[CASE NUMBER] 28/07/2017 Shri [ENTITY], learned counsel for the applicant. Shri [ENTITY], learned senior counsel with Shri JS. Hora, learned counsel for the respondents.
Heard on [CASE NUMBER], which is an application under [SECTION] of the [ACT]
Appellant filed this application averring that a Civil Suit was filed by Kailash Grih Nirman Sahakari Samiti through its president Mr. [ENTITY] (Respondent no.1) before the Court of II ADJ, Jabalpur for declaration and possession of the suit plot. During the course of the proceeding of the suit, respondent/plaintiff gave some false statement before the trial Court on which the appellant/defendant filed an application under [SECTION] of the [ACT] but the same was rejected by the trial Court, against which appellant filed this Criminal Appeal.
During pendency of this appeal, respondent no.1 again put forward false information by way of filing the reply of appellant's application. Respondents No.1 in Para No.6 (ii) of his reply stated as under :-
"It is submitted that a civil suit bearing No.51- A/1966 was filed by Miss [ENTITY] against the society and its office bearers challenging the sale deed dated 21/01/1963 as null and void. It is submitted that in the said civil suit a permanent injunction order was passed against the answering respondent with respect to possession of the said suit land. It is submitted that some of the members had entered into a compromise with Miss [ENTITY] in consequence to which they purchased the said plot from her directly."
But the aforesaid averments are absolutely false since the suit by Ms. [ENTITY] and others was not filed for declaring the sale deed dated 21/01/1963 null and void and no order of permanent injunction was granted in this suit as final relief and in this case compromise activities started somewhere in the year 1990 and Ms. [ENTITY] had died much earlier to that, hence when Ms. [ENTITY] was no more at that time, the question of compromise and getting sale deed registered herself does not arise. So aforesaid averments of the respondents are totally false. Likewise, in Para-6(iii) of his reply respondent no1 stated as under:-
"It is submitted that in respect to plot No.4 & 6 were allotted to Smt. [ENTITY] and [ENTITY], however possession could not be handed over to them. It is submitted that [ENTITY] purchased the said plot from [ENTITY] for which permission was not taken by Shri [ENTITY] from the answering respondent."
The aforesaid statement is also false. The society duly received consideration from Smt. [ENTITY] on behalf of [ENTITY] against the plot through its book and issued proper receipt. Thereafter, a valid share certificate was issued to Smt. [ENTITY] approving that transfer. So in the interest of justice criminal case under [SECTION], [SECTION], [SECTION] of the [ACT] be registered against the non-applicants/respondents.
Respondent no.1 in his reply opposed the prayer stating that earlier the applicant filed an application under [SECTION] of the [ACT] in [CASE NUMBER], which was dismissed, against which appellant filed this criminal appeal, in which appellant again filed this application under [SECTION] of the [ACT] alleging that certain facts in the reply of appellant's appeal memo filed by the Mr. [ENTITY] on behalf of respondent no.1 along with affidavit are untrue. The application filed by the appellant is wholly misconceived and without substance as nothing in the reply filed by the respondent goes to suggest that any intentional fallacious statement has been made therein by the respondent on oath which fulfills the requirement and ingredients of [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] Warranting any prosecution thereby. Provisions of [SECTION] of the [ACT] are only attracted if there is a prima facie case, which goes to suggest the existence of a mens rea or criminal intention in rendering the alleged false statement by the accused person. As per the allegation levelled in the instant application and averments made therein no case has been made out so as to suggest what mens rea or criminal intention existed on the part of the respondent for having made the alleged fallacious statements. Regarding alleged false statement that "A [CASE NUMBER] was filed by one Ms. [ENTITY] against the non-applicant society for declaring the sale deed dated 21/01/63 as null and void". It is submitted that the said statement was made based on the knowledge acquired by the respondent (current president of the society) as at that point of time the copy of the civil suit was not available with them. On inspection of the records in this respect the respondent stand corrected and submits that said civil suit was filed for Declaration and Permanent Injunction. As regard to incorrect statement pertaining to Permanent Injunction inadvertently the world permanent injunction was mentioned in the reply instead of temporary injunction and pertaining to a compromise that the appellant is reading said statement, not in the correct perspective. As regard to "no permission being taken by Shri [ENTITY] from the society before sale of plot to [ENTITY]" is concerned. it is submitted that the said statement made by the respondent based on an affidavit filed under [SECTION] of [ACT] by one Late [ENTITY] before the Deputy Registrar. It is apparent that respondent has not made any fallacious statement in its reply with a malafide intention so as to attract the provisions of the Section [SECTION] of CrPC.Hence application should be rejected. Learned counsel of the appellant submitted that filing of affidavit containing false facts attract the provisions of [SECTION] of [ACT]. Because respondent filed an affidavit mentioning some false fact. So respondent be prosecuted for perjury In this regard he also placed reliance on apex judgement passed in [PRECEDENT]. and the Allahabad high court judgement passed in [PRECEDENT] reported in A.I.R. [SECTION]0 Allahabad 490.
This court has gone through the record and argument put forth by the counsel of both the parties. [SECTION] of the [ACT] reads as under:-
"[SECTION]. 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 [SECTION], 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."
On reading the provisions of [SECTION] [ACT] it is clear that before a direction either for an inquiry or for prosecution the Court has to form an opinion that it is "expedient in the interest of justice" that an inquiry should be made into any such offence. The meaning of the word "expedient in the interest of justice" is that forming of the opinion is a sine qua non for proceedings to launch a prosecution for perjury.
Although in the case of [PRECEDENT] (supra) relied by the learned counsel of the appellant the apex court held "A global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as compared to the number of such cases prior to that. This ' is illustrative of the malaise that is slowly but surely creeping in. This 'trend' is certainly an unhealthy one that should be strongly discouraged, well before the filing of false affidavits gets to be treated as a routine and normal affair." But in the case appellant knowingly filed false affidavit regarding completion of work which was not completed.
Allahabad High Court also in the case of [PRECEDENT] (supra) held that making false verification to written statement of defendant, with knowledge of its falsehood is offence within meaning of [SECTION].
But In the case of [PRECEDENT] , the apex court has held that indiscriminate prosecutions under [SECTION] of [ACT] resulting in failure are likely to defeat the very object of such prosecution. It has been laid down that 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 reasonable probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish 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 case of [PRECEDENT]. the apex Court observed. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the false statement. Day in and day out in courts averments made by one set of witnesses are accepted and the counter averments are rejected. If in all such cases complaints under [SECTION] of [ACT] are to be filed not only there will open up floodgates of litigation but it would unquestionably be an abuse of the process of the Court.
In the case of [PRECEDENT] the Apex Court has also held that it is incumbent that the power given by [SECTION] of the Code should be used with utmost care and after due consideration. Such a prosecution for perjury should be taken only if it is expedient in the interest of justice.
In the case of [PRECEDENT], the Supreme Court in para-23 of the judgement observed as under:-
In view of the language used in [SECTION] [ACT] the court is not bound to make a complaint regarding commission of an offence referred to in [SECTION], 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.
From the aforesaid observations of the Supreme Court in various decisions,it emerged that every incorrect or false statement does not make it incumbent upon the Court to order prosecution, but requires the Court to exercise judicial discretion to order prosecution only in the larger interest of the administration of the justice. Prosecution for perjury can be directed in the larger interest of the administration of justice only in case of deliberate falsehood.
If we consider the facts of the reply filed by the respondent along with the explanation of respondent which are alleged to be false, in the light of above pronouncement of the apex court it does not appear that respondent has deliberately and knowingly mentioned such false fact in his reply or that fact is such a nature that in the larger interest of the administration of the justice prosecution for perjury should be directed. No prima facie case of deliberate falsehood appears. In the considered opinion of this court, it would not be expedient in the interest of justice to invoke the provisions of [SECTION] of [ACT] for this purpose.
Hence application is rejected Matter be listed for admission after two weeks.
([ENTITY]) Judge as/