Perjury for knowingly filing false affidavit - Supreme Court Vs Advocate

                                                             Supreme Court of India 
             
CASE NO.:
Writ Petition (civil)  77 of 2001

PETITIONER:
SUO MOTO PROCEEDINGS AGAINST MR. R, KARUPPAN, ADVOCATE

Vs

RESPONDENT:
RE: SUO MOTO PROCEEDINGS AGAINST MR. R, KARUPPAN, ADVOCATE

DATE OF JUDGMENT: 12/05/2001

BENCH:
K.T. THOMAS & R.P. SETHI & B.N, AGRAWAL

JUDGMENT:
JUDGMENT

2001 (3) SCR 750

The Judgment of the Court was delivered by
1. Proclaiming to be its President, the respondent Sh.R. Karuppan filed a Writ Petition in the name of Madras High Court Advocates Association praying for issuance of writ of Quo Warranto against the Hon'ble Chief Justice of India. He also prayed this Court to determine the age of the first respondent in the writ petition as 1.11.1934 and further that the first respondent had attained the age of superannuation on 31st October, 1999 and had ceased to hold the office since then. In support of the averments made in the writ petition Shri R. Karuppan (hereinafter referred to as "the respondent") also filed an affidavit.

2. Before the matter was taken up for admission, the Registry of this Court received a petition signed by a number of advocates claiming to be the members of the said Association and alleging that the Association had not authorised the respondent to file any writ petition in the name of the Association. Ignoring the disputes stated to be existing amongst the members of the Advocates Association, we proceeded to consider the writ petition on the assumption that the petition was either filed on behalf of the Association or by the respondent on his own in his individual capacity as well, particularly when the prayer made was for the issuance of a writ of quo warranto. In the said petition, the respondent has raised the question of the alleged disputed age of the Hon'ble Chief Justice of India.

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

4. Notice was issued to the respondent requiring him to show cause why prosecution proceedings shall not be initiated against him for offence under Section 193 of the Indian Penal Code.

5. During the pendency of these proceedings 600 and odd persons, claiming to be the members of the Advocates Association submitted in writing that the Association had not passed any Resolution regarding the age of the CJI and that Mr. Karuppan was not authorised to file any case representing the Association. As the notice was issued against the respondent in his individual capacity, we granted him time to file reply to the notice, if he so desired. In reply, the respondent has reiterated the submissions made earlier in the writ petition filed by him. It is submitted that he believed bonafide that the President of India had not determined the age of the Chief Justice of India and even if any determination has been made under Article 217 of the Constitution, the same is not conclusive for all times. It is contended that the respondent came to know of the Press Information Bureau release, informing that the age of the Chief Justice of India stood determined by the present of India as early as on 16.5.1991 only in December, 2000. The respondent has submitted that he is not guilty of offence of perjury.

6. We have heard the respondent who has appeared in person and examined the whole record.

7. Proved or admitted facts of the case are that one S.K. Sundaram, Advocate sent a telegraphic communication to Dr. Justice A.S. Anand, the Hon'ble Chief Justice of India on 3.11.2000 which read as under:
"I call upon Shriman Dr. A.S. anand Hon'ble Chief Justice of India to step down from the Constitutional Office of Chief Justice of India forthwith, failing which I will be constrained to move the criminal court for offences under Sections 429, 406, 471 Indian Penal Code for falsification of your age, without prejudice to the right to file a writ of quo-warranto against you and for a direction to deposit a sum of Rs.3 crores for usurping to the office of Chief Justice of India even after attaining the age of superannuation."

8. The said S.K. Sundaram also filed a criminal complaint before the Chief Judicial Magistrate, Chennai against the CJI. On a note put up by the Registrar General regarding the said telegraphic communication, this Court vide order dated 7.11.2000 found that prima facie the said S.K. Sundaram was guilty of contempt of court. A notice was issued to him in reply to which he filed his objections. He was represented by the respondent herein. During the pendency of the contempt proceedings this Court was informed that the President of India, in consultation with the Chief Justice of India, decided the question relating to the age of Dr. Justice A.S. Anand as early as on 16.5.1991 holding that the date of birth of Dr. Anand was 1.11.1936. The Court was further informed that for arriving at the conclusion of Dr. Justice Anand's age being 1.11.1936, the President has considered the following documents:
"(1) The certificate of matriculate examination dated 1.9.1951 issued by the University of J & K in respect of Adarsh Sein Anand (the present CJI) which showed explicitly that his date of birth was 1.11.1936. (2) The passport issued to Adarsh Sein Anand (the present CJI) on 3.8.1960, also explicitly showed that his date of birth was 1.11.1936. (3) The report prepared by the then CJI in respect of the age of Dr. Justice A.S. Anand, who was then a Judge of the High Court."

9. The President's Secretariat issued an order way back on 16.5.1991 which read as under:
"The petition from Shri S.K. Sundaram, advocate, Madras, to the President on behalf of his client Shrimati Kasturi Radhakrishnana, Chairperson, Madras Citizens Progressive Council, Madras and the records have been perused and the matter considered by the President, in consultation with the Chief Justice of India. The President has come the conclusion that the petitions of Shri S.K. Sundaram, Advocate, Madras, in respect of the age of Dr. Justice A.S. Anand of the Madras High Court, be rejected and that no inquiry as stipulated under Article 217(3) of the Constitution need be undertaken."

10. While disposing of the contempt petition this Court held:
"We have absolutely no doubt that when the President of India resolved the question of age of Dr. Justice A.S. Anand in 1991 when he was the Judge of the High Court, that too pursuant to the contemnor himself raking up the question then, the should have, as a dutiful citizen of India, realised that the said decision attained finality so far as the question of the age of Dr. Justice A.S. Anand is concerned. Such decision was based on very weighty and formidable materials available to the President of India then."

11. The Court found that the contemnor was guilty of gross criminal contempt of court and accordingly convicted him. He was sentence to undergo imprisonment for six months, the operation of which was suspended for a period of one month which was later extended upon furnishing of an undertaking by the contemnor. All along during the contempt proceedings, the respondent herein was present in the Court and fully knew that the age of Dr. Justice A.S. Anand had been determined by the President of India on 16.5.1991 in exercise of his powers under Article 217 of the Constitution.

12. Despite the knowledge of the determination of the age of Dr. Justice A.S. anand by the President of India and the finding of this Court, the respondent herein and the finding of this Court, the respondent herein filed the present writ petition accompanied by his personal affidavit wherein he stated:
"The petitioner submits that after the passing of the above said resolution, it came to its notice that on October 23, 2000 the Government of India had released a press note to the Press Information Bureau. Therein it had been stated that on 16.5.1991 the President had determined the age of the 1st respondent and that Sundaram's attempt to reopen the said issue in 1991 was rejected. Significantly this press report was not published in the dailies in Tamil Nadu. This renders the statement dubious and no credence could be attached to this communication."

13. He further submitted:
"The petitioner submits that the dispute which had arisen as early as in 1991, undetermined by the President and the operation of Article 217 is still operative and within the jurisdiction of the President."

14. The respondent submitted before us that the averments made by him in his writ petition were correct and that he was not guilty of perjury. Alternatively he submitted that he had no knowledge of the passing of the order by the President of India in 1991, prior to 2nd December, 2000.

15. Court are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining 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 the false evidence particularly in cases, the adjudication of which is depended upon the statement of facts. if the result of the proceedings are to be respected, these issues before the courts must be resolved to 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 inspired 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.

16. 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 the history of the offence, Stanford H. Kadish in "Encyclopedia of Crime and Justice" (Vol. 3) observed:
"History of the offence
Before witnesses had any formal role in trials, there was no need for a perjury law. In the Middle Ages, when the English 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 in 1215 as superstitious. Finally, at least until the Assize of Clarendon (1166), less serious accusations could be successfully answered by "compurgation", that is, by obtained 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 witnesses who did attend 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 writ of attaint," created in 1202 and not abolished formally until 1825. Though attaint, the jury would be punished for a 'false' verdict and the verdict itself overturned.
Witness 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.
Since the early common law had no established mechanism for dealing with false swearing by witnesses, the Court of Start Chamber assumed for itself the power to punish perjury. This authority was confirmed by statute in 1487 (Star 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' concerned a point 'material' to the issue in question (*164). In this form, the law remained unchanged into the twentieth century."

17. 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 interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let lose 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 the commission of the offence under Chapter XI of the Indian Penal Code. If the system is to service, 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.

18. Keeping in view the facts and circumstances of this case, the record of proceedings in Suo 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 affricative of the respondent was known to him to be false which he believed to be false and/or atleast 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 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.

19. With the object of eradicating the evil of perjury, we empower the Registrar General of this Court to depute an officer of the rank of Deputy Registrar or above of the Court to file a complaint u/s 193 of the IPC against the respondent herein, before a Magistrate of competent jurisdiction at Delhi. Such officer is directed to file such complaint and take all steps necessary for prosecuting the complaint.

Perjury for filing false case - Mahila Vinod Kumari Vs State of Madhya Pradesh

                                        IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION
                               SPECIAL LEAVE PETITION (CRL.) NOS. OF 2008
                          (CRIMINAL MISC. PETITION NOS.8515-8516 OF 2008)


Mahila Vinod Kumari …..Petitioner

Versus

State of Madhya Pradesh …..Respondent

JUDGMENT :Dr. ARIJIT PASAYAT, J.


1. Heard learned counsel for the petitioner.

2. Delay condoned.

3. Though, we are not inclined to entertain the special leave petitions, but we find that there is a need for
expressing views on action to be taken for maliciously setting law into motion.

4. The petitioner lodged a report against two persons at Pichhore Police Station to the effect that on 28.1.1993 between 6.00 to 7.00 a.m. she was waylaid by them who dragged her and committed rape on her, one after another.
She claimed to have narrated the incident to her father and uncle and, thereafter lodged the report at the police station.
On the basis of the report, matter was investigated. The accused persons were arrested. Charge-sheet was filed. The accused persons faced trial for alleged commission of offence punishable under Section 376(2)(g) of the Indian Penal Code,1860 (in short `the IPC’). The accused persons abjured their guilt. During trial, the petitioner stated that she had actually not been raped. As she resiled from the statement made during investigation, she was permitted to be cross-examined by the prosecution. She even denied to have lodged the first information report (Exh.P-1) and to have given any statement to the police (Exh.P-2). In view of the statement of the petitioner, the two accused persons were acquitted by judgment dated 28.11.2001. The Trial Court found that the petitioner had tendered false evidence and had fabricated evidence against the accused persons with the intention that such evidence shall be used in the proceedings, and, therefore, directed cognizance in terms of Section 344 of the Code of Criminal Procedure, 1973 (in short `the Code’) to be taken against the petitioner. A show-cause notice was issued and the case was registered against the petitioner who filed reply to the effect that being an illiterate lady, she had committed the mistake and may be excused. The Trial Court found that the petitioner admitted her guilt that she had lodged false report of rape against the accused. She was, accordingly, sentenced to undergo three months’ simple imprisonment. Aggrieved by the order, the petitioner filed an appeal before the Madhya Pradesh High Court, which, by the impugned order, was dismissed.

5. Stand before the High Court was that being an illiterate lady, she does not understand law and the particulars of the offence were not explained to her and, therefore, the appeal should be allowed. This was opposed by the State on the ground that the petitioner had admitted her guilt before the Trial Court and, therefore, the conviction is well founded. The High Court perused the records of the Trial Court and found that in the show-cause reply she had admitted that she had told lies all through. The stand that the particulars of the offence were not explained to her, was found to be equally untenable, because in the show-cause notice issued, relevant details were given. In the first information report, and the statement recorded by the police, she had clearly stated that she was raped by the accused persons. But in Court she denied to have stated so. Learned counsel for the petitioner submitted that the Court imposed 15 days’ simple imprisonment which is harsh. But that is not the end of the matter. The petitioner filed an application before the High Court stating that a wrong statement was made before the High Court that she had already suffered custody for 15 days, which weighed with the High Court to reduce the sentence.

6. Learned counsel for the petitioner stated that being a girl of tender age, she was pressurized by her mother and uncle to give a false report. This is at variance with the statement made in court during trial to the effect that she had not reported anything to the police. It is a settled position in law that so far as sexual offences are concerned, sanctity is attached to the statement of a victim. This Court, has, in several cases, held that the evidence of the prosecution alone is sufficient for the purpose of conviction if it is found to be reliable, cogent and credible. In the present case, on the basis of the allegations made by the petitioner, two persons were arrested and had to face trial and suffered the ignominy of being involved in a serious offence like rape. Their acquittal, may, to a certain extent, have washed away the stigma, but that is not enough. The purpose of enacting Section 344,Cr.P.C. corresponding to Section 479-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as `the Old Code’) appears to be further arm the Court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to the courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they are failed to take action under Section 344 Cr.P.C.

7. This section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section 479 A which did not have the desired effect to eradicate the evils of perjury. The salient features of this new provision are:
(1) Special powers have been conferred on two specified Courts, namely Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of filing a complaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Ch. 21.
(2) This power is to be exercised after having the matter considered by the Court only at the time of delivery of the judgment or final order.
(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.
(4) The maximum sentence that may be imposed is 3 month’s imprisonment or a fine up to Rs.500 or both.
(5) The order of the Court is appealable (vide S. 351).
(6) The procedure in this section is an alternative to one under Sections 340-343. The Court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the Court is of opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons considered to be such that the case should be disposed of under the ordinary procedure which would be more appropriate, the Court may chose to do so [vide sub-section (3)].
(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)].

8. For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions arc mandatory. [See Narayanswamy v. State of Maharashtra,(1971) 2 SCC 182].

9. The object of the provision is to deal with the evil perjury in a summary way.

10. The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done.

11. In the case at hand, the court has rightly taken action and we find nothing infirm in the order of the Trial Court and the High Court to warrant interference. The special leave petitions are, accordingly dismissed.

Court records forgery - J.L. Goel and Ors. Vs Rajesh Kumar Jain & Anr.

                                          IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                              Crl.MC No. 471/2009 


J.L. Goel & Ors. …Petitioners

Versus

Rajesh Kumar Jain & Anr. …Respondents


Date of Reserve: August 13, 2010
Date of Order: August 30th 2010



Counsels:
Mr. M.A. Khan and Mr. Mir Akhtar Hussain for petitioner.
Mr. O.P. Saxena, Additional Public Prosecutor for  Respondents

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 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 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 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 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 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 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 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 U/s 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

Perjury for making false statement - BABUBHAI MERVANBHAI PATEL Vs STATE OF GUJARAT THROUGH SECRETARY

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  – 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]
*dipti
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