax Act, 1922. Speaking for the Court, Grover, J., observed:

"The very fact that even books have been included shows that the meaning intended to be given to `plant’ is wide. The word `includes’ is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include."

26. Moreover, if the word `person’ used in Section 154(1) is interpreted

keeping in view the object of legislation and by applying the rule of

contextual interpretation, the applicability of which has been recognised in

Poppatlal Shah v. State of Madras AIR 1953 SC 274 (para 7), S.K. Gupta 29

and another v. K.P. Jain and another (1979) 3 SCC 54 (para 25), Reserve

Bank of India v. Peerless General Finance and Investment Co. Ltd. and

others (1987) 1 SCC 424 (para 33) and Central Bank of India v. State of

Kerala and others (2009) 4 SCC 94 (para 98), it becomes clear that the

same would include human being and a body of individuals which may have

juridical or non juridical status.

27. At the cost of repetition, we consider it appropriate to observe that the

primary object of Section 154(1) is to put a restriction/ceiling on the transfer

of land by a Bhumidhar to any other person by sale or gift. Though, sub-

sections (2) and (3) of Section 154 empowers the Government to dilute the

rigor of the restriction contained in Section 154(1), if that section is read in

conjunction with Sections 166 and 167 which provide for consequences of

transfer made in contravention of the Act including Section 154(1), the word

`person’ appearing in Section 154(1) cannot be construed in a manner which

would defeat the object and purpose of legislation. If a narrow meaning is

given to the word `person’ appearing in Section 154(1), the purpose of

legislation viz., abolition of zamindari and making tillers owner of the land,

which is in consonance with the mandate of the object of social justice set

out in the preamble and the provisions contained in Articles 38 and 39 of the 30

Constitution, would be substantively defeated because in that event

companies, corporations, etc. will be able to grab the land of the tillers by

offering them comparatively remunerative prices and again make them

landless poor.

28. At this stage, we may notice two precedents which have direct bearing

on the interpretation of word `person’. In Hasmukhlal Dahayabhai and

others v. State of Gujarat and others (1976) 4 SCC 100, this Court was

called upon to interpret Section 6 of the Gujarat Ceiling Act, 1961. It was

argued on behalf of the appellant that the concept of person embodied in

Section 6(2) was contrary to the concept of that word in second proviso to

Article 331A(1) of the Constitution. While repelling the challenge, this

Court observed:

"It is evident that Section 6 conceives of each "person" holding land as a single unit whose holding must not exceed the ceiling limit. Section 2 sub-section (21) says: " `person’ includes a joint family",. Thus, the term "person" is not, strictly speaking, defined in the Act. Section 2 sub-section (21) only clarifies that the term "person" will "include" a joint family also. It certainly does not exclude an individual from being a person in the eyes of law.

This has been done apparently to make it clear that, in addition to individuals, as natural persons, families, as conceived of by other provisions, can also be and are persons. This elucidation of the term "person" is in keeping with Section 3(42) of the General Clauses Act, 1897, which lays down: " 31

`person’ shall include any company or association or body of individuals, whether incorporated or not".

We have referred to the Central General Clauses Act 10 of 1897 and not to the State General Clauses Act, which also contains a similar clarification, because Article 367 of our Constitution provides that the definitions contained in the Central Act "apply for the interpretation of the Constitution". The argument which has been advanced before us is that the concept of the term "person", having been fixed by the Central General Clauses Act, this concept and no other must be used for interpreting the second proviso to Article 31-A(1) of the Constitution which lays down:

"Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof."

It is true that, but for the provisions of Section 6, sub- section (2) of the Act, the term "person", which includes individuals, as natural persons, as well as groups or bodies of individuals, as artificial persons, such as a family is, the entitlement to the ceiling area would be possessed by every person, whether artificial or natural. In other words, if Section 6(2) of the Act was not there, each individual member of a family would have been entitled to hold land upto the ceiling limit if it was his or her legally separate property. This follows from the obvious meaning of the term "person" as well as the inclusive definitions given both in the Act under consideration and in the General Clauses Act.

32

Spouses and minor children, as natural persons, have not been debarred from holding their separate rights to land by the provisions of the Act. It is not the object of the Act to do that. The object of the Act, as set out above, is twofold: firstly, to limit the ceiling area of each holder; and, secondly, to acquire what falls beyond the ceiling limit so that the State may distribute it to more needy persons. It is not disputed that compensation is provided for acquisition of what exceeds the ceiling area in every case. As was held by this Court in H.H. Kesavananda Bharati Sripadagalavaru v. State of Kerala the amount of compensation fixed cannot be questioned. Therefore, no provision of the Act could be or is challenged on the ground that the required compensation is not prescribed for an acquisition under it as required by Article 31(2) of the Constitution or is inadequate."

29. The issue was recently considered in Ramanlal Bhailal Patel v. State

of Gujarat (2008) 5 SCC 449. That case involved interpretation of the

provisions contained in the Gujarat Agricultural Land Ceiling Act, 1960.

The High Court held that the word `person’ appearing in Section 6 of the

Act includes an association of persons and as such 10 co-owners were

entitled to only one unit i.e. 36 acres. It was argued on behalf of the

appellant that the definition of "person" in the General Clauses Act cannot

be read into the definition of "person" in the Ceiling Act and in any case co-

owners cannot be considered as a body of individuals or association of

persons and each co-owner should be considered as a person for the

purposes of the Ceiling Act. The Court referred to the provisions of Gujarat 33

General Clauses Act, which is pari materia to the General Clauses Act, 1897

and held:

"The extent of land that could be held by the appellants depends upon the interpretation of the word "person" in Section 6(1) of the Ceiling Act which provides that "no person shall … be entitled to hold … land in excess of the ceiling area". If the ten co-owners are considered as an "association of persons" or "body of individuals", and consequently as a "person", then the ten co-owners together as a person, will be entitled to only one unit of land which is the ceiling area per person. But if "association of persons" or "body of individuals" is not a "person", or if a co-ownership is not an association of person/body of individuals, then each co-owner or the family of each co-owner, as the case may be will be a separate "person" having regard to the definition of person in Section 2(21) of the Ceiling Act, in which event, each family will be entitled to hold one unit of land.

The word "person" is defined in the Act, but it is an inclusive definition, that is, "a person includes a joint family". Where the definition is an inclusive definition, the use of the word "includes" indicates an intention to enlarge the meaning of the word used in the statute. Consequently, the word must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. Thus, where a definition uses the word "includes", as contrasted from "means", the word defined not only bears its ordinary, popular and natural meaning, but in addition also bears the extended statutory meaning (see S.K. Gupta v. K.P. Jain following Dilworth v. Commr. of Stamps and Jobbins v. Middlesex Country Council).

The ordinary, popular and natural meaning of the word "person" is "a specific individual human being". But in law the 34

word "person" has a slightly different connotation and refers to any entity that is recognised by law as having the rights and duties of a human being. Salmond defines "person" as "any being whom the law regards as capable of rights and duties" or as "a being, whether human or not, of which rights and duties are the attributes" (Jurisprudence, 12th Edn., p. 299). Thus the word "person", in law, unless otherwise intended, refers not only to a natural person (male or female human being), but also any legal person (that is an entity that is recognised by law as having or capable of having rights and duties). The General Clauses Act thus defines a "person" as including a corporation or an association of persons or a body of individuals whether incorporated or not. The said general legal definition is, however, either modified or restricted or expanded in different statutes with reference to the object of the enactment or the context in which it is used. For instance, the definition of the word "person" in the Income Tax Act, is very wide and includes an individual, a Hindu Undivided Family, a company, a firm, an association of persons or body of individuals whether incorporated or not, a local authority and every other artificial juridical person. At the other extreme is the Citizenship Act, Section 2(f) of which reads thus: ` "Person" does not include any company or association or body of individuals whether incorporated or not.’ Similarly, the definition under Section 2(g) of the Representation of People Act, 1950, is "person" does not include a body of persons.

Both definitions of the word "person", in the General Clauses Act and the Ceiling Act, are inclusive definitions. The inclusive definition of "person" in the General Clauses Act applies to all Gujarat Acts unless there is anything repugnant in the subject or the context. The inclusive definition of "person" in Section 2(21) of the Ceiling Act, does not indicate anything repugnant to the definition of "person" in the General Clauses Act, but merely adds "joint family" to the existing definition. Therefore the definition of person in the Ceiling Act, would include the definition of person in Section 3(35) of the General Clauses Act. The resultant position can be stated thus: the definition of person in the General Clauses Act, being an inclusive 35

definition, would include the ordinary, popular and general meaning and those specifically included in the definition. The inclusive definition of "person" in the Ceiling Act, in the absence of any exclusion, would have the same meaning assigned to the word in the General Clauses Act, and in addition, a "joint family" as defined. Thus, the word "person" in the Ceiling Act will, unless the context otherwise requires, refer to:

(i) a natural human being;

(ii) any legal entity which is capable of possessing rights and duties, including any company or association of persons or body of individuals (whether incorporated or not); and

(iii) a Hindu Undivided Family or any other group or unit of persons, the members of which by custom or usage, are joint in estate and residence."

30. In view of the above, the argument of the learned counsel that the

word `person’ in Section 154(1) means a human being or a natural person

only and that the explanation by which a cooperative society was included in

the said word is indicative of the legislature’s intention to give a narrow

meaning to the word `person’ is liable to be rejected. In our view, the

explanation instead of narrowing the meaning of the word `person’ makes it

clear that the same would include a non natural person.

31. The submission that if share of the individual Director is taken into

consideration, the total land of the appellant would not exceed 12.50 acres is

being mentioned only to be rejected in view of the contents of lease 36

agreement. That apart, no evidence was produced before the Collector or

the Additional Commissioner to prove that the land was purchased in the

name of the Directors of the appellant. Even before the learned Single Judge

of the High Court and this Court, no such evidence has been produced. In

Ramanlal Bhailal Patel’s case, this issue was considered and answered in

negative in the following words:

"Instead of buying the land (172 acres 36 guntas) jointly under the four sale deeds it was open to the ten persons to have bought the lands individually, that is each of them purchasing such extent of land as he or she wanted. If they had registered the sale deeds individually (subject to each of them being entitled to buy agricultural land, under the land reforms laws in force) each couple would have been entitled to hold land to the extent of one unit. Instead of each individual or couple purchasing the land in their respective names, if for convenience in negotiations, ten individuals buy the land jointly, the position will be no different. It cannot be said that merely because the sale deed is in the joint names of ten persons, they purchased the land as "an association of persons" or as "body of individuals" with the common intention of carrying on agricultural activities jointly or producing income, profit or gain or carry on some common joint venture. In fact before purchasing the lands, the ten persons had entered into an agreement placing on record that the object of purchasing the lands jointly was only to facilitate negotiations and avoid duplicating the purchase procedures and not to cultivate them jointly. There is no evidence of any joint cultivation, nor any evidence of any intention to have a joint venture. On the other hand, after purchase, they divided the lands and informed the Land Revenue Authorities and each co-owner was registered as the owner of the respective land allotted to him/her. This is not a case where a body of individuals purchased the land with the intention of having a continued community of interest by way 37

of a joint venture or as a business venture. It is therefore not possible to treat the ten purchasers as an "association of persons/body of individuals" nor is it permissible to treat them as a single "person", thereby restricting their entitlement to hold land to only one unit, even though there are ten purchasers. The Tribunal and the High Court were right in holding that the word "person" in the Ceiling Act includes an "association of persons/body of individuals". But they were not justified in treating the co-owners as an "association of persons", or in holding that the ten co-owners will be entitled to own only one unit. Having regard to Section 6(2) of the Act, the share of each couple (husband and wife) in the land, plus any other land individually held by them will have to be calculated to find out whether they held any land in excess of the ceiling limit. Therefore, the share of each appellant in the lands jointly purchased, with the addition of the lands held by his spouse, and addition of any other land held by them, will give the basis for determining the surplus land. For example, if a husband’s share as co-owner is 20 acres and wife’s share as co-owner is 20 acres, and their other individual holding is another 10 acres (all of the same category in `C’ Class), the total holding of the family will be 50 acres (20+20+10 acres) and the surplus will be 14 acres."

32. The submission of Shri Manoj Swarup that a direction may be given

to the State Government to accord post facto sanction to the purchase of

excess land cannot be entertained much less accepted because the appellant

has been found guilty of not coming to the Court with clean hands. In any

case, in the absence of any factual foundation, such a plea cannot be

entertained at this stage.

38

33. The appellant’s grievance against the direction given by the learned

Single Judge to the Chief Secretary to ensure that possession of excess land

is taken without delay does not merit consideration because as mentioned in

the earlier part of this judgment, the State Government had already granted

lease of excess land to the appellant.

34. Before parting with the case, we deem it necessary to express our

serious reservation about the bona fides of the State Government in granting

lease of excess land to the appellant. It is impossible to fathom any rational

reason for this action of the State Government ignoring that the appellant

had purchased land in patent violation of Section 154(1) of the Act. By

executing lease agreement dated 15.10.1994, the concerned officers of the

State effectively frustrated the object sought to be achieved by the legislature

by enacting the Act and the order passed by the Collector.

35. In the result, the appeal is dismissed. Since the appellant has not

approached the quasi judicial and judicial forums i.e., the Additional

Commissioner, the High Court and this Court with clean hands and

succeeded in securing interim orders, it is ordained to pay costs, which is

quantified at Rs.2 lacs. With a view to ensure that functionaries of the State 39

Government may not connive with the appellant and compound the wrong

already done, we direct the Government of Uttar Pradesh not to renew the

lease of the appellant at the end of 30 years period and deal with excess land

in accordance with the provisions of the Act.

………………………..J.

[G.S. Singhvi]

…………………………J.

[Asok Kumar Ganguly]

New Delhi

April 01, 2010.

Andhra High Court- CrPC,1973 read with IPC, 1908 for Perjury to be initiated against the Applicants who comes to the Court with Unclean Hands.

October 13, 2012 Leave a comment

It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure system of justice, the court not only has the right but a duty to deny relief to such person."

The Registrar (Judicial) is directed to initiate prosecution against the petitioner for her above conduct in terms of the provisions of the Code of Criminal Procedure, 1973 read with the Indian Penal Code, 1908 for perjury and other related offences. The petitioner is also saddled with costs of Rs.10,000/- for the above abhorrent conduct.

 

 

IN THE HIGH COURT OF ANDRA PRADESH 

THE HON’BLE MR JUSTICE C.V.NAGARJUNA REDDY
Writ Petition No.24224 of 2009

 

09-06-2010

Yalala Swapna

The Hindustan Petroleum Corporation Ltd.,
Mumbai & another

Counsel for the Petitioners: Smt. Lalitha

Counsel for respondents 1&2: Sri Srinarayana for
Sri M. Ravindranath Reddy
Counsel for respondent No.3: Sri G. Kalyanachakravarthy

:ORDER:

This writ petition is filed for a Mandamus to declare the action of the respondents in disqualifying the petitioner’s application by order dated 15.09.2009 as illegal and arbitrary. The petitioner sought for a consequential direction to the respondents to consider her application for HPCL dealership at Shabad, Ranga Reddy District.
The petitioner is one of the applicants for appointment as dealer for running a retail outlet at Shabad, Ranga Reddy District in pursuance of the advertisement issued on 08.06.2009 by respondent No.1. One Smt. G. Sushmitha,  who is impleaded as respondent No.3 at her instance, also applied for the said dealership. Through letter dated 15.09.2009, respondent No.2 informed the petitioner that her application was not in conformity with the conditions of the advertisement, as she has not submitted a copy of marriage certificate or an affidavit in support of her maiden name and name after marriage along with the
application and that therefore her application was treated as invalid and disqualified. Assailing the said order, the petitioner filed the present writ petition. In her affidavit, the petitioner has specifically pleaded that in her educational certificates, her name was shown as Swapnik and after her marriage her name was changed as Swapna. She also pleaded that she filed a notarized  affidavit dated 17.06.2009 regarding change of her name and in support thereof, she filed a copy of the said affidavit.
This Court, while issuing notice before admission on 10.11.2009, directed the respondents not to issue letter of intent in respect of the dealership in question.
A counter affidavit has been filed on behalf of respondent Nos.1 and 2. It is inter alia averred therein that the petitioner has not submitted either marriage certificate or an affidavit in support of her maiden name and name after marriage, as required in the advertisement. This counter affidavit was received by the counsel for the petitioner in February, 2010. Neither reply affidavit has been filed controverting the abovementioned averments nor the petitioner has filed proof of her sending the marriage certificate or affidavit to the respondents at least after receiving the counter affidavit.
The impleaded respondent in her affidavit stated that she was declared as successful candidate for awarding dealership, that the petitioner obtained interim direction behind her back by raising false allegations and that on account of the interim order, the Corporation has withheld issuance of letter of intent.
None of the parties have filed a copy of the advertisement in pursuance of which the petitioner and respondent No.3 have filed their applications.
However, learned counsel for all the parties conceded that Note No.3, which is mentioned in the impugned letter, in pursuance of which the applications contained the following note.
“Married women applicant with change of name after marriage should submit a copy of the marriage certificate or an affidavit in support of the maiden name and name after marriage.”

In paragraph 5 of her affidavit, the petitioner mentioned as under:
“It is submitted that in the 10th Class certificate and till my marriage in all the records my name is shown as Swapnik. After marriage, my husband has changed my name as Swapna. I have filed a notarized affidavit dated 17.06.2009 with regard to change of name. Apart from this, I have filed my passport which stands in my changed name i.e., Swapna.”

As noted above, the petitioner has also filed the purported notarized affidavit dated 17.06.2009. At the hearing, this Court specifically asked the learned counsel for the petitioner whether the petitioner has proof of filing this affidavit. The learned counsel replied in negative. In this writ petition, the petitioner filed a copy of the letter addressed to the South Central Zone
Manager of respondent No.1 Corporation while enclosing her application. She has indicated in the said letter that she was enclosing as many as 13 documents, which included two personal affidavits mentioned at Sl.No.10. The learned counsel for the respondents pointed out that the said two personal affidavits are those which are filed by the petitioner in this writ petition at page Nos.93 and 95 respectively with the material papers and that they are not referable to the purported notarized affidavit said to have been filed by the petitioner regarding change of her name after marriage. This fact is also not controverted by the learned counsel for the petitioner.
In the face of the abovementioned admitted fact position, the petitioner has not only failed to comply with the mandatory requirement of filing a personal affidavit regarding the change of her name, but also made a blatantly false averment in her affidavit filed in this Court and tried to mislead this Court by filing a copy of the purported affidavit with a specific plea that the
said affidavit was filed before the concerned authority of the Corporation. I am therefore of the opinion that the Corporation and its officials have not committed any illegality in rejecting the petitioner’s application, as it was not in conformity with the conditions stipulated by the Corporation in its notification.
By the conduct of the petitioner in filing deliberately false affidavit supported by a copy of the purported affidavit to buttress her false statement made in the affidavit, the petitioner has polluted the pure stream of justice.
While expressing deep anguish at the sagging moral values of life, the Apex Court in Dalip Singh vs. State of U.P.1 observed:
“For many centuries, Indian society cherished two basic values of life i.e., ‘satya’ (truth) and ‘ahimsa’ (non-violence). Mahavir, Goutam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell
truth in the Courts irrespective of the consequences. However, the post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court
proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

In Oswal Fats an Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others2 the Supreme Court while dealing with the conduct of a party before it in suppressing the material facts observed:
“It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure system of justice, the court not only has the right but a duty to deny relief to such person.”

The Registrar (Judicial) is directed to initiate prosecution against the petitioner for her above conduct in terms of the provisions of the Code of Criminal Procedure, 1973 read with the Indian Penal Code, 1908 for perjury and other related offences. The petitioner is also saddled with costs of Rs.10,000/- for the above abhorrent conduct. The said amount shall be paid to the A.P. Legal Service Authority within a period of four weeks from today. The Member Secretary of the A.P. Legal Service Authority shall initiate appropriate action for recovery of the said mount, if the petitioner fails to deposit the same.
Subject to the above directions, the writ petition is dismissed.
As a sequel to dismissal of the writ petition, WPMP.No.31490 of 2009 and
WVMP.No.2160 of 2010 are also dismissed.

1 (2010) 2 SCC 114
2 (2010) 4 SCC 728 

Punjab & Haryana HC- CrPC 340 Perjury has to be decided before deciding present Case-

October 13, 2012 Leave a comment

 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRA No. 197 SB of 2010 (O&M)
Date of decision: 25-1-2010

Sunny Bhumbla ………Appellant
Vs
Shashi ………Respondent
CORAM:- HON’BLE MR. JUSTICE HARBANS LAL
Present: Shri K.S.Boparai, Advocate, for the appellant.
HARBANS LAL, J.
This appeal is directed against the order dated 5.12.2008 Annexure P-1 passed by the court of learned Civil Judge (Senior Division) Saheed Bhagat Singh Nagar vide which he allowed the petition moved under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights leaving the parties to bear their own costs and rejected the application
moved under Section 195/340 Cr.P.C.
I have heard the learned counsel for the appellant, besides perusing the record with due care and circumspection. The learned counsel for the appellant has submitted with great eloquence that after the respondent admitted in her cross-examination about
her employment, salary and inheritance of the landed property, she again placed on record another affidavit dated 27.8.2008 solemnly affirming therein that she had inadvertently not mentioned about the source of income as well as employment in the earlier affidavit dated 14.8.2008. Thereafter the appellant moved an application under Section 195 of Cr.P.C. for initiating proceedings against the respondent for submitting a false affidavit before the learned trial Court, in order to get more maintenance from the appellant. The learned trial Court had assured the appellant that his said application shall be decided alongwith the main case. While deciding the main petition, in paragraph No. 13 of the judgment it has been observed that
“in support of her claim for interim maintenance under Section 24 of the Hindu Marriage Act, the respondent/applicant had made certain assertions, which were found to be totally false and the same had apparently been done by her in a deliberate manner. Consequently even an application for initiating suitable proceedings against her on account of her having submitted a false affidavit was also filed by the petitioner on 3.9.2008.
Thereafter, the respondent did not press her claim for interim maintenance, but the same did not absolve her of the liability of the aforesaid lapse. This court, however, does not wish to initiate any such proceedings against the respondent with the hope that sooner or later, the parties may be in a position to resolve their dispute or else this young couple may adopt such other means so that they can part their ways in a peaceful manner and therefore, with a view to avoid undue complication of the matrimonial dispute, no action on account of submitting of the above false affidavit etc. is being initiated against the respondent.”
It is further argued that the learned trial Court has overlooked the fact that the respondent has used the false affidavit in the judicial proceedings. Therefore, all the ingredients of the offences of cheating, forging and perjury etc. are made out and consequently, the order passed by the learned trial Court in not initiating the proceedings under Section 195 read with Section 340 Cr.P.C. is illegal. I have given a deep and thoughtful consideration to these submissions.
A careful perusal of the observations rendered by the learned trial Court in paragraph No. 13 of the impugned judgment would reveal that there is not even a shred of reference to the application moved under Section 195 read with Section 340 Cr.P.C. This apart, no specific reasons have been apportioned for not initiating the action on the basis of the alleged affidavit. The said application having been moved under the provisions of the Code of Criminal Procedure was required to be disposed of separately. It was not desirable on the part of the learned trial Court to decide the said application in a slip shod manner by making mere passing reference to the alleged affidavit. In the application moved under Section 340 of the Cr.P.C. if the Court deems fit,the inquiry has to be held whereas in the present one, the impugned order is absolutely silent as to whether or
not inquiry was held. There is specific procedure which is to be followed while disposing of an application moved under Section 340 of the Criminal Procedure Code. Section 340 of the Criminal Procedure Code reads as under:-
“340.Procedure in cases mentioned in Sec.195–(1) When, upon an application made to it in this behalf or otherwise any Court
is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to to in cl
(b) of sub-section

(1) of Section 195, which appears to have been committed in or in relation to to a proceeding in that Court, or as the case may be, in respect of of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary.
(a) record a finding to that effect.
(b) make a complaint thereof in writing
(c) send it to a Magistrate of the first class having jurisdiction.
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is nonbailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Sec.195.

(3) A complaint made under this section shall be signed
(a) where the Court making complaint is a High Court, by such officer of the Court as the Court may appoint.
(b) in any other case, by the presiding officer of the Court, and

(4) In this section, “Court” has the same meaning as in Sec.195.”

A glance through the impugned order would reveal that the learned trial Court has given a go by to the provisions of Section 340
Cr.P.C. The approach adopted by the learned trial Court is unwholesome and is depreciable. The impugned order is absolutely silent as to whether the application has been dismissed or allowed, if so for which reasons.
In consequence of the preceding discussion the trial Court is directed to decide the application under discussion in accordance with law.
This appeal stands disposed of accordingly.

(HARBANS LAL)

JUDGE

January 25, 2010

RSK

NOTE: Whether to be referred to the Reporter or not? Yes/No

http://lobis.nic.in/phhc/showfile.php?sn=124

Rajasthan HC- Perjury CrPC 340- Tainted hands cannot be allowed to touch pure fountains of justice.

October 13, 2012 Leave a comment

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

 

 

In the HIGH COURT OF RAJASTHAN

 

Mohanlal vs State Of Rajasthan And Ors. on 1 October, 1980
Equivalent citations: AIR 1981 Raj 3
Author: G M Lodha
Bench: G M Lodha

ORDER

Guman Mal Lodha, J.

1. ‘White collar’ crimes and there again, ‘economic crimes’, shocking and rocking the entire society, ever increasing either in the form of ‘black marketing’ or ‘Food adulteration’ or ‘smuggling’, have assumed disastrous dimensions, providing manifold litigation. The snail moving, haulting and faultering speed. with which the administration and prosecution both act rather in-act is not only shocking, but is challenging the very utility of the laws which are fast ‘break- ing and cracking’ on account of this lethargy, indifference and ‘red tapism’. Whether, this tantamounts to moral abetment or acquiescence is a question to be answered by law-makers and not law-interpreters, if not. the decision would be of pauserity (posterity ?) alone and not courts of law.

2. With the above preface, let me now come to the brass text of the present case and the controversy raised.

3. The stock of cement was confiscated after a ‘raid’ and on inspection on 18-6-1977, but even after three years, neither petitioner-accused has been convicted, nor acquitted. That apart, even the proceedings of confiscation or cancellation of the licence have not become final. The present writ petition challenging the same, filed in September, 1979, has now come up for consideration for decision as to whether the petition should be admitted. Are we not all abetting these alleged social crimes by such inordinate delays ?

4. Mr. K. N. Joshi, learned counsel for the petitioner was very vehement. when he prayed for quashing the impugned order of cancellation of licence, on the ground that it is very valuable fundamental right of the petitioner and he is being deprived of the same by an executive fiat without a proper opportunity to show cause, thus violating both the principles of law and justice. According to him, there was no prima facie case of ‘black marketing’ by contravention of Cement. Order of License conditions, and the case against, his client was wholly fabricated and concocted one,

4A. Petitioner’s case is that on 18-6-1977 Inspector of District Supply Office, Barmer visited shop of the petitioner and directed the petitioner (not ?) to sell the cement to the customers. The shop of the petitioner including the stocks. was sealed.

5. A notice was received under Clause 11 of the Rajasthan Cement Order, 1974 (hereinafter referred to be as the Cement Order) and the petitioner submitted explanation along with his affidavit dated 9-8-1977. Against the written order-sheet, it was pointed out by Mr. Joshi, that opportunity was claimed for producing evidence, but the Officers concerned asked the petitioner to put signature on a blank order-sheet which was later on fabricated to show that petitioner voluntarily closed the evidence on that day. An appeal was filed under Clause 20 of the Rajasthan Cement Order, before the Collector. Barmer and since there was no substance in the same in view of the Collector, he dismissed the appeal on 23-11-1977. A revision was then filed before the State of Rajasthan but the same was rejected on 25-4-1979 with the observation that no revision lies. In this writ petition petitioner has made the following prayers:

“(i) that by an appropriate writ, order or direction, the order of the District Supply Officer, Banner, Ann. 1 and the order of the Collector, Barmer Ann. ? may be quashed.

(ii) That by an appropriate writ, order or direction, the respondents may be directed to return the forfeited commodity to the petitioner and his licence may be renewed.

(iii) Any other appropriate writ, order or direction to which the petitioner may be entitled to in the circumstances of the case may be passed.”

6. As mentioned earlier, Mr. Joshi, appearing for the petitioner, vehemently argued that his client has not been given proper opportunity of hearing or showing cause by leading evidence before the impugned order was passed. It was pointed out that the order-sheet was fabricated later on, by the officers concerned who told the petitioner that they would intimate the date. This submission of the petitioner was vehemently opposed by the learned Deputy Government Advocate. The respondent along with their reply filed a copy of the order-sheet dated 9-8-1977 (Ex. Rule 6) which reads as under:

“OFFICE NOTE”

9&8&77 Jh eksguyky lhesaV Mhyj flokuk mifLFkrh-

mDr Mhyj us uksfVl dk tckc is’k fd;k tks ‘kfey i=koyh fd;k x;k A Mhyj us viuh lQkbZ esa Jh Fkwadk jke dk gYQukek is’k djk;k A Mhyj viuh lQkbZ cUn djrk gS A

QSlyk tqnkukek fy[kk x;k A

Mhyj dk lhesaV ykbZlsUl fujLr djrs gq;s mldh izfrHkwfr jkf’k ds :i;s 1000@& tCr fd;s tkrs gS A

i=koyh QSly lqekj gS A

g% vifBr 9&8& \

gLrk{kj % eksguyky fgUnh esa 98-77

It means that the petitioner, who was the dealer voluntarily closed his evidence. This has been signed by the petitioner, Mohanlal. All explanation of Mr. Joshi given during the arguments to persuade the Court that the signatures were obtained on the blank paper and the order-sheet was fabricated later on, can only be equaled with a ‘cock and bull’ story. There is no foundation for such an argument nor there are any circumstances, to accept it as correct or even plausible. The petitioner filed his own affidavit and then, stated that he does not want to lead any more evidence. A dealer of cement cannot be treated as an illiterate, ignorant, rustic villager. Since he was operating licence of cement, he was conversant with the office of the District Supply Officer and the proceedings, which are taken there. I am therefore, not at all, prepared to accept the contenlion of Mr. Joshi that an opportunity was not given to his client to produce evidence or defend himself or show cause against the order of cancellation of licence and forfeiture of security.

7. Even ot herwise, coming to the merits of the case, explanation which the dealer submitted, was that since packing was old. the weight of cement in every gunny bag differed. A cement bag normally is required to be of 50 Kilos in one bag. It is most shocking and surprising that out of that, only 29 Kilos remained and the rest of the cement evaporated. Another most surprising special feature of this case is that 55 gunny bags of cement out of 56 lying in the godown, were of the customers. The explanation given was that all those consumers left cement in the godown there because of rains. This explanation is preposterous. As is well known, cement supply is very restricted and there being great scarcity, there is a great rush. In fact, in the instant case, a written complaint was made against the petitioner that he is indulging in black-marketing and on that complaint, above inspection-cum-raid was carried out by the Supply Inspectors. Reply of the petitioner gives out a different story that these 55 cement gunny bags were given to one Dhankaram, a truck driver who kept them with the petitioner because of rains. It was also stated that one Jasrai purchased three cement bags but took 2 with him and left one with the petitioner. All these stories on the very face of them are so unrealistic and against the ordinary course of human conduct that they failed to carry any conviction of truth with me.

8. Inspector examined purchasers on the spot at the time of inspection and they corroborated allegations of ‘black marketing’. As per the checking report (Annexure Rule 2) dated 8th January, 1977, the cement bags, which were given to the various complainants or customers, were weighed on the spot. One was found to be of 37 kilogrammes, other one was found to be 42 kilogrammes and third one was found to be 43.500 kgs. These bags were those which were sold to the different customers by the petitioner, M/s. Mohanlal, further Rupees 21 were charged per bag.

8A. Mr. Joshi, learned Advocate, appearing on behalf of the petitioner, submitted that in some of the cement bags, cement was less and in others, it was more and therefore, what was to be seen was total weight of the cement divided by the number of bags. It is not for me to finally comment over this but undoubtedly, cement bags are received in packed condition and they should be (of) standard weight, according to law. A dealer cannot be allowed to take away cement from one bag and put more in other bag. Whether this was modus operandi of the petitioner Mohanlal in the commission of the offence and is not a question which calls for determination now but the violation of the license condition and the law is patent warranting cancellation of the license.

The petitioner was charging 15 paise more but petitioner gave no explanation in his reply for the same nor examined any consumer or customer. Petitioner in reply to the notice, admitted that cement bags did not contain standard weight and cash memos were not given because of rush and so also the entries were not made in the Register because of the same rush. The District Supply Officer has given detailed order dated 9-8-1977 and I am convinced that not only proper opportunity was given but all aspects of the case have been considered by him in details and a comprehensive iudgment has been given.

9. Mr. Joshi placed reliance upon the judgments of Hon’ble the Supreme Court in (i) M/s. Bareilly Electricity Supply Co. Ltd., v. The Workmen (AIR 1972 SC 330), (ii) State of Orissa v. Dr. (Miss) Binapani Dei (AIR 1967 SC 1269) and (iii) Khem Chand v. Union of India (AIR 1958 SC 3001, about the concept of opportunity. Clause 11 of Cement Order reads as under:–

“11. Contravention of terms and conditions of licence or provisions of this order: No holder of a licence issued under this order or his agent or any other person acting on his behalf, shall contravene any of the provisions of this order or any of the terms or conditions of the licence and if any such holder or his agent or servant or any other person acting on his behalf contravenes any of the said provisions or terms or conditions, then, without prejudice to any other action that may be taken against him, his licence may be cancelled or suspended by order in writing of the licensing authority:

Provided that, no order shall be made under this clause unless the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension.

Proviso makes it clear that all that is required is that the licensee should be given reasonable opportunity of stating his case, against the proposed cancellation or suspension. This reasonable opportunity of stating the case cannot be equated with reasonable opportunity contemplated to be given to a civil servant before passing major punishment of dismissal. That being so, the above judgments and decisions cannot provide any guidance for deciding the ambit and scope of opportunity of stating the case to be given to the licensee before his licence is cancelled.

10. Under the Essential Commodities Act various orders have been issued for ensuring equitable and fair distribution of commodity at a fair price. Licences are given to the dealers on the condition that they would act according to the law of the land, the orders and the instructions of the statutory authorities passed from time to time. Any contravention of the licence condition and/or clauses of the order or Rules, is sufficient to cancel the licence. All that is required is that the reason for the same should be made known to the licensee so that he can state his case. A detailed inquiry or investigation or trial of the nature of the civil or criminal case is neither contemplated nor permitted under Clause 11.

11. I am, therefore, firmly of the view that the phrase, ‘stating the case’ means that the opportunity to file reply and also any documentary evidence or oral evidence, if it is relevant in respect of the same. But it cannot mean a trial or inquiry like that of civil or criminal case.

12. No one can claim a right of licence as such, although one can claim consideration for the same amongst his similar situated persons. The cancellation of a licence under the Cement Order as referred to above is, therefore, not a judicial order but it is an administrative order under the statute and should follow the condition of the statute only. Principle of natural justice cannot be invoked because the proviso of the Clause 11 expressly provides the nature of the opportunity which is required to be given. When a rule or section provides nature of the opportunity to be given the principles of natural justice and the ambit and scope of them, as held by many Courts would not come in picture at all. Similarly, reasonable opportunity available to a civil servant or industrial workman either under Article 311 of the Constitution of India or the Standing Orders, would not be applicable to a case of defaulting licensee whose licence is sought to be cancelled for certain omissions or commissions.

13. In this view of the matter, I am convinced that the petitioner was given full opportunity before the order of cancellation of licence was passed and further, that the cancellation of licence was made on valid, cogent and reasonable grounds. The writ petition, therefore, cannot be allowed and deserves to be dismissed.

14. The result is that this writ petition cannot succeed.

15. Before parting with this case, I cannot restrain myself from observing that “invoking of principles of natural justice” sounds most “unnatural”, when it comes from the alleged economic offender, who commits daylight robbery and shameless rape on “social and natural iustice”, in greed of profiteering by unnatural methods of ‘black marketing’, exploiting the scarcity of essential commodities. This is misuse, exploitation and prostitution of Article 226.

16. I am inspired to say so, on reading the following weighty observation of my learned brother, Mr. Justice M. L, Shrimal in Fatehlal v. State of Rajas-than (1977 WLN 88):

“Making the supply of fertilizer scarce and selling it at higher rates than prescribed (black marketing) is bound to have a disastrous impact on the State’s efforts to stabilize the country’s economy. Smugglers, hoarders and black marketeers have no country, caste or nation of their own. Their only ‘God’ and concern is the yellow metal, — ‘Gold’. The offence for which the accused-petitioner has been convicted is of the species of ‘economic’ crime which need to be curbed effectively. The ineffectiveness of prosecution in arresting the wave of white collar crime must disturb the judges’ conscience. The Court is not a computer, which registers what is fed into it and answers by mechanical intelligence but a human being to get at the truth and public good. An antisocial adventurer cannot claim for his nefarious and injurious activities any greater legal regard than for the defence of society, itself. If members belonging to higher status in life should show scant regard for the laws of this country which are for public good, for protecting the common man, the consequential punishment for the violation of such laws must be equally deterrent and such person should be made to suffer inequital for the harm he has done to the society. I do not consider it to be a fit case in which benefit of Section 4 of the Probation of Offenders Act may be extended to the accused-petitioner. The Commission also had in its 47th Report recommended the exclusion of the applicability of probationary process in the case of special (social ?) and economic offences”.

17. Again, the same learned Judge sitting with Justice Mr. N. M. Kasiwal in Associated Cement Co. Ltd., Lakheri v. State of Rajasthan (Civil sc. Appeal No. 66 of 1980 decided on 25-9-1980) observed as under:

“Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all times. The difficulty of discovering what public policy is at any given moment certainly does not absolve the Judges from the duty of doing so. In conducting an enquiry as already stated, Judges are not hide-bound by precedent. The Judges must look beyond the narrow field of past precedents, though this still leaves open the question in which direction they must cast their gaze. The Judges are to base their decision on the opinions of men of the world, as dis- tinguished from opinion based on legal learning. In other words, the Judges will have to look beyond the jurisprudence and that in so doing, they must consult not their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality.”

18. I have also expressed similar views in Ganganraj Nagori v. Union of India (1979 WLN 634). on Sex, Morality and Law.

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

20. The writ petition is dismissed with costs, but it is made clear that none of the observations made above in this judgment would prejudice the consideration and decision of the criminal case against the petitioner.

How to file perjury in India ?

July 23, 2012 1 comment

In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost.
Read a judgment about the above in Vijay Syal Vs. State of Punjab
PROSECUTION OF PERJURY:
1. Legal obligation to state the truth
2. The making of a false statement .
3. Belief in its falsity .
Criteria for establishing offense:
(a) The statement is false
(b) The parson making the statement knew or believed it to be false or did not believe it to be true.
(c) The statement was made intentionally.
All three criteria must be proved for conviction. Intention is most important.
False evidence is said to be given intentionally, if, the person making the statement is aware or has knowledge that it is false and has deliberately used such evidence in a judicial proceeding with the intention of deceiving the court .

ELEMENTS OF PERJURY:
1) False statement made by a person Who is –
a) Bound by an oath
b) By an express provision of law
c) A declaration which a person is bound by law to make on any subject
d) Which statement or declaration is false and which he either knows or believes to be false or does not believe to be true.
2. Oath must be administered by a person of competent authority.
The authority must be competent to administer the oath. The proceedings where oath is administered must be sanctioned by law.
3. Express provisions of law include—Plaints, Written Statements, and other pleadings.
a)CPC casts a legal duty to speak the truth
b)Verification of pleadings is a legal obligation.
4. Affidavits are declaration made under oath.
5. A statement could be verbal or otherwise.

a) Statement that he believes a thing which he does not believe.
b) Statement that he knows a thing which he does not know.
c)Statement that he knows to be false or does not believe to be true .
d) Statement need not be on a point material to the proceedings.

Due to this the related other section which can be used are :
IPO 191: Giving false evidence, judicial perjury
IPO 192: Fabricating false evidence
IPO 193: punishment for offenses u/s 191 & 192 IPO
IPO 194 & 195: Aggravated forms of offenses u/s 191 & 192 IPO
IPO 196 to 200: Offenses punishable in the same way as giving or fabricating false evidence
IPO 201 to 229: Offenses against public justice

OFFENCES U/S 195 CrPC:
(a) IPO 172 to IPO 188 relate to contempts of the lawful authority of public servants and also of attempt to commit or conspiracy to commit such offense or abatement there of.

(b) IPO 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offense is alleged to have
been committed in, or in relation to, any proceeding in any court.

CrPC 195:
Generally any person can lodge complaint of an offence and set the law in motion. Exception to this rule is offences. Specified u/s 195 CrPC. Section 195 lays down rules to be followed by the court to take cognizance of an offence specified under it. Court has full discretion in deciding whether any prosecution is necessary or not.

Considerations for sanctioning prosecution:
a) Administration of justice is not hampered
b) Not to be used as a means for wreaking vengeance by people
c) Every incorrect or false statement does not make it incumbent upon the court to order prosecution.
d) Judicial discretion to order prosecution only in the larger interest of administration of justice.
e) When police finds that complaint was false and case is cancelled u/s 173 CrPC, the police can start proceeding u/s 211 IPO against person who lodged false complaint.
CrPC 340:
Section 340 CrPC lays down directions for the guidance of the court which desires to initiate prosecution in respect of an offence covered under IPO 195. Court can take action and make a complaint to concerned magistrate u/s 340 either suo motu or on an application made to it on that behalf. Sanction of the public servant court is a must for offenses in (a) under Criteria for establishing offence. Sanction of the court is a must for offenses in (b). under Criteria for establishing offense. Any Civil, Revenue or criminal court can proceed under this section. Person against who proceedings are initiated has no right to participate in preliminary Inquiry. The trial for the offence will be held by the magistrate based on complaint by the court acting u/s 340 sanctioning prosecution. The order is appealable only once and no second appeal or revision lies.

Requirements for starting prosecution:
The court is not bound to start prosecution. Only if it is expedient in the interest of justice and affects administration of justice. Contradictory evidence is not enough for prosecution. Offence must have been committed intentionally. Perjury should appear to be deliberate and conscious. Conviction is reasonable probable or likely. Reasonable foundation for the charge must exist. Statement given by complainant in FIR u/s 154 cannot be basis of prosecution u/s 340. Statements given to police u/s 161 are not evidence.
PROCEDURE:
Receive application or suo motu – application can be filed by a person not party to the proceedings in relation to which the offense is committed. The court where application is filed only decides if inquiry should be made Hold preliminary inquiry (not essential in law). Record findings . Make a complaint in writing – include offence, facts on which it is based and evidence available for proving it. The judge has to sign the complaint himself. Forward it to a first class Magistrate having jurisdiction.
IPC 192:
No condition to be bound by oath. Reasonable prospect of proceedings and intention to use the fabricated evidence in such proceedings. Proceedings need not be in progress. Material omission is made in an entry or a statement Affidavit- making a document containing false statement to be used as evidence in a judicial proceeding.
Criteria:
Particular Intention that false document so made should appear in evidence in a judicial proceeding. Reasonable prospect of using the document is sufficient to establish offence. Should be material to the result of the proceedings- Judge is made to entertain an erroneous opinion touching nay point material to the result of such proceeding based on such fabricated evidence.

IPO 199: False statement made in declaration which is by law receivable as evidence.
IPO 200: Using as true such declaration knowing it to be false.
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http://timesofindia.indiatimes.com/city/chandigarh/Court-serves-notice-to-woman-for-false-evidence/articleshow/5337893.cms

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Criminal Misc. Application No.30509 of 2009
Garima Srivastava Vs. State of U.P. and another ; Hon. A.K. Roopanwal, J.
In this petition orders dated 15.7.09 and 7.10.09 passed by the Principal Judge, Family Court, Allahabad have been challenged.
It appears from the record that in a divorce case an application was moved by the husband that the lady had wrongly filed an affidavit that she is not serving in Delhi Public School, Arail, Naini, District Allahabad and therefore, action be taken against her. The lady was ready for inquiry in the matter and the court vide order dated 21.11.06 ordered that the inquiry be made in the matter and the defaulter be punished with a fine of Rs.10,000/-. Subsequent thereto the report from the college was obtained and it was reported by the college that the version of the lady was wrong. In such situation, the court vide order dated 15.7.09 imposed a fine of Rs.10,000/- upon the lady (applicant). By the order dated 7.10.09 the objections filed by the applicant against the maintainability of the proceedings under Section 340, Cr.P.C. instituted by the husband were rejected. Heard Mr. A.N. Tripathi, learned counsel for the applicant, learned AGA and perused the record.
It has been argued by Mr. Tripathi that under the provisions of Section 340, Cr.P.C. the court can make only preliminary inquiry and the final order which may be in the form of imposing fine can be passed by the court of competent jurisdiction and the court of competent jurisdiction would be that court in which the complaint would be filed by the court in which the perjury was committed. The court which made the preliminary inquiry had no jurisdiction to finally conclude the matter and impose the fine, therefore, the order dated 15.7.09 is bad and is liable to be quashed. Regarding the order dated 7.10.09 it was argued by Mr. Tripathi that once a wrong order was passed by the court on 15.7.09 it should have been reviewed and when it was not reviewed, hence, the order dated 7.10.09 is also bad and is liable to be quashed.
So far as the order dated 15.7.09 is concerned, in that regard I am of the view that the matter is liable to be taken further for hearing as there is some substance in the argument advanced by Mr. Tripathi. So far as the argument regarding the order dated 7.10.09 is concerned, in that regard it has been argued by Mr. Tripathi that the court cannot initiate dual proceedings. Once the matter was concluded vide order dated 15.7.09 there could be no propriety at all to continue the proceedings under Section 340, Cr.P.C. Issue notice to O.P. No.2 to file counter affidavit within 2 weeks’. Rejoinder affidavit, if any, may be filed within 1 week thereafter.
Till then, operation of the orders dated 15.7.09 and 7.10.09 passed by the Principal Judge Family Court, Allahabad in misc. case no.2 of 2008, Rajesh Kumar Srivastava Vs. Garima Srivastava, under Section 340, Cr.P.C. shall remain stayed. Dated:19.1.2010/T. Sinha.

Sample Application for Perjury 340 CrPC

October 10, 2011 1 comment
IN THE COURT OF SH. ----------------, ADSJ, KARKARDOOMA,DELHI
 
 IN RE HMA No.
 
 Shahrukh Kumar Khan …. PETITIONER
 
 VERSUS
 
 …. RESPONDENT
 
 APPLICATION UNDER SECTION 340 Cr.P.C. READ WITH SECTION 193, 200 and 209 OF IPC
 ON BEHALF OF PETITONER AGAINST THE RESPONDENT
 
 
 MOST RESPECTFULLY SHOWETH
 
 
 1. That the above matter is pending petitions consideration before this Hon'ble Court. The respondent ----------------------has filed a rejoinder on the day of previous hearing that was 11th Oct. 2007 of the application U/s 24 of Hindu Marriage Act, 1955 through which she has mentioned that she has not been employed and has no regular source
 of income.
 2. That this statement is false and willfully wrongly given by the applicant with a view to get favourable decision from this hon'ble Court. The husband submits herewith a copy of the printout (attached as annexure P-1) from the
 official ---------------------- which is an autonomous organization under the Ministry of Human Resource Development, Govt. of India) which depicts that she is the class teacher of class IVth A of the said school. As per the staff list available on the website her name has been mentioned along with her designation as PRT (which stands for Primary Teacher), her date of birth as 16-03-1983, her date of joining the present KV as 17-09-2007 and her date of joining the present post as 13-09-2007.
 3. The above said appointment was made on the basis of the advertisement published in the Employment News dated 30th September – 6th October 2006, written examination held in the month of February 2007 and the interview held from 31-7-2007 to 6-8-2007.
 4. That the respondent has filed rejoinder to the reply of the husband wherein  she has stated – (a) In Para C as under:- "The petitioner has no regular source of income and she has to spend a lot of money on her studies and her maintenance and rent for her accommodation as she has been living separately and as such ….."
 (b) In rejoinder to reply on merits Para 4 as under:- " It is submitted that the petitioner is living separately and from her parents and ------------------------------ since July 2007 and …."
5. The aforesaid averments of-------------------- is willfully false statement and a travesty of facts. The recruitment, her selection and joining the duties with --------------------- was known to her at the time of filing the rejoinder
 i.e. on 11.10.2007 which reflects her unclean hands approach thus committing fraud. As she was employed regularly from 13.09.2007 at ----------- the question of her living ------------------------------ does not arise. This is, therefore, a false statement.
 6. Thus this rejoinder has been filed to get a favourable decision by filing a false plea thus giving false evidence. The applicant has therefore sinned by her moving the process of court with most unclean hands.
 
 
 PRAYER
 It is therefore, most respectfully, prayed as under:-
 (a) That the proceedings under section 195 of CrPC may be started against the respondent in the interest of justice.
 (b) That the respondent may be tried by appropriate court for the offence punishable U/S 193, 200 and 209 of IPC.
 (c) Her rejoinder may be declared to be false and no action may be taken on her application under U/S 24 of HMA for grant of maintenance from petitioner and it may be dismissed.
 (d) Any other relief which this honorable court deems fit may also be granted in favour of the petitioner .
 Delhi 
 Dated-
 Petitioner
 Through
 
 Counsel

Sample: 340(1) Application; please file, review and comment

October 10, 2011 Leave a comment

IN THE COURT OF A.C.J Magistrate
__TH COURT AT Fatehpur, U.P.
C.C. NO. ______/2010

Mrs. Anuradha ..….Applicant
Versus
_________________ ….Respondent[ Present Applicant ]

RESPONDENT’S APPLICATION U/S 340(1) of Cr.P.C, 1973. FOR THE ACT OF PERJURY
COMITTED BY THE APPLICANT UNDER AFFIDAVIT AND SOLEMN AFFIRMATION UNDER OATH
SUBMITTED BY THE MAIN APPLICANT IN Fatehpur COURTS.

MAY IT PLEASE YOUR HONOUR:

I, Mr. _____________________, respondent above named, do hereby state on solemn
affirmation as under:-

1. Present petitioner is father in law of main applicant

2. Main applicant is well qualified lady, having completed B.A and currently doing M.A and registered with employment exchange, and is educated and literate, and knowingly and willfully has been filing multiple cases against respondent applicant, being a educated lady has armored self-same with tool and weapons of
criminal procedures to harass respondents by way of different ways.

3. It is most respectfully submitted by the Respondent that the couple stayed not more than __ days, i.e.______________.

4. The facts mentioned and maintained by applicant wife are contrary to applicant wife’s father in different litigations about same event on same date, i.e. on the date of marriage; The applicants self same submissions are contrary to her own self substantiate facts, made to mislead the Ld Court.

5. That present applicant respondent knew the complainant and her family members before marriage since more than 20 years and knowing about them the respondent without any demand of dowry directly/indirectly, without giving or taking any dowry of whatsoever nature married main applicant wife since both families knew
one another since long.

6. It is admitted fact that main applicant including 2 sisters have filed 498a matter against their respective families, and in trial main applicant wife also has accepted this very fact, the alleged facts of all complaints by all sisters
in their own 498a cases is same that they were assaulted and demand of 50,000 Rs was made and they were kicked out of the matrimonial home

7. That is it submitted on affidavit that the main applicants allegations are that she was assaulted and demand of 50,000 Rs and motorcycle was made. Affidavit filed 26-10-2010 states that she went to police station on 13th July
to kotwali Fatehpur, her complaint was not taken is alleged. Hence she forwarded the written complaint to SP Fatehpur by way of registry the same information was given, the same can be observed in ____/____ under affidavit and substantiated evidence, annexed as Annexure “A1″

8. That in witness box the self-same complainant has substantiated the fact, in the matter of 53/06, it is material on record and substantiated that on 12-07-2005, self-same applicant wife went to kotwali Fatehpur and 498a case was
registered in the kotwali and the final report of that matter has been reported by Kotwali Fatehpur.

9. In clear view and plain reading the applicant complainant is educated person and literate lady, and has willfully with clear oblique intentions to harass the present applicant and to mislead the court of law in different courts, in the
imaginary notion that one court of law cannot come to know what she has substantiated in another court of law, and there by misleading the court of law and playing pranks of judicial institution and false statements, from one court
to another court of law, and harassing innocents, and interfering in the administration of justice. And is using court of law as a tool. Heavy fine should be levied and stern action and punishment should be provided to restrain
other such litigants from making such false allegations and complaints against entire family, and this litigant has tried to break the family system, If such litigants are not punished others will gain confidence and the family system
will start to destroy in Indian Society.

10. It is admitted fact that father of complainant has also been tried for murder case; this fact is also admitted by the father of complainant and main applicant and is on material on record.

11. That Respondent stays in ________ since he was 17 years of age and continues to stay there, these above facts in paragraph 3 and paragraph 4 were not known and were kept hidden from the respondent and family, this amount to cruelty upon the present applicant respondent and his family members.

12. It is most respectfully submitted by the Respondent that the main applicant wife has filed for the reliefs u/s 498A, 406, 323, 504, and 506 of IPC by way of 156(3) on oath on 07.09.2005, which was received as 65/05 in the court of C.J.M Fatehpur; with allegations that she was assaulted and demand of 50,000 Rs and motorcycle were made by respondents and other members within 21 hours of marriage and she left thereafter.

13. Respondent had to move Honorable High court of Allahabad for relief u/s 482 Cr.P.C and Stay Arrest until filing of Charge sheet was granted by Honorable High Court of Allahabad.

14. Main Applicant wife filed one more private complaint dated 23.08.2006 with J.M Court Number 13 again u/s 498a, 323, 504, 506 and 34 of IPC and u/s ¾ of The Dowry Prohibition Act, on same grounds and same facts which should be null and void as per 300(1) Cr.P.C and to avoid double jeopardy.

15. Respondent again moved Honorable High court of Allahabad for relief u/s 482 Cr.P.C. and Honorable High Court of Allahabad directed for consolidation of both cases of 498a and directed to submit report under 173 Cr.P.C. in consolidation, the said Order from Honorable High Court of Allahabad is annexed as Annexure “A”.

16. Executive machinery police has filed a final “B Summary” report u/s 173 Cr.P.C on 14.02.2007. Main applicant wife has filed a protest application the order is passed, and upon which 1477/10 is initiated.

17. That Main applicant wife has filed false Maintenance Case u/s 125 Cr.P.C, Case No. ____/05 on __.__.2005, in J.M Court Fatehpur. Against husband who is otherwise a student, and is allegedly stated that he earns 20,000 Rs, which is false and imaginary to which no proof could be established and is unnecessary tactics used by applicant who is well aware of court procedures; And 125 Cr.P.C proceedings, relief to the wife were prohibited and application by applicant wife was dismissed at the outset.

18. The Maintenance case 125 Cr.P.C beyond doubt was dismissed by way of long and lengthy speaking order; as per Order Annexed as Annexure “B”.

19. Father of complainant wife , during Trial of 125 Cr.P.C, In the facts substantiated stated that he did not visit Respondents home until his daughter came back home when she was demanded dowry, only then he came to know about demand of dowry and assault on her. Annexure “C” green shaded region on page number 4 in ____/05 case. Adding that he was not even aware by any sorts of communication or by phone or by some person or by any other means, Shri Satyanarayan Awasthi was not at all aware that his daughter was demanded dowry or was assaulted by respondent/family members.

20. On the contrary, Main Applicant wife in her sworn affidavit and submissions in Case of u/s 9 of Hindu Marriage Act, Case Number __/06 in the J.M. Court Number 1 on page number 6 “dafa no. 8″ , states that she was being assaulted by respondent and family members during such time the servant who also worked in Main Applicants home also, saw this and went and informed family of Main applicant wife, and the same was communicated to family of main applicant by the applicant over telephone that there was nothing , But hearing this , since the
distance between Main Applicant and Respondent is very negligible and can be reached in less than 5 minutes by walk; Father, Mother, Brother and some relatives came to respondent home and after discussing the matter was resolved, but that continued and then thereafter main applicant was forced to leave
Matrimonial home and go to parental home.

21. These prima facie facts of the submissions of main applicants and her family members as per paragraph 13 and 14 of this application above, who have moved the court of law and initiated process that is otherwise, abuse the law, that is otherwise for destitute women application but is utilized for harassment making use of law as a weapon and tool to make innocent family members face criminal trial, which amounts to a very serious nature, The application moved by main applicant wife being not maintainable and she has suppressed the relevant facts and application being false , baseless, vexatious, imaginary. And hence do not make out any prima facie case against the respondents so as to summon the respondents to face trial and in this circumstances taking cognizance against
the respondents is bad in law and is untenable in the court of law, cannot be sustained, that it amounts to abuse of the process of Hon’ble court.

22. The facts mentioned and maintained by applicant wife are contrary to applicant wife’s father in different litigations about same event on same date ; The applicants self same submissions are contrary to her own self substantiate facts

23. That the application filed by main applicant wife during various times have changed the facts according to the need of context and sense of urgency and has manipulated facts with willful intention, while submitting information to the Ld Court, in various court of law, in cases filed by main applicant wife; the facts are imaginary and false, and this amounts to grave misuse of court of law and interference in the administration of justice and denying the liberty to the real victims, here respondent and family members.

24. The changing facts and misuse by main applicant wife, amount to disturbing the purity of law and damaging the serenity of the stream of justice and interferes in the administration of justice thereby performing acts of perjury
in every application in the notion of applicant wife that law is meant for harassment and since the applicant is a female will be exempted for her cruelty and using judicial system for her barbaric acts upon the respondent and his
family members and destroying image and reputation.

25. The persons who use the court of law for their private and personal vendetta should be punished severely so as to curb the menace of misusing and harassing the innocent families, such cases should become the highlight cases and
offenders should be sternly dealt with, without looking at the gender or caste or creed, which are not exempted from Article 15(3) of Constitution Of India.

26. The main applicant wife has willfully and with malafide intentions has filed the instant application, which is devoid of any merit and is interference in the administration of justice.

27. The Main Applicant wife has also filed Application u/s 12 of “The Protection of women from Domestic violence, Act”. U/s 18/19 of the said Act, On 30.05.2009, case number __/09, in the CJ.M Court Fatehpur.

28. The Main Applicant has filed the matter against Respondent, his ____________, ______________, also has roped and implicated brother Of respondent ______________________without any cause of action, again fabricating evidence that she was assaulted on false and fabricated grounds.

29. It is on material record that the Domestic Incident Report, In Domestic Violence Application, created as per procedure, by probation officer stated that no police officials are aware of the facts mentioned in the mentioned domestic violence application, where the incident allegedly had took place in domestic violence application, and that even after inquiry made by probation officers enquiry, and sequences of findings and observations made by probation officer  came to conclusion that such facts as claimed by applicant wife were found false in the knowledge of people at alleged scene and scenarios mentioned in domestic violence application, and hence the same were false, the probation officer during such probe also came to know that applicant wife has filed 498a two times
and that her 125 Cr.P.C and revision of 125 Cr.P.C were rejected by honorable court, when wide probe inquiries were made by the probation officer.

30. That clearly the domestic violence application was also moved with the willful intention to injure and harass the respondent and family members and using court of law as a weapon for harassment.

31. That the domestic violence application is also dismissed on the meritorious grounds by way of lengthy speaking order, by the magistrate.

32. The main applicant has also fabricated medical report in the domestic violence to prima facie prove Domestic Violence, and the incidents alleged. The facts mentioned by main applicant wife are absolutely ambiguous and imaginary has suppressed the relevant facts and application being false, baseless, vexatious, and imaginary. And hence do not make out any prima facie case against the respondents so as to summon the respondents to face trial and in this circumstances taking cognizance against the respondents is bad in law and cannot be sustained it amounts to abuse of the process of Hon’ble court if without prima case having being made out a person is summoned to face trial.

33. The application of main applicant’s wife under section 125 Cr.P.C that was rejected and dismissed by Ld Court. The order was challenged by wife and the same was again rejected in session’s court while under revision, Revision Order is annexed as Annexure “D”.

34. The Main Applicant wife has concealed and suppressed true facts, submitted under oath has false submissions under oath, and more so are contrary to the submissions to this honorable court, which are perjurious in nature.

35. The main applicant wife in her complaints / applications until year April 2011, made no whisper of any Bengali girl with whom _______________had any intimation relation, In Application under affidavit filed by applicant wife u/s 9 of Hindu Marriage Act it is alleged that photo of Bengali girl was with ___________________ displayed to applicant wife and he started kissing the photo in front of Applicant wife. That the facts are baseless and imaginary and are false and fabricated and such cruel acts are performed since year 2005 where she didn’t even spend more than 21 hours.

36. Such allegations were not present in any previous applications of 498a matter or 125 matter, or revision under 125 , even Domestic Violence application was filed and the reliefs are dismissed by way of wide speaking order, and such new facts have landed on the legal grounds, this clearly and loudly entails that applicant is a habitual litigant in fabricating evidences and infringing rights and injuring the rights of other people, without due consideration about the grave injury caused by willful intention with imaginary illusions, thereby causing grave hurt and character assassination and injecting mental agony in the hearts and soul of respondent and his family members. Thereby not only infringing rights of applicant but also willful interference in the administration of justice and disturbing the serenity of the stream of justice.

37. From above instances and admitted facts and arising facts after long and more than 5 years. That main applicant wife is a habitual offender and having two sisters who have filed 498a against upon their respective in-laws, and
father being tried for murder case, is continuously over the years since marriage of one single day, has filed application after application using courts as weapon to dominate the family of in-laws and to grab the land and money of  in-laws, to satisfy her needs and her individual principles, she has been attempting to interfere the administration of justice, it is imperative to punish such litigants, who are using heavy hands in the name of weaker section and destroying the very purpose of legislations provided to weaker sections of the society.

38. The applicant wife has filed an application , This new application that was meant to delay and prevent her substantiation of submissions, which stands rejected, In this application she demanded that she will not appear in the court of law until 40 Lakhs Bond was not filled, in matter of Restitution of conjugal rights u/s 9 Of Hindu Marriage Act.

39. There by denying early relief to respondents and interference in the interest of justice to innocent victims. Thereby interfering in the administration of justice.

40. In the Trial of 125 Cr.P.C, PW1 The complainant wife substantiated that my father is poor and she has two sisters and father cannot maintain her, In-laws are rich, And PW2, the father of complainant wife in his substantiating evidences, under oath stated that he is poor and he cannot fulfill the maintenance required to his daughter and his daughter also cannot maintain herself.

41. On the contrary, in the party witness 3, Sister of complainant wife, in the matter of __/06 u/s 9 of Hindu Marriage Act, under sworn affidavit, named Tilak, in her affidavit Tilak has maintained under oath that her father has ample amount of land of 50 to 60 Bighas of the agricultural land.

42. It is pertinent to note that, This is clear voice of fabrications and contrary statements which lead to the interference in the administration of justice and destroying the image of innocent victims respondents and his family
members who are undergoing mental agony, character assassination, loss of reputation, being defamed in application after application by family of all three daughters who have filed 498a cases against their in-laws and father who
has been also tried for murder case and also stands witness in cases.

43. Applicant being legally bound by oath in this Hon’ble Court to state truth in her affidavit but the applicant and her witness has with knowledge and willful intention have deposed false in their affidavit and substantiated
evidences. Applicant has being knowingly and intentionally given false statements in judicial proceedings.

44. From above facts and instances, it is clear and loud, that this main application by wife is false, fabricate, contrary to statements maintained in the honorable court by the self-same applicant wife, That it is proven on material record, the statements made under oath are contrary and injurious to respondents in the instant complaint made by applicant wife.

45. Respondent states that the applicant wife is a guilty of the Act of perjury by making false statements, on oath solemnly affirming, willfully and knowingly  that those Statements are false, in “AFFIDAVITs” on various dates submitted by her in this Hon’ble court with oblique motive to misguide and mislead this Hon’ble court with a view to extort money where as she is not entitled for any relief under the said Act.

46. The facts mentioned and maintained by applicant wife are contrary to applicant wife’s father in different litigations about same event on same date ; The applicants self same submissions are contrary to her own self substantiate facts

47. Respondent states that the material on record before this Hon’ble Court prima facie proves that the applicant has committed the act of perjury in her submission and the same has been described in detail.

48. It is most respectfully submitted that Orders by the Judiciary branch under proceedings have clearly and loudly mentioned that petitioner should come to the court in clean hands and Injunction Temporary as well as permanent Injunctions of petitioner was prohibited and rejected. As, her averment were not reliable based on documentary evidences presented by respondent, and It can be loudly and strongly observed that without strict proof petitioner applicants any averment is unsafe and unreliable, and are changing facts like air on earth.

49. It is most respectfully submitted that paragraphs and facts in instant application by applicant wife are self-submitted facts under oath by the main petitioner wife in more than two different courts having different legal stands
as pointed out above, thereby playing fraud with the court and prejudice the Ld. Court to allow relief and harassing the real innocent victims, and thereby committing the act of perjury under oath and solemn affirmation, and with
willful intention to injure, and to interfere administration of justice and harass the respondents.

{B} The petitioner has comitted an act of perjury in her following submissions

in view of her submission given above:

50. Respondent states that, the applicant has made the following willfully perjurious, intentionally deposed false and misleading statements on oath solemnly affirming, in her aforesaid “AFFIDAVITs” submitted by herself in this
Hon’ble court with oblique motives and are verified and Prohibitory Orders also have recognized as false by the respective Ld. Court. Which clearly proves that the main applicant wife is deposing false on affidavit in reply in this Hon’ble Court on her whims and fancies thereby committing the act of perjury by giving false evidence during the judicial proceedings in this Hon’ble court? Hence applicant wife is punishable for the act of perjury, which adversely affects the administration of justice.

51. Respondent states that, Applicant filed the Affidavit filed by main  applicant wife in applications submitted an Application under this instant Ld Court. are false, vexatious, concocted and misconceived to harass the Respondents and make him/them to run from pillar to post, Respondent states that applicant has not come with clean hands before this Hon’ble Court and suppressed material facts intentionally, creating new facts as delaying tactics and denying
early justice, thereby interfering in the administration of justice. It is pertinent to note that applicant is only  interested in making ambiguous and  vexatious allegation against the respondent without any iota of evidence in
support of her submissions and trying to mislead and misguide this Hon’ble court by making vague allegation against the respondent. Respondent states that petitioner has not come to the court in clean hands and this material fact have been intentionally suppressed and concealed or created on self-imaginations knowingly from this Hon’ble Court in the main application to mislead this Hon’ble Court, this is very clear and has been proved with substantial evidence by the respondent.

52. In order to appreciate the aforesaid aspect, I deem it necessary to reproduce the relevant provisions of the Cr.P.C.:

340. Procedure in cases mentioned in Section 195.

(1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) Record a finding to that effect;

(b) Make a complaint thereof in writing;

(c) Send it to a Magistrate of the first class having jurisdiction;

(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and

(e) Bind over any person to appear and give evidence before such  Magistrate

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-

(b) (i) Of any offence punishable under any of the following sections 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 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 of some other court to which that
court is subordinate.

40. In the conspectus of the aforesaid provisions, if the relevant provisions of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) are perused, it does appear that the provisions of Sections 193, 199, 200 and 209 are attracted. The said provisions read as under:

IPC Section 193. Punishment for false evidence

Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Explanation 1-A trial before a Court-martial; [* * *] is a judicial  proceeding.

Explanation 2-An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

IPC Section 199. False statement made in declaration which is by law receivable as evidence

Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public  servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which
is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.

IPC Section 200. Using as true such declaration knowing it to be false

Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. Explanation-A declaration which is inadmissible merely upon the ground of some informality, is a declaration within the meaning of Sections 199 to 200….

IPC Section 209. Dishonestly making false claim in Court

Whoever fraudulently or dishonestly, or with intent to injure or any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend
to two years, and shall also be liable to fine.

53. 14. Respondent states that thus material on record before this Hon’ble court and perusual of detail aforesaid description in this application clearly proves that applicant has committed act of perjury by intentionally giving enormous false and fabricated evidence during judicial proceeding in this Hon’ble court by submitting false in her “AFFIDAVITs”. Thus filing false affidavit in the court of law, causes obstruction in the course of justice and also adversely affecting the administration of justice. Also applicant cannot be permitted to take liberty of spoiling purity of justice. In this facts and circumstances, the respondent has filed this present application in this Hon’ble Court in exercise of jurisdiction of this Hon’ble court u/s 340(1) of thr Cr.P.C, 1973. Against the main applicant wife and it is to expedient in the interest of justice to prosecute the applicant as prima facie evidences are adduced in that behalf.
Hence applicant is punishable for the act of perjury, adversely affecting the administration of justice.

54. Respondent further states that all adverse allegations and incidents mentioned/deposed by the applicant in this Hon’ble court had never happened and the same are false, baseless, malicious, vexatious, concocted, futile and
imaginary story made intentionally to harass respondent from court to court across Uttar Pradesh states and put respondents under pressure by misusing the provision of law conveniently and cunningly in attempt to extort money from the respondent. it goes to show that, the main applicant wife is only interested in making ambiguous and vexatious allegations against the respondent without any iota of evidence in support of her submissions and trying to misguide the Hon’ble court by making vague allegations against respondent and whatever allegations where sole testimony of main applicant. In fact there is no proper allegation against the respondent. Respondent states and submits that, the continuation of prosecution against the respondent is not only the abuse of process of law, but also defeats the ends of the justice. The Applicant ‘s application u/s 498a, 323, 504, 506, 34 of IPC and ¾ of The Dowry Prohibition Acts devoid of merits and deserves to be dismissed with exemplary costs and suitable punishment in the interest of justice.

55. I say that therefore, it is clear from the above Para that the petitioner is guilty of the act of perjury, as she has made the aforesaid false statements on oath with solemn affirmation providing false information to this Hon’ble court, willingly and knowingly that the same are false and the respondent has submitted the documentary evidences that those statements are false. In these circumstances, the respondent has filed this present application in this Hon’ble court in exercise of jurisdiction of this Hon’ble court u/s 340(1) of the cr.p.c, 1973. Against the petitioner and it is expedient in the interest of justice to prosecute the petitioner as Prima Facie evidences are adduced in that behalf.

56. Respondent adopt each and every statement, submission and averments made in this application, that all statements are from applicant wife’s applications and are brought forth to the notice of the instant Ld. Court.

57. Respondent craves leave of this Hon’ble court to add, to alter and amend this application. Respondent carves leave to add, alter and amend this application.

58. Respondent had not filed any other application for the act of perjury committed by the applicant in this Hon’ble court against the applicant in any other Hon’ble court.

59. Respondent has not filed any other application for the act of perjury against the petitioner, either in this Hon’ble court or any other Hon’ble court for the subject matter hereto.

60. It is therefore, most humbly prayed by the respondent that; a. By considering the aforesaid facts and circumstances, respondent most humbly pray that this Hon’ble court be pleased to kindly charge the petitioner and
commit the matter to the concerned Metropolitan Magistrate court to prosecute the petitioner for the act of perjury in her application to implicate falsely to innocent victims.

b. In the peculiar facts and circumstances of the case. Your Honor may Kindly dismiss the application filed by the applicant under 200 Cr.P.C be dismissed with exemplary costs to meet the ends of justice

c. Costs of the proceedings may kindly be awarded to the Respondent from the applicant.

d. Initiate the proceedings of perjury for infringement of rights and harassment, using the sections which are for destitute women, the same are misused and harassment of respondent and female party thereby playing pranks
with the modesty of women of the women party.

e. Kindly pass such other suitable orders as may deem fit and proper to meet the ends of justice in the peculiar facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE ABOVENAMED RESPONDENT AS IN DUTY
BOUND SHALL EVER PRAY.
Solemnly affirmed at _________.
Dated; this ____day of December, 2010.
Respondent

V E R I F I C A T I O N

I, Mr. ____________________. ________Years of age, presently residing at
______________________________. The respondent above named do hereby state and
declare on solemn affirmation that whatever stated in the above Application is
true and correct as per my knowledge and belief; that no part of it is false and
nothing material has been concealed there from.

Solemnly affirmed at ____________.

Dated; this _____day of May, 2011. Respondent

Perjury CrPC 340

October 1, 2011 Leave a comment

IN THE COURT OF THE METROPOLITAN MAGISTRATE TRAFFIC COURT – I,

IA. NO.

IN

Crl.Misc.No.XX/2009

Between:

XXXXXXXXX                                                    . . . . . Petitioner

And

XXXXXXX                                                                   . . . . . Respondent

 

APPLICATION UNDER SECTION 340 – R/W SECTION 195B OF THE CODE OF CRIMINAL PROCEDURE AND SECTION 193, 196, 199, 209, 211, 463 & 471 OF IPC:

 

The respondent above named most respectfully submits as hereunder:

 

The address of the parties for the purpose of service of notice, summons, process etc., from this Hon’ble Court is shown in the cause title. Respondent may also be served through his counsel Sri xxxxxxxxxxxxx, Bangalore –XXXXXX.

 

1.       The respondent submits that the petitioner has made intentional false statements, produced fake, false, created and fabricated document and intentionally lied to gain relief from her main petition.

 

2.       The respondent further submits that, the petitioner has lied on oath before this Hon’ble court by suppressing the fact that she is a housewife whereas she is working and gainfully employed as XXXX from xxxxxx in XXXX, Bangalore and was earning a salary of XXXX/- in xxxxxxxxx itself through her XXXX bank salary account # XXXXXXXXXXXXX. The petitioner has lied with sole intention to mislead this Hon’ble court for wrongful gain and relief from her main petition.

 

3.       The respondent further submits that, in Para-X of the “EXAMINATION-IN-CHIEF BY WAY OF AFFIDAVIT” the petitioner has lied that a Television – Color SONY – 29” was provided to the respondent. The petitioner during her cross-examination held on XX-XX-XXXX had admitted that the TV was purchased in XXXX. Respondent has provided bills for TV purchased by him in XXXXXXXX to this Hon’ble court during respondent evidence in this case and had been marked EXRX & EXRX. These bills and EMI statements clearly establish that TV was purchased by respondent in XXXX, contrary to the false claims of petitioner. These documents clearly establish the false hood of the petitioner with a malafide intention to mislead this Hon’ble court for wrongful gain and relief from her main petition.

 

4.       –

 

5.       –

 

6.       The respondent submits that the petitioner has committed the grave offences, which are within the cognizance and jurisdiction of this Hon’ble Court and the petitioner is liable to be prosecuted and punished as per the provisions of the section 340 of Cr. P. C read with section 195B Cr.P.C for the offences committed under the sections 193, 196, 199, 209, 211, 463 & 471 OF IPC.

 

7.       The respondent seeks the leave of this Hon’ble Court to urge additional grounds and produce additional evidence during the course of the above proceedings.

PRAYER

 

WHEREFORE, the respondent above named most respectfully prays that this Hon’ble Court may be pleased to inquire into the offences defined under the sections 193, 196, 199, 209, 211, 463 & 471 of IPC as per the provisions of the section 340 of CrPC read with section 195B CrPC and deal with the petitioner in accordance with law for giving false statements, causing wrongful loss and deceiving this Hon’ble Court during the judicial proceeding in the interest of justice.

 

 

 

 

Advocate for respondent                                               Respondent

Categories: Perjury CrPC 340
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