... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.263 OF 2003 1. Shri Avinash Vishnu Vaze, major in age, r/o St. Inez, Panaji, Goa. (since deceased) 1.a) Shri Nikhil A. Vaze, r/o St. Inez, Panaji, Goa. 2. Ashok Vishnu Vaze, major in age, Doctor, r/o Honda, Sattari, Goa. 3. Uday Vishnu Vaze, major in age, agriculturist, r/o Dhave, Sattari, Goa. 4. Smt. Yogini Avinash Vaze, of major age. r/o near Gomantak, St. Inez, Panaji, Goa. 5. Smt. Ashwini Ashok Vaze, of major age, r/o Narayannagar, Honda, Sattari, Goa. 6. Smt. Manda Uday Vaze, of major age, r/o Dhavem, (Nagargaum), Sattari, Goa. 7. Smt. Anagha Vijay Majumdar, of major age, 8. Shri Vijay Gopal Majumdar, of major age, ... 2 ... Both residents of Gurukrupa, Ashoknagar, Pune-7. ... Petitioners v e r s u s Padmanabh Vithal Borker, major in age, r/o Dhavem, Sattari, Goa, through its constituted Power of Attorney, Shri Vivek Padmanabh Borker, r/o Dhavem, Sattari, Goa. ... Respondent Mr. M. S. Sonak, Advocate with Mr. D. J. Pangam, Advocate for the petitioners. Mr. R. V. Kamat, Advocate for the respondent. CORAM: R. M. SAVANT, J. DATED: 9th November, 2009. ORAL JUDGMENT: By this petition filed under Article 226 and 227 of the Constitution of India, the petitioners take exception to the order dated 06.03.2003, by which order the application at Exh.38 filed by the petitioners inter alia for proceeding against the respondent who is the original plaintiff for producing the alleged fabricated/forged copy of the agreement dated ... 3 ... 29.12.1970, came to be rejected by the learned Civil Judge, Junior Division, Sattari at Valpoi. 2. Such of the facts which are necessary to be cited for adjudication of the issue are stated thus: The respondent herein who is the original plaintiff who has filed Regular Civil Suit No.3/2001 in the Court of the Civil Judge, Junior Division, Sattari at Valpoi for a declaration that the judgment and decree dated 01.10.1984 in Special Civil Suit No.54/1976 be declared as null and void. The respondent also sought permanent injunction restraining the petitioners from interfering with the suit property or collecting any produce therefrom. The respondent has also sought for a decree of recovery of roof material given in possession of late Vishnu Vaze by panchanama dated 07.02.1986 by the bailiff of the Court or in the alternate, for an amount of Rs.20,000/- being the cost thereof. It is also prayed that a decree for resurvey of Survey no.8/4 by entering the correct area of 10,320 sq.mtrs. The respondent has also sought for stay of ... 4 ... Execution application No.8/1985, 9/1985 and 10/1985 pending before the Civil Judge Junior Division at Sattari. 3. The petitioners herein filed their written statement dated 23.08.1989. Thereafter, the parties proceeded for trial. The witness on behalf of the plaintiffs, Pw.1 produced xerox copy of the purported agreement dated 29.12.1970 which came to be marked as Pw.1/A. The production of the said document was objected to by the petitioners on the ground that it was inadmissible as a ordinary xerox copy was produced. 4. The petitioners realised that the copy of the agreement produced by the respondent does not tally with the original carbon copy of the agreement dated 29.10.1970 which was produced in Special Civil Suit No.54/1976. The said copy of the original carbon copy of the agreement is on the records of the said Special Civil Suit No.54/1976 where cashew trees are shown as “10” whereas in the xerox copy produced at Exh.Pw.1/A the number of cashew trees are ... 5 ... shown as “100”. Therefore on comparison of the two copies, it was clear that in Exh.Pw.1/A, the figure “10” has been changed to “100” by pen. Since the respondent wanted to rely upon the said document in support of his case in the said suit. The petitioners filed an application dated 06.05.2000 invoking Section 151 of the Civil Procedure Code. The petitioners also prayed for initiating criminal proceedings against the respondent. It would be relevant to quote paragraph 7 of the application: “The plaintiff is liable for commission of forgery and fabrication of document. The matter is sub-judice and for ends of justice, it is necessary to prevent the abuse of the process of the Court. Therefore, the defendants pray that this Hon'ble Court be pleased to take suitable action against the plaintiff. It is further prayed that the document vide Exhibit – Pw.1/A produced by the plaintiff in the above suit be removed from the record of the above suit. The defendants also further pray ... 6 ... for suitable order to initiate criminal proceedings against the plaintiff.” 5. The respondent herein filed his reply. The respondent inter alia contended in the said reply that the said document finds a mention in the list of documents filed alongwith the suit. The said document is at Sr. No.2 in the said list and no objection was taken by the late father of the petitioners herein at that time. It is further averred in the said reply that since the allegation is one of forgery and forgery being a criminal act, a special law is provided for criminal act and application filed by the petitioners was therefore liable to be dismissed. 6. The said application was considered by the Trial Court and by the impugned order has rejected the same. The said application has been mainly rejected on two fold grounds namely that although it is evident that change is made in the figure by the plaintiff, there is no case made out by the petitioners as regards the forgery being made by the respondent, which was required to be brought on record in ... 7 ... the form of evidence if it is the case of the defendant that fraud or forgery has been committed by the plaintiff. The second ground is that the relief sought by the petitioners could not have been granted under Section 151 of the Civil Procedure Code as there are specific provisions for initiating proceedings under Criminal Procedure Code for forgery. The Trial Court after citing the said two grounds has gone on to observe that the weightage given to the document can be decided at the final stage and the said document therefore, cannot be removed at this stage. Reluctantly as indicated above, the said application came to be rejected. 7. I have heard Shri Sonak, learned counsel for the petitioners and Shri Kamat, learned counsel for the respondent. 8. The principle contention of learned counsel Shri Sonak was that the Trial Court has failed to exercise jurisdiction vested in it whilst deciding the application filed by the petitioners. The learned counsel submitted that though ... 8 ... the application filed was by invoking Section 151 of the Civil Procedure Code, at the same time, it has been mentioned in the application that criminal proceedings be initiated against the respondent though specific provisions either under Criminal Procedure Code or Indian Penal Code was mentioned by the petitioners. Learned counsel relying upon Section 340 of the Criminal Procedure Code submitted that when issues or allegations of the nature as made in the instant case are brought before the Court, then the Court cannot shirk its responsibility and would have to proceed in accord with the said provisions which postulate that before any complaint is filed a preliminary inquiry is required to be conducted. The learned counsel relying upon Section 195 submitted that in the event, the Court comes to a conclusion that there was substance in the allegations, a complaint could be filed by the Court as the document in question has been filed in a suit. Learned counsel further submitted that to maintain the purity of the public justice system, it was absolutely necessary that inquiry ought to have been conducted by the Trial Court and by merely observing that such a relief could not be granted ... 9 ... under Section 151 of the Code, the Trial Court could not have rejected the application. Learned counsel relied upon the judgment of the Apex Court reported in Suo Motu Proceedings against K. Karuppan, Advocate {(2001) 5 Supreme Court Cases 289}, paragraphs 13, 14, 15 and 16 of the said judgment are relevant. And are reproduced hereunder: 13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determination the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to ... 10 ... the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspected by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy. 14. At common law courts took action against a person who was shown to have made a statement, material in the proceedings, which he knew to be false or did not believe to be true. The offence committed by him is known as perjury. Dealing with history of the offence, Stanford H. Kadish in Encyclopedia of Crime and Justice (Vol.3) observed: “History of the offense Before witnesses had any formal role in trials, there was no need for a perjury law. In the Middle Ages, when the English ... 11 ... common law was developing, trial by battle was used to test a sworn accusation. Similarly, for the sworn denial of a serious charge based on mere suspicion, an ordeal administered by a priest was the predominant mode of trial until it was abolished in1215 as superstitious. Finally, at least until the Assize of Clarendon (1166), less serious accusations could be successfully answered by 'compurgation', that is, by obtaining a sufficient number of 'oath helpers' to support the defendant's credibility. Trials in the modern sense began to develop only in the thirteenth century. Little is reliably known about the conduct of jury trials prior to the sixteenth century, but in civil cases, it seems that genuine witnesses were permitted to give their accounts, although they could not be compelled to appear. In early criminal cases, the jury seems always to have included some who, aware of the commission of a crime in their community, brought the suspect before a Judge. Those witness witnesses who did attend these early trials were perceived as ... 12 ... part of the jury and retired with them to deliberate, often to make their disclosures in secret. It was the verdict, not the testimony, that was perceived as either true or false; the only remedy for falsehood remotely akin to a perjury prosecution was a seldom-invoked procedure called 'the of attaint', created in 1202 and not abolished formally until 1825. Through attaint, the jury would be punished for a 'false' verdict and the verdict itself overturned. Witnesses first testified under oath in criminal cases on behalf of the Crown in the sixteenth century. No witnesses for the defense were permitted until the mid- seventeenth century, since they would have been witnesses against the Crown, and not until 1702 were defense witnesses permitted to be sworn [1 Anne, St.2, c. 9, s.3 (1701) (England) (repealed)]. By the late seventeenth century the jury had lost all its testimonial functions, and witnesses thus became the sole means of bringing facts to the Judge's and jury's attention. ... 13 ... Since the early common law had no established mechanism for dealing with false swearing by witnesses, the Court of State Chamber assumed for itself the power to punish perjury. This authority was confirmed by statute in 1487 [State Chamber Act, 3 Hen. 5, c. 1 (1487) (England) (repealed)]. The first detailed statute against false swearing was enacted in 1562 [5 Eliz. 1, c.9 (1562) (England) (repealed)]. When the Star Chamber was abolished in 1640, its judicially defined offense of perjury passed into English common law, reaching any cases of false testimony not covered by the terms of the statute. Edward Coke, whose views strongly influenced early American law, wrote in his Third Institute , published in 1641, that perjury was committed when, after a 'lawful oath' was administered in a 'judicial proceeding,' a person swore 'absolutely and falsely' concerning a point 'material' to the issue in question (*164). In this form, the law remained unchanged into the twentieth century.” ... 14 ... 15. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the courts despite taking oath make false statements to suit the interest of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let loose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take an evasive recourse despite proof of commission of the offence under Chapter XI of the Indian Penal Code. ... 15 ... If the system is to survive, effective action is the need of the time. The present case is no exception to the general practice being followed by many of the litigants in the country. 16. Keeping in view the facts and circumstances of this case, the record of proceedings in So Motu Contempt Petition (criminal) No.5 of 2000 and Writ Petition No.77 of 2001, we are prima facie satisfied that the respondent herein, in his affidavit filed in support of the writ petition (for the purposes of being used in the judicial proceedings i.e. writ petition), has wrongly made a statement that the age of Dr. Justice A. S. Anand has not been determined by the President of India in terms of Article 217 of the Constitution. We are satisfied that such a statement supported by an affidavit of the respondent was known to him to be false, which he believed to be false and/or at least did not believe to be true. It is not disputed that an affidavit is evidence within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable under ... 16 ... Section 193 IPC. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition is prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under Section 191 IPC, punishable under Section 193 IPC. 9. Learned counsel also relied upon two other judgments of the Apex Court in Swaran Singh v. State of Punjab {(2000) 5 Supreme Court Cases 668 and 679} and Mahila Vinod Kumari v. State of Madhya Pradesh {(2008)8 Supreme Court Cases 34} The said judgments concern as to what should be the approach of the Court wherein allegations of forgery and fabrication of documents are made. Learned counsel also relied upon Tulsiram v. Tilokchand alias Dayaram (1923 Nagpur 258) wherein it has been held that in matters where the evidence by way of documents which are allegedly forged, the Court shirking its duty does not hold an inquiry on its own motion, an application for sanction under Section 195 is in most cases a ... 17 ... reminder to the Court of a very important duty that it has omitted to perform and ought to be so treated. The judgment further goes on to hold that the Court must itself be astute to discover any evidence that may bear on the matter either way, and use its best endeavors to ensure that the person who appears to have committed an offence against itself does not escape punishment if he is guilty and is not unduly harassed if he is innocent. Learned counsel Shri Sonak also relied on the judgment in Purna Chandra Dutta and ors. v. Sheikh Dhalu {AIR 1930 Calcutta 721 (2)} in support of his submission that in a given case, the Court must not shirk to proceed to file a complaint under section 476 as was then prevailing. 10. Per contra, Shri Kamat, learned counsel on behalf of the respondent submitted that assuming that the application filed by the petitioners herein was filed under Section 340 of the Criminal Procedure Code, the petitioners have remedy by way of an appeal under Section 341 as the Court has refused to file a complaint. The learned counsel ... 18 ... further submitted that the present petitioner no.1 i.e. the applicant before the Trial Court, who is now no more was an Advocate and therefore no indulgence can be shown to him, if he has filed an application invoking Section 151 of the Civil Procedure Code. Learned counsel for the respondent further submitted that there is absolutely no material on record to connect the respondent to the said correction made in the document wherein the figure 10 has been substituted by the figure 100. The learned counsel further submitted that in view of the remedy by way of appeal, this Court should not entertain this petition and exercise its writ jurisdiction. 11. I have heard the learned counsel for the parties and bestowed my anxious consideration to the submissions made by them. At the outset, it would be relevant to note that though the application was filed invoking Section 151 of the Code, at the same time, the applicant had prayed for the respondent being criminally prosecuted with. Times out of number, it is seen that Section 151 of the Code is considered to be an omnibus provision and therefore, applications are ... 19 ... filed invoking the said provision. However, the fact remains that the substance of the matter before the Trial Court as contained in the said application was as regards the application for fabrication/forgery made therein. In the context of the suit which has been filed for setting aside the exparte decree in Special Civil Suit No.54/1976, the same matter assumes serious proportions and therefore, the said issue should have been dealt with more circumspectly. The Trial Court by merely setting out the said two grounds, namely that there was no evidence produced by the petitioners herein in support of their case, that the forgery/fabrication has been carried out by the respondent and secondly on the ground that the application was one under Section 151 of the Code wherein such relief could not be granted has erred in rejecting the said application. 12. As held by the Supreme Court in the judgments which have been cited by Shri Sonak, the issue which was raised by the petitioners in the said applications was one, which goes to the root of the justice dispensation system and ... 20 ... therefore, it was the bounden duty of the Trial Court to at least embark upon a preliminary inquiry to go to the root of the matter as regards the alleged fraud/fabrication as the same would have a bearing on the decision that would have to be rendered in the instant suit as also the decree and the order passed in Special Civil Suit No.54/1976. In my view, the Trial Court has shirked from its duty and has by merely citing the said two ground rejected the said application. A preliminary inquiry if conducted by the Trial Court would have given it the necessary material as to whether to proceed with under Section 195 of the Criminal Procedure Code, and if it was satisfied, appropriate action could have been taken under the said provisions. 13. In so far as the submission of Shri Kamat that the petitioners herein have remedy by way of an appeal under Section 341, in my view, the said submission of Shri Kamat, cannot be accepted for two fold reasons, firstly the Trial Court as indicated has not conducted any preliminary inquiry as postulated in Section 340 of the Code of Criminal ... 21 ... Procedure and therefore, in the absence of such an order, the petitioners cannot be relegated to the said remedy. Apart from the said fact, the above petition challenging the said order has been filed in the year 2003 and has been pending since then and a stay is also operating as regards the said suit. Considering the said time lag, assuming that it is an order passed under Section 340, the petitioners cannot now be relegated to the statutory remedy. A useful reference could be made to the judgment of the Apex Court reported in {(2004) 13 Supreme Court Cases 665} in the matter of Durga Enterprises (P) Ltd. and anr. v. Principal Secretary, Govt. of U.P. and ors. In the said case it has been held that the High Court having entertained the Writ petition, in which pleadings were also complete ought to have decided the case on merits instead of relegating the parties to a Civil suit. 14. Reference could also be made to a Division Bench judgment of this Court in Andhra Pradesh Paper Mills Ltd. v. State of Maharashtra {2005 (4) Bom. C.R. 274}, ... 22 ... wherein a similar objection was raised which has been answered in paragraph 16 of the said judgment, which is reproduced herein under: “Having considered the rival submissions, made on behalf of the parties, we are not inclined to accept the submission of learned counsel for the respondent, regarding tenability of the petition on the ground of alternate remedy. The petition has been filed way back in the year 1999 (sic 1991) and also admitted in the same year. The petitioner having waited in the corridors of justice for the more than 15 long years, cannot be non-suited on the technical ground. We therefore, reject the contention of the respondents that the present petition is not tenable on the ground of availability of alternate remedy and non-exhaustion of the same.” The submission of Shri Kamat that the petitioners be relegated to the alternate remedy therefore, cannot be accepted. ... 23 ... 15. For the aforesaid reasons, the Writ petition is required to be allowed and is accordingly allowed in terms of prayer clause (a). Resultantly, the impugned order is set aside and the Trial Court is directed to conduct a preliminary inquiry as contemplated under Section 340 (1). The interim order operating in this petition staying the proceedings in the said suit stands vacated. The issue whether after the preliminary inquiry under Section 340, in the event a complaint is filed, whether the same can be proceeded with during the pendency of the said suit is explicitly kept open. The parties would be entitled to make their submissions, in the event the Trial Court takes a decision one way or the other. 16. Rule is according made absolute in the aforesaid terms. Parties to bear their own costs. R. M. SAVANT, J. lh/. ... 24 ...