Applicability of section 340 of CrPC, and 194 of IPC etc

A case of perjury where even though some witnesses had given contradictory statements in civil and criminal cases between same parties, a perjury case under CrPC 340 was not allowed by high court, due mainly to technicalities about applicability of CrPC 340 to facts of the case.

CRM No.23818-M of 2009 1    IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CRM No.23818-M of 2009

Date of Decision: 4.09.2009

Smt.Sanjay Lata & Anr. …Petitioners  Vs.

The State of Haryana & Anr. ..Respondents     Coram: Hon’ble Mr. Justice Vinod
K.Sharma

Present: Mr.V.P.Singh, Advocate,

for the petitioner.

Mr.Rajeev Kawatra, Sr.DAG, Haryana.

for respondent No.1.          Mr.H.N.Mehtani & Mr.V.P.Kashyap, Advocates,

for respondent No.2.

—

1. Whether Reporters of Local Newspapers may be allowed to see the  judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in Digest?

—

CRM No.23818-M of 2009 2    Vinod K.Sharma,J. (Oral)

This petition under section 482 Cr.PC has been moved for  quashing  of complaint dated 14.10.2006 filed under section 194 IPC by  Shri R.S.Virk,  Additional Sessions Judge-I, Bhiwani, pending in the court  of learned Chief  Judicial Magistrate Bhiwani.  Smt.Sanjay lata filed a complaint under sections  302/498-  A/406 and 120-B IPC against Amrit Gautam and others on the pleadings  that ever since her marriage on 27.4.1996 she was not given due recognition  and  instead of her having studied up to M.A,. B.Ed. level and her parents  having  spent 3 lacs on her marriage accused/husband and his relatives were  not  satisfied with the dowry brought by her and she was taunted time and  again with  the demand of fridge, scooter and Rs.5000/- (Rupees fifteen  hundred only),
besides gold neckless, Saris etc to which she expressed her  inability. It was  also pleaded that she was assaulted and even starved,  wrongly confined in the room during summer and was even bolted inside a  bath room in December, 1996.  She was even denied use of quilt with a view  to ensure her death by exposure to  the cold.  It was further case set up that she had given birth to a male  child  on 5.9.1997. In spite of the fact that he was only 2.6 kilograms in  weight and  she was also very weak, the accused forcibly got her discharge  from the said  hospital on 7.9.1997 and did not allow her parents and  relatives to see the new  born child in the hospital or at her matrimonial  home. It was pleaded that  accused No.5 uncle of the accused brought some  liquid in a spoon which he had  administered to the new born by picking up CRM No.23818-M of 2009 3    in his  own arms and thereafter the child remained motionless and shortly it  was  discovered that he had expired. Other allegations were also levelled  claiming
prosecution of the accused for the offences referred to above.  The accused was  tried. Learned Additional Sessions Judge-I,  Bhiwani found the complaint to be  false and consequently acquitted the  accused The operative part of the order reads as under:-  “19. In view of the above appraisal of prosecution evidence, I  hold that the complaint in hand was falsely instituted by the  complainant out  of malice and ill-will towards the accused  husband and his co-accused, all of whom are hereby acquitted  of the offences they stand charged with. As discussed  above,  the complainant Sanjay lata and her father Sham Sunder stand  proved to have deposed falsely specially qua their testimony in  the instant complaint  case regarding ill treatment of the  complainant wife in connection with demand of dowry by the  accused husband Amrit, although while appearing as RW 1 and  RW
4 respectively during the hearing of HMA petition No.19  of 11.3.1999 titled  Amrit Lal Gautam Vs. Sanjay Lata decided  on 7.9.2001 in favour of accused  husband, they had admitted  that the accused/husband had never ill treated the  complainant  wife nor ever demanded any dowry. Such two contradictory  versions  in two courts of law by these two witnesses indicate  that these two witnesses  have scant concern for the law of the  land. Such conduct cannot be viewed  lightly, specially when CRM No.23818-M of 2009 4    through the false complaint
in hand these two witnesses have  sought conviction of the accused for a capital  offence.  Accordingly in the light of the provisions contained in Section  185  (1)(b)(i) Cr.PC read with section 340 Cr.PC, I am of the  considered view that  the complainant Sanjay Lata and her  father Sham Sunder should be tried, not  summarily under  Section 344 Cr.PC, but in the light of provisions contained in  Section 344 (3) Cr.P.C., they should be sent up to the court of  competent  jurisdiction to stand regular trial qua commission by  them of an offence  punishable under section 194 IPC. File be  consigned to the record room,after  due compliance.”  Copy of the order was sent to the court of CJM, Bhiwani to  prosecute the petitioner under section 194 IPC.  The parties have settled their  dispute.

The petitioner sought quashing of complaint primarily on the  ground that mere fact that a witness made contradictory statement on 2  different stages in judicial proceedings is not by itself always sufficient to  justify
the prosecution for perjury. In support of this contention reliance is  placed  on the judgment of Hon’ble Rajasthan High Court in the case of  Sanjiv Arora Vs. State of Rajasthan 2008 (2) C.C.J. 310. The contention  of the learned counsel  for the petitioner, therefore, is that even if the  allegations are taken on its  face value no offence under section 194 IPC is  made out.

Learned counsel for the petitioner also contends that initiating CRM No.23818-M of 2009 5    criminal proceedings is illegal and has been passed in  violation of the  provisions contained under section 340 Cr.PC. Section 340 Cr.P.C. Reads as  under:-

Section 340 of the Code of criminal Procedure reads as under:-  ”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 jurisdiction;  (d) take sufficient security for the appearance of 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.

(2) The power conferred on a Court by sub-section (1) in CRM  No.23818-M of 2009 6    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  Section 195.

(3) A complaint made under this section shall be signed-  (a) where  the Court making the 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.  (4) In this section, “Court” has the same meaning as in Section  195.

Learned counsel for the petitioner placed reliance on the  judgment  of this court in Crl. Misc. No.3220-M of 1986 titled as  H.S.Grover, Accounts  Officer Vs. Rajinder Singh decided on 4.8.1986  wherein this Hon’ble Court has  been pleased to lay down as under:-  ” The object of this section is to record a  finding to that  effect and then make a complaint thereof in writing to a Court  of law. Thus, the motivating factor is that such enquiry should  be conducted if  it is expedient in the interest of justice. The  second one is that an offence  of the kind mentioned therein  must appear to have been committed, for which the  Court a one  under section 195(1)(b), Code of Criminal Procedure, chooses  to  become a complaint.

CRM No.23818-M of 2009 7    In the instant cases, as the facts are patent,  neither of the  two considerations surface. In the first place, neither of the two  suits were decided by the trial Judge and the Court had no  occasion to  determine the falsity or otherwise of the documents  produced by the  petitioners. To repeat here, it is observed that  one suit was dismissed as  withdrawn and the other one went to  the Tribunal to be dismissed. Secondly, the  Court received the  documents allegedly false and forged from the petitioners as  part of the Court files and nowhere were offences committed in  relation to  those documents while the mater was pending in the  court. In other words,  offences were not committed when the  documents stood filed in the Courts. They  had introduced on the  file as pleadings or proof in the pro-fabricated formed;  in other  words, already falsified and forged. A Full Bench of this curt  in  Crl.Misc. No.5095 M of 1985 (Harbans Singh Vs. State of  Punjab) decided on  7.5.1986 held that in such a situation  section 195(1)(b)(ii) of the Code of  Criminal Procedure would  not be attracted and the Court is not obliged under  the section  195(1)(b)(ii) to be the complainant. Similarly, there was no  occasion to hold the documents and pleadings to be false. Thus,  plainly, on  both aspects of the case, the proceedings against the  petitioners on  applications under section 340 of the Code of  Criminal Procedure are nothing  but abuse of the process of the  Court and deserve to be struck off from the  file of he learned CRM No.23818-M of 2009 8    Judge. It is held accordingly.

For the aforesaid reasons, these petitions, are accepted and the proceedings against the petitioners are quashed.  Ordered accordingly.”

to contend that the continuation of proceedings, therefore,  would  be nothing but misuse of the process of court as proceedings are in  violation  of statutory provision as the learned court has not recorded a  finding that it
is expedient in the interest of justice that enquiry be made into  offence.

The contention raised deserves to be accepted in view of law  laid  down by this court in CRM No.3220-M of 1986 (H.S.Grover Vs.  Rajinder Singh  (supra).

This petition is allowed and the complaint and subsequent  proceedings pending in the court of learned Chief Judicial Magistrate  Bhiwani,  pursuant to the complaint made by learned Additional Sessions  Judge-I, Bhiwani  are ordered to be quashed.

(Vinod K.Sharma)

4.09.2009 Judge rp

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

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 13, 2010

Date of Order: August 30th 2010

+ Crl.MC No. 471/2009

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

Rajesh Kumar Jain & Anr. …Respondents Counsels:

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

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

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

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

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

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

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

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

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

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

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

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

imposed on a Magistrate for passing detailed order while

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

be quashed merely on the ground that the Magistrate had

not passed a speaking order.”

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

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

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

(1) No court shall take cognizance-

(a)xxxxx

(i) xxxxxxxxxx

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

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

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

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

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

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

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

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

16. The petition stands allowed.

August 30, 2010 SHIV NARAYAN DHINGRA, J rd

Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 8 Of 8

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

DATE: 26-08-2010

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN

Review Application Nos.108, 109 and 110 of 2010

S.Deepak ..Petitioner in all Review Applications

Versus

D.Anitha ..Respondent in all Review Applications

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

For Respondent : Mr.M.Palanivel

COMMON ORDER

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

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

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

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

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

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

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

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

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

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

To

1) The Family Court, Salem.

2) The Family Court at Chennai.

3) The Principal Judge, Family Court,

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

Court No.27

Criminal Misc. Application No.30509 of 2009

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

Hon. A.K. Roopanwal, J.

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

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

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

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

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

Every allegations do not justify initiation of prosecution under 340 CRPC

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(CRL) 286/2007

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

versus

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

CORAM:

HON’BLE MR. JUSTICE SANJIV KHANNA

ORDER

% 18.08.2010

CRL.M.A. No. 13869/2010

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

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

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

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

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

consideration the impact that commission of such offence has on the

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

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

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

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

SANJIV KHANNA, J.

AUGUST 18, 2010

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

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

Bench: M Anwar

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

JUDGMENT

Mohamed Anwar, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the First Class having jurisdiction :

(d) xxxx, (e) xxxx, (2) xxxx, (3) xxxx, (4) xxxx.”

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

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

“(1) No Court shall take cognizance :

(a)xxx xxx xxx

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

(ii) xxx xxx xxx

(iii) xxx xxx xxx

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

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

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

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

And, whoever, intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”

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

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

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

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

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

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

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

24. Hence, the appeal is dismissed.

Perjury application must be decided first before proceeding with the case

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

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

Hon’ble A. Mateen, J.

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

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

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

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

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

With the above observations the petition is disposed of finally.

9.1.2003 sd- A.Mateen

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

Bench: H B.L.

PETITIONER:

CHANDRA SHASHI

Vs.

RESPONDENT:

ANIL KUMAR VERMA

DATE OF JUDGMENT14/11/1994

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

KULDIP SINGH (J)

CITATION:

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

1994 SCALE (4)944

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by

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

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

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

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

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

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

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

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

.LM15

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

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

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

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

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

426

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

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

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

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

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

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

427

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

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

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

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

6 (1993) 2 SCC 533

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

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

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

18. The proceeding stands disposed of accordingly. 433

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

SCA/9161/2010 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 9161 of 2010

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

BABUBHAI MERVANBHAI PATEL – Petitioner

Versus

STATE OF GUJARAT THROUGH SECRETARY & 1 – Respondents

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

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

CORAM :

HONOURABLE MR.JUSTICE M.R. SHAH

Date : 18/08/2010

ORAL ORDER

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

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

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

[M.R.SHAH,J]

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

Court No.27

Criminal Misc. Application No.30509 of 2009

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

Hon. A.K. Roopanwal, J.

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

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

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

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

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

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