PETITIONER: CHAJOO RAM Vs. RESPONDENT: RADHEY SHYAM & ANR. DATE OF JUDGMENT23/03/1971 BENCH: DUA, I.D. BENCH: DUA, I.D. SIKRI, S.M. (CJ) REDDY, P. JAGANMOHAN CITATION: 1971 AIR 1367 1971 SCR 172 1971 SCC (1) 774 CITATOR INFO : R 1973 SC 494 (14) R 1978 SC1753 (16) RF 1992 SC1701 (41) ACT: Code of Criminal Procedure (Act 5 of 1898), ss. 476 and 479--Scope of--Filing of false affidavit if appearing as witness. Practice--Prosecution for perjury--When should be ordered. HEADNOTE: Sevreal complaints were made to the District Magistrate by the respondent about the, appellant while he was functioning as a sarpanch. As no action was taken on those complaints the respondent filed a writ petition in the High Court praying for a maridamus directing inquiries to be made. The writ petition was allowed and an inquiry was directed to be held. The inquiry was held by the Sub-Divisional Magistrate and it was held that there were only irregularities committed by the appellant, that be did not abuse his position in any way, and that no action need be taken against him. In those proceedings the appellant filed an affidavit that he had not acted as Sarpanch during the relevant period but only looked after the work of the Sarpanch. The respondent presented an application under s. 476, Cr. P. C., in the Court of the District Magistrate praying for the appellant's prosecution under ss. 193, 181 and 182 I.P.C., for having deliberately filed a false affidavit. The matter was inquired into by District Magistrate and after going through the entire material he held that the case of swearing of a false affidavit was not made out against the appellant. An appeal to the Sessions Court and a revision to the High Court by the respondent were dismissed. In the course of the writ proceedings in the High Court several affidavits were filed and the appellant asserted in those affidavits also that he had not acted as a Sarpanch during the relevant period. The respondent again moved the High Court by filing an application under s. 476, Cr. P. C., for the appellant's prosecution for making a false statement in his affidavit. A single Judge of the High Court ordered that a complaint be made against the appellant. The matter was taken on appeal to a Division Bench by the appellant and it was contended that in view of s. 479-A Cr. P. C., the appellant could not be prosecuted under s. 476 Cr. P. C., but the contention was repelled and it was held that a person filing an affidavit could not be considered to have appeared as a witness before the Court as contemplated by s. 479-A. In appeal to this Court, HELD:In s. 479 A(6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479 for the prosecution of a person for giving or fabricating false evidence if in respect of such a person proceedings could be taken under s. 479-A. But under s. 479-A it is only a wit- ness who has appeared before the court that can be proceeded against. In the present case, the appellant filed a sworn affidavit but it was not possible to hold that by doing so he appeared as a witness. Since he did not appear as a witness before the High Court s. 479-A was inapplicable and did not operate as a bar to the proceedings under s. 476 Cr. P. C. [177A-E] 173 (2)But there is nothing to show that the explanation given by the appellant that he did not act as Sarpanch at the relevant time but only did his who as a panch, was false. [179B] A prosecution for perjury should be sanctioned by courts only in those cases Where' perjury appears to be deliberate and Conscious and a conviction is reasonable probabe, and when it is considered expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be a prima facie case of deliberate falsehood on a matter substance and the court should be satisfied that there is reasonable foundation for the charge. The giving of false evidence and the filling of false affidavits is no doubt an evil which must be effectively curbed but to start prosecution for prejudgment to readily and too frequently and without care and caution defeats its very purpose.[179E-G] In the present case, the material on record Was not sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The High Court did not give due weight to the following facts: (a) The appellant was a Panch and was 'authorised to act as Such and his explanation was not implausible.(b) In the order of the Disconsidered inexpedient to initiate prosecution on substantially the same charge(c) There was a long lapse of time of more than 10 year's since the filing of the affidavit and during this time, the appellant must have suffered both mentally and financially. (d) In view of the nature of the alleged prejury such a long delay also militates against the expediency of prosecution. [179G-H; 180A-C] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 195 of
1968.
Appeal by special leave from the judgment And order dated
March 13, 1968 of the Allahabad High Court, Lucknow Bench in
Criminal No. 175 of 1964.
D. P. Uniyal and S. S. Shukla, for the appellant.
B. N. Sharma, C. P. Lal and N. N. Sharma, for respondent
No. 1.
O. P. Rana, for respondent No. 2.
The Judgment of the Court was delivered by
Dua, J.-This appeal by special leave is directed against the
judgment and order of a Division Bench of the Allahabad High
Court dated March 13, 1968 affirming the order of a learned
single Judge of that Court directing that a complaint be
filed against the appellant for his prosecution for making a
false statement in para 10 of his affidavit dated July 6,
1960 to the effect that he had not been acting as Sarpanch
till December 7, 1957.
The relevant facts necessary for understanding the
controversy may now be briefly stated. Chajoo Ram,
appellant, was elected
174
Sarpanch” of the Nyaya Panehay of of Risia Bazar.Tehsil Nan-
pora, District Bharaic’ at the election held for that office
on October 29, 1956. Radhey Shyam (respondent in this
Court) who was defeated in that election filed an election
petition which was dismissed on June 3, 1958. During the
trial of that petition an injunction was issued restraining
the appellant from functioning as a Sarpanch. That order
remained in force from December 3, 1956 to December 10,
1957. After the dismissal of the election petition, the
appellant started functioning as Sarpanch. Several
complaints also seem to have been made by Radhey Shyam and
some others to the District. Magistrate, alleging irre-
gularities to have been committed by the, appellant. As no
action was taken on those complaints Radhey Shyam,
respondent, filed a writ petition (W.P. No-. 89 of 1960) in
the Allahabad High Court praying for a mandamus’ directing
enquiries into the allegations contained in his complaint
against the appellant. This write petition was allowed on-
September 4, 1961 and a writ of mandamus was issued
directing the District Magistrate and thee Sub-Divisional
Magistrate to hold an enquiry against the appellant but the
question of determining whether it was in public interest to
hold an enquiry was left to those authorities. In the
course of the writ proceedings several affidavits were filed
in the High Court by the contesting parties. We are,
however, only concerned with para 10 of the affidavit dated
July 6, 1960 filed by the appellant. That paragraph reads :
“That the deponent was not acting as a
Sarpanch till 7th December, 1957, when he was
given over charge of the office of Sarpanch by
opposite party No. 4 Chhotey Lal Sahayak
Sarpanch. Except the cases mentioned below
none were entrusted to the benches by the
deponent but were entrusted by the Sahayak
Sarpanch opposite party No. 4 who was acting
in place of the deponent under the orders of
the court after the petitioner had filed
election petition. The cases mentioned below
were dealt by the deponent under the old
procedure in the absence of any directions
issued to him.”
Then four cases are mentioned which had been
filed in November, 1956. In order to fully
appreciate the contents of this paragraph it
is necessary to reproduce paras 9 and 10 of
Raddey Shyam’s affidavit dated March 28, 1960
to which the appellant’s affidavit dated July
6, 1960 was a reply:
“9. That the Sarpanch (opposite party No. 3)
referred many cases to the Special Bench
constituted by him. 21 cases out of the first
list of 22 cases were allotted to this Special
Bench by him. Further out of 62 criminal
cases and 35 civil cases instituted. in the
year 1956-57 the
175
Bench consisting of the deponent as a Panch
(Bench, No.1) was Allotted only 16 criminal
and 8 civil cases. whereas, it should have
been allotted 21 criminal and 12 civil cases.
10.That in many cases the dependent was not
informed of the dates of the hearing fixed by
Sarpanch and many a time he could not
therefore, present himself in the Bench and
the cases were decided in his absence.
Sarpanch who was not a member of this Bench,
participated in the proceedings of this
Bench.”
In reply to Para 9 of this affidavit the
appellant had stated in his affidavit of July
6, 1960:-
“There is no dispute with regard to the
procedure laid down in this paragraph. It is-
a new amendment.”
There was a rejoinder affidavit dated July 15,
1960 filed by Radhey Shyam in which reply to
Para 10 of the appellant’s affidavit dated
July 6 , 1960 is contained in Para 8 and it
reads as follows:
“Regarding Para 10-2it is false and denied
that Chajoo Ram, did not act as Sarpanch till
the 7th December, 1957. As a matter of fact
he was acting as Sarpanch throughout in
violation of the stay order passed against
him. It is also denied that other cases
except those mentioned by Chajoo Ram in this
Para were not referred to the Benches by him.
Chajoo Ram was throughout acting as Sarpanch
and he in that capacity referred cases to
benches according to his choice. The
procedure followed by Sri Chajoo Ram opposite
party no. 3 was in violation of the procedure
laid down in the Panchayat Raj Act and the
Rules framed thereunder. The rest of the
contents of this Para are denied.”
The appellant filed a counter-affidavit dated July 24, 1960
to this rejoinder. As we are only concerned with the
contents ,of Para 10 in the appellant’s affidavit dated July
6, 1960 we need only refer to the relevant assertions in
this counter-affidavit. In Para I the deponent stated that
he had not been acting as a Sarpanch on June 6, 1957 and
with regard to annexure 34 it was submitted that the entire
document had been written by Shri B. P. Joshi, Mantri whose
duty it was to see that the provisions of the Panchayat Raj
Act and Rules and bye-laws made thereunder :and all orders
issued or authorized by the Government or prescribed
authority were complied with by the Gaon Panchayat and Nyaya
Panchayat and to bring to their notice any irregularity
176
or omission on their part. Shri Chhottey Lal, Sahayak
Sarpanch had gone out on June 3, 1957 and had asked the
deponent to do-ministerial work which he could do under the
Act. Radhey Shyam, Respondent, filed a further rejoinder to
this counter affidavit on the same day viz. July 24, 1960
but in this rejoinder nothing new Was Stated on this point.
On December 10, 1962 Rafhey Shyam, Respondent, Moved in the
High Court an application under s.476, Cr. P.C. for the
appellant’s prosecution. The learned single Judge directed
by his order dated January 27, 1964 that a complaint be made
against the appellant in respect of two counts, one of them,
which survives for our consideration, being that he had made
a false statement in paragraph 10 of. his affidavit dated
July 6, 1960 to the effect that he had not been acting as
Sarpanch till December 7, 1957. On Chajoo Ram’s appeal
before a Division Bench it was urged on behalf of Radhey
Shyam is a preliminary point that the appeal was premature.
This point was referred to a Full Bench which answered the
reference negativing the Preliminary objection. When the
appeal came back to the Division Bench it was urged on
behalf of the appellant that in view of the provisions of
s. 479-A, Cr. P. C. no prosecution could be taken under s.
476 of the Code. This contention was repelled and it was
held that a person filing an affidavit in court could not be
considered to have appeared as a witness before that court
as contemplated by s. 479-A. Dealing with the merits the
Division Bench of the High Court observed that the
respondent had placed on the record four receipts (nos. 39
t0 42) and “a copy of the report supposed to have been
submitted by the appellant as Sarpanch to the Panchayat Raj
Officer” indicating that the appellant had acted as Sarpanch
between June 4 and June 6,1957. The appellant’s
explanation, that Chhotey Lal, Sahayak parpanch was on leave
from June, 4 to June 11, 1957 and that the appellant had
merely worked for Chhotey Lal in those days, was not
accepted for the reason that this explanation was neither
included in the affidavit filed by the appellant in reply to
the application under s. 476, Cr. P.C. nor in a
supplementary affidavit filed by him in connection with some
other matter. The fact that Radhey Shyam, respondent, was
prompted by considerations of malice in initiating these
proceedings was considered to be immaterial. With respect
to the second statement, which was also the subject matter
of the learned single Judge’s direction, the Division Bench
held that charge to be unsustainable and the order of the
single Judge directing a complaint to be filed with respect
to that charge was set aside. The appeal was accordingly
allowed in part and in regard to para 10 of the affidavit
dated July 6, 1960 it was dismissed. It is this order which
is assailed before us.
177
The first point which was pressed before us relates to the
effect of s. 479-A, Cr. P.C. This section was added to the
Code of Criminal Procedure by Act 26 of 1955 with the object
of eradicating the evils of perjury. It overrides the
provisions of ss. 476 to 479. In sub-s. (6) it is expressly
provided that no proceedings shall be taken under ss. 476 to
479 (inclusive) for the prosecution of a person for giving
or fabricating false evidence if in respect of such a person
proceedings may be taken under this section. The question
to be seen, however, is if s. 479-A applies to the present
case. Sub-section (1) of this section, so, far as relevant,
lays down that not withstanding anything contained in ss.
476 to 479 (inclusive) when a civil, revenue or criminal
court is of opinion that any person appearing before it as a
witness- has intentionally given false evidence in any stage
of judicial proceedings or has intentionally fabricated
false evidence for the purpose of being used in any stage of
the judicial proceeding it may, after complying with the
other conditions contained in this section, make a complaint
in writing and forward the same to a magistrate. The
crucial point to be noticed in this section is that it is
only a witness who has appeared before the court who can be
proceeded against. Now, the appellant quite clearly did not
appear as a witness before the High Court. He undoubtedly
filed sworn affidavit but it is not possible to hold that by
doing so he could be said to have appeared as a witness.
Section 479-A, Cr. P. C. is, therefore, inapplicable and it
cannot operate as a bar to,, the proceedings under s. 476,
Cr P.C.
Before dealing with the merits of the case we consider it
proper to refer to the proceedings before the District
Magistrate, Bharaic pursuant to the order of the High Court
dated September 4, 1961. An enquiry, it appears, was got
made by the District Magistrate through the Sub-Divisional
Magistrate (Shri Nageshwar Singh). According to the report
of the Sub-Divisional Magistrate dated January 4, 1963
Chajoo Ram, appellant, was only found lo have committed some
irregularities in disposing of the cases but without any
dishonest motive on his part. In the opinion of the Sub-
Divisional Magistrate, no action was called for against the
appellant. It appears that the District Magistrate on
February 17, 1963 desired a, further probe into the matter.
Shri K. P. Mathur, S.D.O. after going through the records of
the Nyaya Panchayat once again endorsed the report of his
predecessor observing
“I also agree with Shri Nageshwar Singh that
the allegations had no mala fide intention,
the irregularities that. had been found were
due to inexperience or ignorance and are
mostly ‘commonly found in all Nyaya Panchayats
not only in this district but in other
districts
12-1 S.C. India/71
178
also. Shri Chajoo Ram does not appear to have abused his
position in any way.”
It appears that in those proceedings also the appellant had
filed an affidavit on December 8, 1961, affirming that he
had not acted as Sarpanch for one year and that Chhotey Lal,
Sahayak Sarpanch looked after the work of the, Sarpanch
during that period. Radhey Shyam, respondent, presented an
application tinder s. 476, Cr. P. C. in the court of the
District Magistrate also praying for the appellant’s
prosecution- under ss. 193 / 181 / 182, I.P.C. for having
deliberately filed a false affidavit. The matter was
inquired into by the District Magistrate and after going
through the entire material placed before him he came to the
conclusion that the explanation given by Chajoo Ram was
quite plausible and it was “doubtful to deduce” from the
material placed before him “whether he had really acted as a
Sarpanch of the Nyaya Panchayat or only as a Panch”. The
District Magistrate specifically referred to the files of
some cases on which Radhey Shyam had relied in support of
his allegation that the appellant had acted as Sarpanch but
the District Magistrate was unable to uphold this
allegation. Four receipts nos. 77 and 59 to 61 were also
relied upon by Radhey Shyam in support of his allegation but
here again the District Magistrate was unable to hold that
the appellant had acted as Sarpanch. As a result of the
preliminary enquiry the District Magistrate held that the
case of swearing a false affidavit was not made out against
the appellant and the notice issued to him was discharged on
May 4, 1964. Radhey Shyam took the matter on appeal to the
court of the Sessions Judge assailing the order of the
District Magistrate dated, May 4, 1964, but without success.
That court also came to the conclusion that the appellant
was not shown to have acted as Sarpanch during the period in
question. The final conclusion of the Sessions Judge was
expressed in these words.
“The Court has also to consider whether after
filing a complaint there is a possibility of
conviction. The laches pointed out on behalf
of the appellant committed by Chajju Ram can
be explained easily in law courts. I agree
with the learned counsel for the respondent
that the possibility of the conviction of the
respondent appears to be quite remote. The
learned court below after carefully
considering all the facts and circumstances of
the case came to the conclusion that it is not
a fit case in which a complaint should be
filed, and I agree with this view of the
learned court. AR the circumstances have been
fully explained by Chajju Ram.”
We are informed at the bar that a revision to the High Court
against the order of the Sessions Judge was also dismissed
but that order is not included in the printed record.
179
Before us reliance has been placed on four receipts viz.
receipt no. 59 and 60 dated June 4, 1957 for 12 ps. as price
of application form, receipt no. 61 dated June 6, 1957 on
account of price of application form and receipt no. 77
dated June 4, 1957 for 53 ps. on account of summons fee
which is said to have been received by the appellant. On
these days, according to the appellant, the Sahayak Sarpanch
was on leave. There is nothing to suggest that this
explanation is false and we do not think that on the basis
of these three receipts the appellant can be said to have
acted as a Sarpanch. It is not shown that this was the
function only of the Sarpanch and a Panch could in no
circumstances sign a receipt. The next document on which
reliance is placed is a kind of a report to the Panchayat
Raj Officer dated June 6, 1957 informing him that some
Panchas had not attended since the establishment of the
Panchayat. In this document the appellant’s signatures and
the signatures of the Secretary, B.P. Joshi, both appear
below the endorsement forwarding this report to the
Panchayat Inspector for information and necessary action.
This was explained by the appellant in his affidavit where
he stated that the Secretary had inserted the word
“Sarpanch” and on the appellant’s objection to the use of
this word, the Secretary bad replied that this was a formal
matter. From this document also we do not think it is
possible to hold that the appellant intended to act as
Sarpanch on June 6. 1957.
The prosecution for perjury should be sanctioned by courts
,only in those cases where the perjury appears to be
deliberate and conscious and the conviction is reasonably
probable or likely. No doubt giving of false evidence and
filing false affidavit is an evil which must be effectively
curbed with a strong hand but to start prosecution for
perjury too readily and too frequently with,out due care and
caution and on inconclusive and doubtful material defeats
its very purpose. Prosecution should be ordered when it is
considered expedient in the interests of justice to punish
the delinquent and not merely because there is some
inaccuracy in the statement which may be innocent or
immaterial. There must be prima facie case of deliberate
falsehood on a matter ,of substance and the court should be
satisfied that there is reasonable foundation for the
charge. In the present case we do not think the material
brought to our notice was sufficiently adequate to justify
the conclusion that it is expedient in the interests of
justice to file a complaint. The approach of the High Court
seems somewhat mechanical and superficial: it does not
reflect the requisite judicial deliberation : it seems to
have ignored the fact that the appellant was a Panch and
authorized to act as such and his explanation was not
implausible. The High Court further appears to have failed
to give requisite weight to the
180
order of the District Magistrate which was confirmed. by the
Sessions Judge, in which it was’ considered inexpedient to
initiate prosecution on the charge, of alleged false
affidavit that the appellant had not acted as Sarpanch
during the period of the stay order. The subject matter of
the charge before the District Magistrate was substantially
the same as in the present case. Lastly, there is also the
question of long lapse of time of more than ten years since
the filing of the affidavit which is the subject matter of
the charge. This factor is also not wholly irrelevant for
considering the question of expediency of initiating
prosecution for the alleged perjury. In view of the nature
of the alleged perjury in this case this long delay also
militates against expediency of prosecution. And then by
reason of the pendency of these proceedings since 1962 and
earlier similar proceedings before the District Magistrate
also the appellant must have suffered both mentally and
financially. In view of all these circumstances we are
constrained to allow the appeal and set aside the order
directing complaint to be filed.
V.P.S. Appeal allowed.
181