Central Administrative Tribunal - Delhi
Sanjeev Chaturvedi vs M/O Personnel,Public Grievances And ... on 30 July, 2021
1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
(THROUGH VIDEO CONFERENCING)
Misc.Applications No.100/463/2021&
100/1266/20121
&
Original Application No.100/95/2021
THE HON'BLE SMT. MANJULA DAS, JUDICIAL MEMBER
THE HON'BLE MR A K BISHNOI, ADMINISTRATIVE MEMBER
SanjivChaturvedi, IPS
R/o H.No.D-I
Forest Training Institute
Rampur Road, Haldwani
Nainital-263139.
... Applicant
- Versus -
1. Union of India through Cabinet Secretary,
RashtrapatiBhavan, New Delhi-110 001.
2. Secretary, Department of Personnel & Training
Government of India, North Block
New Delhi-110 001.
3. Secretary, Ministry of Environment Forest & Climate
Change, Indira ParyavaranBhawan
New Delhi-110 003.
MAs.463/2021 & 1266/2021
& OA/95/2021
2
4. Union of Public Service Commissioner
Through Secretary, Union Public Service
Commission, Dholpur House
Shahjahan Road, New Delhi.
5. State of Uttarakhand through
Chief Secretary
Government of Uttarakhand
Civil Secretariat, 04 SubhashMarg
Dehradun, Uttarakhand.
......Respondents.
For the petitioner: Applicant in person
For the Respondents: Sri HanuBhaskar, ld counsel for
respondents 1 to 3.
Date of hearing: 20.07.2021 Date of Order: .07.2021
ORDER
MANJULA DAS, MEMBER (J):
MA.496/2021 By this MAfiled under Rule 24 of CAT (Procedure) Rules, 1987 the petitioneris seeking following relief(s);-
MAs.463/2021 & 1266/2021 & OA/95/2021 3 ―a. To pass appropriate judicial orders, by invoking the ‗doctrine of necessity' remitting back the O.A. No.100/95/2021 to Nainital Circuit Bench, in view of Section 5 (2) & 22 (2) of Administrative Tribunal Act 1985, Rule 6 of CAT (Procedure) Rules 1987, and the law laid down by Hon'ble Supreme Court in CA No. 1342/2019 so as to enable the hearing of this long pending case before Nainital Circuit Bench, during 22.02.2021 - 26.02.2021. b. To impose exemplary costs on Respondent Union Government for filing a malicious transfer petition, thereby causing interference in the administration of Justice and unduly harassing the Applicant.
c. To pass any other order as deemed fit in view of facts and circumstances of the case..‖
2. The facts, in brief, are that Sri SanjivChaturvedi(hereinafter would be referred to as the petitioner) is an IPS Officer of 2002 batch of Uttarakhand cadre. While serving as Chief Conservator of Forest (Research) at Haldwani, he had MAs.463/2021 & 1266/2021 & OA/95/2021 4 filed OA.331/109/220 before the Nainital Circuit Bench under Allahabad Bench of this Tribunal challenging the empanelment process of Joint Secretary in the Govt. of India. The respondents no. 1 & 2 filed transfer petition no.PT/137/2020 before the Hon'ble Chairman praying for transfer of the OA to the Principal Bench. The Hon'ble Chairman vide order dated 04.12.2020 (Annexure-M2 of the MA) transferred the OA to the Principal Bench. In terms of the said order, the OA.331/109/2020 of the Nainital Circuit Bench has been registered as OA.100/95/2021 in the Principal Bench. Now, by this MA the petitioner is seeking a direction to remit back the OA.95/2021 to the Nainital Bench.
3. The petitioner had also challenged the aforesaid order dated 04.12.2020 before the Hon'ble MAs.463/2021 & 1266/2021 & OA/95/2021 5 High Court of Uttarakhand vide WPSB No.407/2020 wherein the Hon'ble Chairman was also impleaded as party respondent in person. The Hon'ble High Court vide order dated 16.12.2020 issued notices to the Govt. of India including the Hon'ble Chairman in person. Earlier on a similar proceeding, the Hon'ble High Court vide order dated 21.08.2018 passed in WPSB No.359/2018 filed by the present petitioner had set aside the order of the Hon'ble Chairman transferring the OA.331/790/2017 to the Principal Bench at New Delhi and requested the Nainital Circuit Bench of this Tribunal to decide the said OA within six months. The Civil Appeal No.1392/2019 challenging the aforesaid order of the Hon'ble High Court was dismissed by the Hon'ble Supreme Court vide judgment and order dated 01.02.2019.
MAs.463/2021 & 1266/2021 & OA/95/2021 6
4. In view of the above premises, when the OA.95/2021 was placed before the Division Bench presided over by the Hon'ble Chairman, the said court directed to post the matter before the court no.2, Accordingly, the matter was posted before the Division Bench of one of us [Hon'ble Mr. A K Bishnoi, Member (A)] and Hon'ble Mr R N Singh, Member(J) on 01.02.2021 and 17.02.2021. The petitioner contended before the said Bench that one Hon'ble Member of that Bench namely Hon'ble Mr R N Singh, Member(J) had earlier appeared against the petitioner before the Tribunal, therefore, he prayed for recusal of the Hon'ble Member (J) from the matter. Without going into the merits of the said contention of the petitioner, Hon'ble Mr R N Singh, Member (J) had recused himself from the order vide order dated 11.03.2021. Situated MAs.463/2021 & 1266/2021 & OA/95/2021 7 thus, the Hon'ble Chairman constituted this particular Bench for deciding the matter. That is how the present matter has come up before this Bench.
5. When this matter for the first time was taken up by this Bench on 22.03.2021 through video conferencing the petitioner appearing in person prayed for hearing and disposal of this MA. However, in the interest of justice, this court granted four weeks time to the respondents to file counter reply/objection, if any against the MA. On that date, Sri HanuBhaskar, learned counsel for the respondents no.1 to 3 submitted before this court that copy of the MA was not served upon him and therefore, this court directed the petitioner to supply a copy of the MA within seven days. The next date was fixed on 22.04.2021.
MAs.463/2021 & 1266/2021 & OA/95/2021 8
6. On 22.04.2021, petitioner in person submitted before this court that he was not keeping well and unable to argue the matter, and therefore, prayed for adjournment of the matter. On the other hand, learned counsel for the respondents no.1 to 3 submitted that this MA has since been disposed of vide order dated 17.02.2021, the matter had no legs to stand. Keeping in view the above, this court directed the Registry to place the copy of the order dated 17.02.2021 on record and also to supply a copy to the petitioner either through his email or whatsapp. Next date was fixed on 17.05.2021.
7. The matter could not be taken up on 17.05.2021 due to summer vacation in the CAT, Principal Bench.
MAs.463/2021 & 1266/2021 & OA/95/2021 9
8. Thereafter the matter was listed before this Bench on 04.06.2021. On the said date though learned counsel for the respondents was present, the petitioner was not present. He, however, sent an email to the Registry on the same day at 2.49 PM stating as under:-
―Respected Hon'ble Bench, because of being in hospital right now with my family member, I am not able to attend today's proceeding... Kindly adjourn the case for hearing to any date between 15.06.2021 to 25.06.2021. regards‖ Considering the said request, the matter was adjourned to be listed on 24.06.2021.
9. When the matter came up before this Bench on 24.06.2021 it was found that no counter/reply was filed by the respondents. This court opined that for coming to a logical conclusion, counter reply of the MAs.463/2021 & 1266/2021 & OA/95/2021 10 respondents was considered necessary and accordingly the learned counsel for the respondents was given three weeks' time to file the counter/reply as a last chance. The next date was fixed on 20.07.2021. In terms of the above order, the respondents no.1 & 2 had filed the reply in the MA on 07.07.2021.
10. On 20.07.2021, Sri SanjivChaturvedi, IPS, the petitioner in person, and Sri HanuBhaskar, learned counsel for the respondents no.1 to 3 argued at length. None appeared for the respondent no.4 (UPSC) and the respondent no.5 (State of Uttarakhand). Hearing was concluded and the matter was reserved for orders.
MAs.463/2021 & 1266/2021 & OA/95/2021 11
11. On 22.07.2021, the petitioner filed written argument.
12. As we have heard both the sides in respect of the MAs.463/2021 and 1266/2021, we will confine our deliberation to the said two MAs only.
13. During the course of hearing, the gist of the arguments advanced by the petitioner in person is as follows:-
(i) That vide order dated 04.12.2020 passed in PT.
no. 137/2020, the Hon'ble Chairman transferred the OA.331/109/2020 from the Nainital Circuit Court to be heard at the Principal Bench, New Delhi. The Judicial Member of this particular Bench is not from the Principal Bench. Therefore, this Bench is not competent to hear this matter. In support of his MAs.463/2021 & 1266/2021 & OA/95/2021 12 contention, the petitioner in person drew our attention to Section 5(2) of the Administrative Tribunals Act, 1985 (hereinafter would be referred to as AT Act, 1985).
(ii) Power to transfer a matter pending before any Bench for disposal to any other Bench is vested with the Hon'ble Chairman only under Section 25 of the AT Act, 1985. No other Member of Bench has the same power. Therefore, this Bench has no power to decide this MA praying for transfer of the OA to be Nainital Circuit Court. The Hon'ble Chairman who had earlier recused from the matter could not have dealt with the matter on administrative side to constitute this Bench.
(iii) That it is obvious that between individual officer and Govt. of India, balance of convenience MAs.463/2021 & 1266/2021 & OA/95/2021 13 regarding the place of hearing, lies in favour of the individual officer. That is why Rule 6 of the CAT (Procedure) Rules, 1987 gives liberty to the applicant to file application at his place of posting/any other place as per his choice and not to Union of India. Rule 6 of the CAT (Procedure) Rules, 1987 reads as under:-
―6. Place of filing applications. - (1) An application shall ordinarily be filed by an application with the Registrar of the Bench within whose jurisdiction. (i) the applicant is posted for the time being, or (ii) the cause of action, wholly or in part, has arisen...‖ Applicant was posted in the State of Uttarakhand which is in the jurisdiction of Nainital Circuit Court.
Accordingly, he filed OA.331/109/2020 in which UPSC and State of Uttarakhand had already filed their written statements. But almost after 8 months the matter was transferred to the Principal Bench upon considering the balance of convenience of the Govt.
MAs.463/2021 & 1266/2021 & OA/95/2021 14 of India. The Hon'ble Chairman had passed the order dated 04.12.2020 without allowing the petitioner to file reply to the PT and without allowing the learned counsel for the petitioner to make submissions. The action of the respondents unduly prolonged the proceedings.
(iv) One of the grounds for transferring the OA to the Principal Bench was that it is a policy matter which needed to be decided by the Principal Bench. There is absolutely no provision under the Acts & Rules that policy matters are to be heard by the Principal Bench itself. There is no distinction between the nature of service matters nor the competence of different Benches under Section 3(q) and 14 of the AT Act, 1985.
MAs.463/2021 & 1266/2021 & OA/95/2021 15
(v) Another ground for transferring the matter to the Principal Bench was that records are available at Delhi. If that is so, every case of the All India Officers has to be heard by the Principal Bench.
(vi) That the Hon'ble Supreme Court in CA No.1342/2019, upheld the categorical orders of the Hon'ble High Court of Uttarakhand dated 21.08.2018 passed in WPSB-359/2018, that the service matters of the present petitioner will be heard at Nainital Circuit Bench. In view of the above orders, any attempt of hearing of the instant service matter of the petitioner in any other Bench will be contempt of the above orders of the Constitutional Courts.
(vii) That there are dozens of counsel for the Govt. of India defending hundreds of cases filed by Central MAs.463/2021 & 1266/2021 & OA/95/2021 16 Govt/All India Service Officers at Nainital. Besides Nainital is also a part of Union of India as per Article 1 of the Constitution of India. The respondent no.1 failed to make out any single reason to demonstrate any inconvenience to be caused to the Central Govt/Union of India if the case is heard at Nainital Circuit Court.
14. On the other hand, learned counsel for the respondents no.1 to 3 submitted that relief(s) sought by the applicant in the MA is not maintainable as the same is not within the jurisdiction of this court. The power to transfer cases from one Bench to another Bench solely lies with the Hon'ble Chairman under Section 25 of the AT Act, 1985. The said power does not lie with the present Bench.
MAs.463/2021 & 1266/2021 & OA/95/2021 17
15. However learned counsel forcefully argued that this Bench has power to hear the OA and the MA.1266/2021. Learned counsel drew our attention to Section 5 of the AT Act, 1985. The relevant portion of Section 5 of the said Act is reproduced below:-
―5. Composition of Tribunals and Benches thereof - (1) Each Tribunal shall consist of [a Chairman and such number of Judicial and Administrative Members] as the appropriate Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and authority of the Tribunal may be exercised by Benches thereof.
[(2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Administrative Member.] [***] Sub-section (3) omitted by Act 19 of 1986, sec. 6 (w.r.e.f. 1.11.1985).
(4) Notwithstanding anything contained in sub-section (1), the Chairman-
[(a) may, in addition to discharging the functions of the Judicial Member or the MAs.463/2021 & 1266/2021 & OA/95/2021 18 Administrative Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Administrative Member, of any other Bench;]
(b) may transfer [a Member] from one Bench to another Bench;
[(c ) may authorize [the Judicial Member] or the Administrative Member appointed to one Bench to discharge also the functions of the [Judicial Member or the Administrative Member, as the case may be,] of another Bench; and;] As per Section 5(2) of the said Act, a Bench shall consist of one Judicial Member and one Administrative Member. Besides, as per Section 5(4)(c), the Hon'ble Chairman may authorize any Judicial Member or Administrative Member of one Bench to discharge also the functions of Judicial Member or Administrative Member, as the case may be, of another Bench. Apropos the present Bench MAs.463/2021 & 1266/2021 & OA/95/2021 19 both the provisions have been followed. This Bench is consisting of one Judicial Member and one Administrative Member. That apart, the Hon'ble Chairman, in accordance with Section 5(4)(c) of the said Act, authorized the Judicial Member of Guwahati Bench to discharge the functions of Judicial Member of the Principal Bench. At present there are acute shortage of Hon'ble Members in CAT and due to Covid-19 pandemic, the Courts of almost all the Benches of this Tribunal are functioning virtually. Keeping in view the shortage of Hon'ble Members, the Hon'ble Chairman has been running the Benches by associating Hon'ble Members of other Benches. This could be possible since the courts are functioning virtually. Due to Covid, these arrangements during the Covid pandemic are normal and have been made in MAs.463/2021 & 1266/2021 & OA/95/2021 20 the interest of justice. At present, the Hon'ble Chairman has been hearing and deciding the matters of Jammu and Srinagar Benches in addition to the matters of Principal Bench. As soon as physical hearing is restored, the composition of the Bench has to be from Principal Bench. Even otherwise, since the court proceedings of this matter have also been conducted through video conference, no harm is being cause to the petitioner. Therefore, the contention of the petitioner that this Bench is not competent to hear the matter on the ground that one of the Members of this Bench is not from Principal Bench is not tenable. Besides, the Hon'ble High Court of Uttarakhand has not yet stayed the order dated 04.12.2020 till date. Thus, there is no bar before this Bench to hear the OA.
MAs.463/2021 & 1266/2021 & OA/95/2021 21
16. As regards the 3rd contention of the petitioner learned counsel submitted that the proviso to Rule 6 of the CAT (Procedure) Rules, 1987 stipulates that with the leave of the Hon'ble Chairman, the application may be filed with the Registrar of the Principal Bench and subject to orders under Section 25 of the AT Act, 1985, the said application shall be heard and disposed of by the Bench which has jurisdiction over the matter. The application can be filed at two or may be more places where the cause of action has arisen, either wholly or in part. Therefore, the jurisdiction of this Tribunal is exhaustive and not limited to only once place
17. The petitioner is challenging the power of the Govt. of India to appoint persons to fill up the posts of Joint Secretary or equivalent in the Govt. of India MAs.463/2021 & 1266/2021 & OA/95/2021 22 including other prayers. All the prayers pertain to the jurisdiction of the Govt. of India and in respect of All India Officers. Therefore, the cause of action has arisen in New Delhi which is the seat of the Govt. of India and the DoPT deals with such cases. Moreover, all the records etc pertaining to policy matters are within the exclusive domain of the DoPT, and therefore, CAT, Principal Bench, New Delhi has the jurisdiction to decide and entertain the OA filed by the petitioner. The respondents accordingly filed PT.137/2020 wherein the petitioner entered appearance on 06.11.2020 and 04.12.2020 and the Hon'ble Chairman after hearing both the parties vide order dated 04.12.2020 transferred the matter from Nainital Circuit Bench to the Principal Bench.
MAs.463/2021 & 1266/2021 & OA/95/2021 23
18. As alleged by the petitioner, the Govt. of India has no problem to defend the respondents before the Nainital Circuit Court. In fact learned counsel appeared three times before the Uttarakhand High Court. That apart, Nainital Bench is Circuit Bench, jurisdiction lies with the Allahabad Bench. There is no regular sitting at Nainital Circuit Bench. On many occasions Hon'ble Members of the Principal Bench had travelled to Nainital to hold court at Nainital.
19. Learned counsel refuted the allegation of unduly delay in the proceeding, learned counsel for the respondents submitted that petitioner is deliberately delaying hearing of the OA. According to the learned counsel for the respondents, the UPSC and State of Uttarakhand had earlier filed their written statement and the respondents no, 1 & 2 had also MAs.463/2021 & 1266/2021 & OA/95/2021 24 filed reply in the month of February, 2021 but till date petitioner had chosen not to file rejoinder and thus delaying hearing of the OA.
20. It was further argued that the petitioner had already challenged the order dated 04.12.2020 passed by the Hon'ble Chairman in PT.137/2020 before the Hon'ble High Court in WPSB No.407/2020 wherein notice had already been issued including the Hon'ble Chairman. The Hon'ble High court is in seize with the matter. At that stage the petitioner has again filed this MA praying for remitting back the matter to the Nainital Bench on the same issue.
21. In view of the above, learned counsel for the respondents prayed for dismissal of this MA being not maintainable before this Bench.
MAs.463/2021 & 1266/2021 & OA/95/2021 25
22. We have heard the petitioner in person as well as the learned counsel for the respondents no.1 to 3. It is the specific submission of the petitioner in person that, since the power to transfer any case from one Bench to another Bench lies with the Hon'ble Chairman only as per Section 25 of the AT Act, 1985, this Bench has no power to decide the MA. The respondents no.1 to 3 also raised the said preliminary objection in para 1 of their reply to the present MA.
23. Situated thus, the point to be decided is whether this Bench has the power to transfer the OA.95/2021 back to Nainital Circuit Court from the Principal Bench as prayed for in this MA in view of Section 5(2) & 22(2) of AT Act, 1985, Rule 6 of CAT (Procedure) Rules, 1987.
MAs.463/2021 & 1266/2021 & OA/95/2021 26
24. For deciding this point we must go through the specific provision under the Act on the subject. Section 25 of the AT Act, 1985 which is relevant for deciding the issue is extracted below:-
―25. Power of Chairman to transfer cases from one Bench to another - On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench.‖ As per the said section, power to transfer case from one Bench to another is vested with the Hon'ble Chairman only. There is no other provision in the Act.
Thus, except the Hon'ble Chairman no Member either Judicial or Administrative nor any Division Bench has been conferred such power.
MAs.463/2021 & 1266/2021 & OA/95/2021 27
25. In view of the above, we are of the considered view that this Bench has no power to transfer the OA.95/2021 to the Nainital Circuit Bench as prayed for in this MA.
26. We have also noticed that the Hon'ble Chairman has recused himself from the matter. From the records and the arguments advanced on behalf of both the sides it is also found that the petitioner filed WPSB No.407/2020 before the Hon'ble High Court of Uttarakhand assailing the order dated 04.12.2020 passed in PT.137/2020 transferring the matter to the Principal Bench. In the said Writ Petition, the petitioner has impleaded the Hon'ble Chairman in person and notice has already been issued to him by the Hon'ble High Court. During the argument the petitioner also submitted that he has prayed before the Hon'ble High MAs.463/2021 & 1266/2021 & OA/95/2021 28 Court for expeditious hearing of the matter. According to him, the case will come before the Hon'ble High Court in the month of August, 2021.
27. The petitioner has been pursuing his remedy before the higher forum and for the same issue he has filed the MA before the CAT, Principal Bench. In other words, the issue involved in the present MA has already been subjudice before the Hon'ble High Court of Uttarakhand. When the Higher court is in seize with the matter, it will also not be prudent to decide the issue for judicial discipline. In our opinion, when the issue is subjudice before the Hon'ble High Court the same issue should not have been raised before this Tribunal vide the present MA. Both the proceeding for the same issue should not run concurrently. Even if CAT passes any order in the MA, the order to be MAs.463/2021 & 1266/2021 & OA/95/2021 29 passed by the Hon'ble High Court would hold the field.
28. For the forgoing reasons, this Bench cannot entertain the MA. The matter is adjourned sine die. MA.1266/2021:
29. By this MA filed under Section 30 of the AT Act, 1985 and Rule 24 of the CAT (Procedure) Rules, 1987, the petitioner is seeking following relief(s):-
―1. To initiate proceedings against Respondent No. 1 & 2, along with counsel for making false statements on 22.04.2021, in judicial proceedings, before this Tribunal under Section 30 of Administrative Tribunal Act, 1985, read with Section 195 & 340 of Code of Criminal Procedure, 1973, and Section 193 of Indian Penal Code.
2. To impose exemplary cost against the Respondents 1 & 2 for making false statements in judicial proceedings, before the Hon'ble Tribunal.
MAs.463/2021 & 1266/2021 & OA/95/2021 30
3. To pass any other order as deemed fit in facts and circumstances of the case.‖
30. The petitioner submitted that during the judicial proceeding of MA.463/2021 before this court on 22.04.2021 the learned counsel for the respondents no.1 to 3 had made completely false information that MA.463/2021 had been disposed off vide order dated 17.02.2021. The petitioner, therefore, prays for initiation of proceedings against the respondents no. 1 & 2 along with the learned counsel for the respondents under Section 30 of Code of Criminal Procedure, 1973, and Section 193 of the Indian Panel Code.
31. The petitioner further submitted that the learned counsel for the respondents who had earlier submitted that MA.463/2021 had already been disposed off on 17.02.2021 and now the same counsel MAs.463/2021 & 1266/2021 & OA/95/2021 31 has filed reply in the same MA from which it is evident that the learned counsel made deliberate statement to mislead this court.
32. On the other hand, learned counsel for the respondents submitted that he never submitted any deliberate false information before this court. Referring to para 2 of the order dated 22.04.2021, learned counsel submitted that he had given submission before this court but this court had not expressed any opinion.
33. We have gone through the order dated 22.04.2021 passed by this Bench in the MA.463/2021. The same is reproduced below:-
―While the matter was taken up, at the outset, Sri SanjeevChaturvedi, applicant who appeared in person submitted before the BAR that he is not keeping well from last two MAs.463/2021 & 1266/2021 & OA/95/2021 32 days and unable to argue on the matter. Accordingly, he prays for adjournment of the matter.
On the other hand, Sri HanuBhaskar, learned counsel appearing for the respondent Nos.1 to 3 submitted that this M.A. has since been disposed of long back vide order dated 17.02.2021. In view of that, matter has no stand.
Keeping in view of the above, registry is hereby directed to place a copy of the order dated 17.02.2021 passed in the present M.A. as well as copy of this order be supplied to the applicant either in his email or through whatsapp. List the matte on 17.05.2021.‖ From the records of the matter, it is seen that the MA.463/2021 has not been disposed of vide order dated 17.02.2021 and the MA is still alive. Thus, the submission made by the learned counsel for the respondents is not true.
MAs.463/2021 & 1266/2021 & OA/95/2021 33
34. For invoking the powers as prayed for by the petitioner in person, we need to go through the specific provisions as provided under the AT Act, 1985, the Indian Panel Code and the Code of Criminal Procedure, 1973.
Section 30 of the AT Act, 1985 is quoted below:-
―30. Proceedings before a Tribunal to be judicial proceedings - All proceedings before a Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860).‖ Section 195 & 340 of the Code of Criminal Procedure, 1973 is extracted below:-
―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--
MAs.463/2021 & 1266/2021 & OA/95/2021 34
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (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 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), MAs.463/2021 & 1266/2021 & OA/95/2021 35 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.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-
section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case MAs.463/2021 & 1266/2021 & OA/95/2021 36 of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that--
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
195A. Procedure for witnesses in case of threatening, etc.--A witness or any other person may file a complaint in relation to an offence under section 195A of the Indian Penal Code (45 of 1860).‖ ―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 MAs.463/2021 & 1266/2021 & OA/95/2021 37 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 sub-section (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 MAs.463/2021 & 1266/2021 & OA/95/2021 38 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;
(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.‖ Section 193 of the Indian Panel Code is reproduced below:-
―193. Punishment for false evidence.-- Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabri- cates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates MAs.463/2021 & 1266/2021 & OA/95/2021 39 false evidence in any other case, shall be punished with imprisonment of either de- scription for a term which may extend to three years, and shall also be liable to fine.‖ From the reading of the above provisions, it is clear that the above provisions are applicable in the case of exhibiting or giving false evidence.
35. In the instant case, on 22.04.2021 though the learned counsel for the respondents had orally submitted that MA.463/2021 was disposed off on 17.02.2021 he has not exhibited or produced any evidence before this court. Besides, the respondents no.1 & 2 had not filed any reply/counter to the MA on or before 22.04.2021. Even the petitioner failed to establish his said submission to attract the provisions as cited by him.
MAs.463/2021 & 1266/2021 & OA/95/2021 40
36. In view of the above, the MA.1266/2021 fails. Accordingly, same is dismissed.
OA.95/2021
37. Since in the MA.463/2021, we have adjourned the matter sine die, let the matter be listed on a later date to be mentioned by any of the parties or as per convenience of the parties on which date the petitioner shall appraise the court about the status of WPSB No.407/2020 pending before the Hon'ble High Court of Uttarakhand.
(A.K BISHNOI) (SMT. MANJULA DAS)
MEMBER (A) MEMBER (J)
/BB/
MAs.463/2021 & 1266/2021
& OA/95/2021