Punjab-Haryana High Court
Jitender Kumar vs State Of Punjab And Another on 15 February, 2021
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
129
CRM-M-6790-2021
Date of decision : 15.02.2021
Jitender Kumar .....Petitioner
Versus
State of Punjab and another .....Respondent
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Ram Kumar Saini, Advocate for the petitioner.
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ARUN KUMAR TYAGI, J. (ORAL)
(The case has been taken up for hearing through video conferencing.)
1. The petitioner has filed the present petition under Section 340 read with Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for initiating proceedings against respondent No.2 for offences committed by respondent No.2 by misguiding, concealing and misrepresenting facts to this Court during the proceedings of Transfer Application No.444 of 2020.
2. Briefly stated the petition has been filed on the averments that marriage between the petitioner and respondent No.2, who were both divorcee, was solemnized on 10.03.2003. At the time of marriage respondent No.2 promised to take care of Anmol, minor daughter of the petitioner from his first marriage. One daughter named Mehak @ Rai and one son named Arnav were born out of the wedlock. Respondent No.2 maltreated the petitioner as mentioned in the petition and left the matrimonial home. The petitioner filed petition under Section 9 of the Hindu Marriage Act, 1955. Respondent No.2 filed Transfer Application 1 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -2- No.371 of 2009 for transfer of the said petition from Samrala to Kharar which was dismissed by this Court vide order dated 10.03.2010. Respondent No.2 filed petition under Section 125 of the Cr.P.C. and the petitioner is paying interim maintenance of Rs.4,000/- per month as awarded by the Court. Since respondent No.2 did not join company of the petitioner, the petitioner filed petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by decree of divorce. Respondent No.2 filed Transfer Application No.444 of 2020 for transfer of the said petition pending in the Court of Principal Judge, Family Court, Samrala, Ludhiana to the Family Court, Khanna, Ludhiana. The transfer application was dismissed by this Court vide order dated 25.11.2020. In the transfer application respondent No.2 made false claim, concealed facts and knowingly misguided the Court with mala fide intention to get a favourable order. In para No.8 of the transfer application, respondent No.2 had alleged that the petitioner did not return her Istridhan whereas as per Panchayati Settlement dated 02.09.2011 all the articles of Istridhan had been handed over to respondent No.2. In para No.10 of the petition respondent No.2 alleged that the she had been living on the mercy of her sister-in-law as her father and brother had already died. In order to gain sympathy, respondent No.2 wrongly stated in the transfer application that her brother had also died whereas the brother of respondent No.2 is still alive. Due to strained relationship, the petitioner was not in contact with family members of respondent No.2 and filed reply restricted to the averments made in the transfer application but the fact as to brother of respondent No.2 being alive came to the knowledge of the petitioner 2 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -3- when his sister Kanchan Bala saw the brother of respondent No.2 in some marriage function in December, 2020. Sister of the petitioner filed application before the Health and Family Welfare Department, Government of Punjab in order to know whether death of Deepak Nanda, brother of respondent No.2, was registered with the Department or not. In response to the said application, the Department after inspecting the record of local area Police Station/Municipal Council- Corporation/Block PHC-CHC, Sub Center, MC Kharar, Tehsil Kharar, District SAS Nagar for the year 2018 to 2020 replied that the record regarding death of Deepak Nanda was not traceable implying that no such person had died. The transfer application was duly supported by affidavit of respondent No.2. The act of respondent No.2 falls in the ambit of offences punishable under Sections 193 and 199 of the Indian Penal Code, 1860 (for short 'the IPC'). The petitioner has accordingly prayed for initiation of proceedings under Section 340 of the Cr.P.C. against respondent No.2.
3. I have hard arguments addressed by learned Counsel for the petitioner and have gone through the relevant record.
4. Learned Counsel for the petitioner has while reiterating the factual averments made in the petition submitted that respondent No.2 deliberately made false statement in the transfer application and the affidavit attached therewith regarding death of her brother with intent to gain sympathy of the Court and secure favourable order of transfer. Respondent No.2 deserves to be prosecuted and punished for the act of misrepresenting the facts to this Court and giving false evidence by way of affidavit in support of her transfer application. Therefore, 3 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -4- proceedings under Section 340 of the Cr.P.C. may be initiated against respondent No.2. In support of his arguments learned Counsel for the petitioner has placed reliance on the observations in A. Hiriyanna Gowda Vs. State of Karnataka : 1998 Cri.L.J. 4756 (Karnataka High Court); Rajendra Jaina Towers (P) Ltd. Vs. Delhi Development Authority : 33 (1987) DLT 216 (Delhi High Court); Swaran Singh Vs. State of Punjab : (2000) 5 SCC 668 (Supreme Court) and Pritish Vs. State of Maharashtra : (2002) 1 SCC 253 (Supreme Court).
5. On perusal of the material on record and consideration of the submissions made I am of the considered view that the petition is devoid of any merit and is liable to be dismissed.
6. The petitioner has filed the present petition under Section 340 of the Cr.P.C. for taking action against respondent No.2 for commission of offences punishable under Sections 193 and 199 of the IPC and the relevant provisions read as under:-
"191. Giving false evidence.--
Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
Section 193 : Punishment for false evidence.- Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either 4 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -5- description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1. A trial before a Court-martial is a judicial proceeding.
Explanation 2. An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
Section 199 : False statement made in declaration which is by law receivable as evidence.-
Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence."
7. It may be observed here that the offences punishable under Sections 193 and 199 of the IPC are shown in the schedule to the Cr.P.C. to be non-cognizable.
8. Section 195 (i)(b) of the Cr.P.C. bars the Court from taking cognizance of the offences punishable under Sections 193 to 196, 199, 200, 205 to 211 and 228 alleged to have been committed in or in relation to any proceedings in any Court except on complaint in writing of that Court or its authorised officer or higher Court to which such Court is sub-ordinate and the same reads as under:-
"195(i)(b) No Court shall take cognizance -
(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable 5 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -6- 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
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-
clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate"
9. Section 340 of the Cr.P.C., which prescribes the procedure as to how a complaint may be preferred under Section 195 of the Cr.P.C., reads as under:-
"340. Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
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(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.
(4) In this section, "Court" has the same meaning as in section 195."
10. So far as initiation of proceedings for giving false evidence is concerned the law is now well settled through a catena of the judgments of Hon'ble Supreme Court and may be summarized as under:-
(i) 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. (See Chajoo Ram v. Radhey Shyam and another, reported in AIR 1971 Supreme Court 1367).
(ii) If the court is to notice every falsehood that is sworn to by parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. Again, the edge of such weapon would become blunted by indiscriminate use. (See Thomman Vs. IInd Additional Sessions Judge, Ernakulam and others, 1994 Cri. L.J. 48).
(iii) Mere acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the false statement. (See Chandrapal Singh and others v. Maharaj Singh and another, reported in 1982(2) RCR(Rent) 425 : AIR 1982 Supreme Court 1238).
(iv) Every incorrect or false statement does not make it 7 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -8- incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. (See M.S. Ahlawat Vs. State of Haryana and others : 2000 (1) SCC 278).
(v) The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury. (See Thomman Vs. IInd Additional Sessions Judge, Ernakulam and others, 1994 Cri. L.J. 48).
(vi) 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 and 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. (See Chajoo Ram v. Radhey Shyam and another, reported in AIR 1971 Supreme Court 1367).
(vii) 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. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the Court should direct prosecution. (See Chajoo Ram v. Radhey Shyam and another, reported in AIR 1971 Supreme Court 1367 and Santokh Singh Vs. Izhar Hussain and another : AIR 1973 Supreme 8 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -9- Court 2190).
(viii) The power given by Section 340 of the Cr.P.C. 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. (See K.T.M.S. Mohd. and another Vs. Union of India : AIR 1992 Supreme Court 1831).
(ix) The Court must order prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. (See Santokh Singh Vs. Izhar Hussain and another : AIR 1973 Supreme Court 2190).
11. In the present case, respondent No.2 filed application No.444 of 2020 for transfer of divorce petition filed by the petitioner under Section 13 of the Hindu Marriage Act, 1955. The application was dismissed by this Court vide order dated 25.11.2020. The petitioner has claimed that in the transfer application respondent No.2 deliberately made false averments as to non return of istridhan articles and death of her brother with intent to gain sympathy of the Court and securing favourable order. The petitioner has accordingly filed the present petition for initiation of proceedings under Section 340 of the Cr.P.C. against respondent No.2 for commission of offences punishable under Section 193 and 199 of the IPC in or in relation to the Court proceedings. It may be observed here that in his reply to the transfer application the petitioner did not plead that the averment as to death of brother of respondent No.2 was false. Return of istridhan articles was a debatable question which was not required to be adjudicated upon in 9 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -10- the transfer proceedings. In his reply filed in the transfer proceedings the present petitioner did not dispute the correctness of averment as to death of brother of respondent No.2 made in the application. Although, the fact as to whether brother of respondent No.2 had died as pleaded by respondent No.2 in the transfer application or is still alive seems to warrant issuance of notice to respondent No.2 and also recording of evidence in this regard but such a course would be wholly unnecessary as even in the eventuality of brother of respondent No.2 being still alive, this Court cannot ignore the fact that the transfer application was based on the material circumstances of convenience of respondent No.2 and respondent No.2 having no independent source of income and the inaccuracy/falsehood in making of the averments in the transfer application and the affidavit filed in support thereof regarding death of brother of respondent No.2, which was a fact immaterial to the transfer proceedings, does not make out prima facie case of deliberate falsehood on the part of respondent No.2 on matter of substance. In view of the object for which and the context in which the transfer application was filed the averment as to death of brother of respondent No.2 did not in any manner substantially concern the material facts and merits of the case as to convenience of respondent No. 2 and her independent source of income and did not have tendency to impede and impair the normal flow of the course of justice and did not in fact influence or prompt, in exercise of its discretion, the Coordinate Bench of this Court, which dismissed the transfer application. In the facts and circumstances of the case, it is not expedient in the interest of justice to initiate any proceedings for filing of complaint for perjury against respondent No.2.
10 of 11 ::: Downloaded on - 23-08-2021 06:44:26 ::: CRM-M-6790-2021 -11- Since the transfer application filed by respondent No.2 was dismissed, prosecution of respondent No.2 for any averment made therein, which was not even disputed in reply filed in the course of the proceedings, would not be in the larger interest of the administration of justice. Respondent No.2 cannot be ordered to be prosecuted just to gratify feelings of personal revenge or vindictiveness or to serve the ends of the petitioner who is having matrimonial litigation with respondent No.2.
12. In view of the above discussion, the petition being devoid of any merit is hereby dismissed.
15.02.2021 (ARUN KUMAR TYAGI)
kothiyal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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