Rajasthan High Court - Jaipur
Bajrang Lal Laxmi Narain Dadli Deedwana ... vs Jeetmal And Ors. on 27 April, 2000
Equivalent citations: 2000(2)WLN319
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. It is comeuppance for this Court to decide the present case involving horrendous deeds of fabricating false evidence leading to prima facie offence against public justice eroding credibility of administration of justice compelling this Court to recall its order dated 23.8.1999 under Article 215 read with Section 151 CPC to keep the record straight. This Court being court of record under Article 215 of the Constitution owes a duty to itself to ensure that its records are free from any blemish or error as these records are preserved for well being of posterity, symbolizing eternity. If any such error is brought to its notice in any manner whatsoever and at any time whatsoever it is to be corrected to keep the record straight in accordance with law.
2. The amazing but true facts of this case are so repugnant to my judicial sense of decency that it becomes sudorific and painful for me even to narrate the facts which compel this Court to recall its order dated 23.8.1999 and pass further orders to keep the scale of justice even. Recalling of the aforesaid order dated 23.8.1999 in the case on hand becomes necessary to prevent rippling disastrous effect to present justice system.
3. Every court expects the litigants, the witnesses, the officers and other persons, who come to the Court in one capacity or another, to come with clean hands, adhere to truth and assist the Court in doing justice in the case. The confidence which is reposed by the Court in above persons and authorities is sometimes shaken when in place of placing before the Court the truth, people to falsehood either by fabricating documents or by making false statements orally or in writing. The misadventure in which such unscrupulous persons indulge are prompted by euphoria with an unholy expectation that the Court shall not be in a position to detect the falsehood or take appropriate steps against the erring persons or culprits, in accordance with rule of law of the land. The duty to devote the time and energies available to the court for the purpose of doing justice in the cases pending before the courts, leaves little room for detection as well as fabrication of false evidence by those who try to pollute the stream of justice by false statements or by fabrication of false documents. Besides, the anxiety on the part of the court is to discourage persons from coming to the court as parties or witnesses for fear of penal action, if any part of their statements are found to be false or evidence produced by them is found to be untrue. It is true that the courts are to take action under Section 340 of the Criminal Procedure Code, 1973, only in those cases where it is necessary to do so for resorting or maintaining the flow of the stream of justice from the fountains known as courts of justice. The present case, squarely falls within the category of those cases in which it is not only permissible but expedient in the interest of justice to take appropriate action under Section 340 of the Criminal Procedure Code, 1973, by making an order for filing a complaint against the persons who have, by their acts, omissions and commissions, left no stone unturned to mislead this Court and pervert the course of justice by making false statements and forging the judicial record during the pendency of the instant second appeal.
4. The appellant (plaintiff) M/s. Bajrang Lal Laxmi Narain filed the Civil Suit No. 173/87 (Bajrang Lal v. Jeet Mal), in the court of Munsif and Judicial Magistrate, Deedwana, on 15.11.1986 for grant of permanent injunction against the respondent-defendant. The suit was dismissed on 20.12.1993, by the learned Munsif and Judicial Magistrate, First Class Deedwana. An appeal was filed by the plaintiff in the court of Additional District and Sessions Judge, Nagaur (Camp at Deedwana), on 21.12.1993. Shri Mahendra Maheshwari, Additional District and Sessions Judge, Nagaur (Camp at Deedwana) dismissed the appeal by judgment dated 11.7.1997.
5. In search of justice the appellant Bajrang Lal presented the present second appeal in the office of the Registry of this Court, on 20.10.1997. The office of the Registry pointed out five defects in the instant appeal.
6. On 30.4.1998, the learned Counsel for the appellant was granted two weeks' time to remove the defects pointed out by Office, with a direction to the effect that if defects are not removed within stipulated period of two weeks, the case will be taken up for rejection. When the appeal was posted on 27.7.1998, none appeared on behalf of the appellant. Defects were not removed, hence, the appeal was dismissed for non-prosecution on the aforesaid date. However, on 20.5.1998, it was ordered that if the counsel for the appellant removes the defects within one week, then, the order for non-prosecution will not take effect. Four defects were removed within the stipulated period and an application was moved by the learned Counsel for the appellant expressing his inability to remove Defect No. 2, for the reason that the decree under appeal was not drawn in pursuance of judgment dated 11.7.1997, passed by the first appellate court. It was also brought to the notice of the court, by the learned Counsel for the appellant that no decree-sheet was drawn in pursuance of judgment dated 20.12.1993, passed by the trial court.
7. The appeal was listed before this Court on 14.5.1999 and on the aforesaid date, keeping in view the averments made in the application as well as the statement made at the Bar, the Deputy Registrar (Judicial) of this Court was directed to call for explanations of the Presiding Officers of the learned trial court as well as of the learned first appellate court, under what circumstances, decree-sheets in pursuance of their respective Judgments are not drawn.
8. On 12.7.1999, when the explanations of Presiding Officer of learned trial court as well as Presiding Officer of learned first appellate court were not received in pursuance of the order dated 14.5.1999, the Deputy Registrar (Judicial) was directed to send reminders, to obtain their explanations, since the appeal was pending from 20.10.1997, only for removing Defect No. 2. The appeal was directed to be listed immediately after receipt of the explanations.
9. On 12.8.1999 the appeal was posted along with the explanation submitted by learned trial court. The Presiding Officer of the first appellate court did not furnish any explanation in pursuance of the order dated 14.5.1999 and reminder dated 12.7.1999. Having considered the explanation submitted by the Presiding Officer of the trial court, the Court found that in an evasive explanation, the learned Civil Judge (Jr. Div.) and Judicial Magistrate, First Class, Deedwana, had avoided to give any cause why in pursuance of judgment dated 20.12.1993, a decree-sheet could not be prepared. The so-called explanation of learned Civil Judge (Jr. Div.) and Judicial Magistrate, First Class, Deedwana, was rejected directing him to remain present personally before the Court on 23.8.1999, to explain his stand.
10. The Deputy Registrar (Judicial) brought to the notice of the Court that Shri Mahendra Maheshwari, RHJS, did not submit any explanation as to under what circumstances the decree was not prepared by him, in pursuance of the judgment dated 11.7.1997. Consequently, the Court directed Shri Mahendra Maheshwari, to remain present in Court, on 23.8.1999, with his explanation as to why the decree-sheet was not prepared in pursuance of the judgment dated 11.7.1999 in Civil Appeal No. 32/93 and under what circumstances the appeal filed before him without copy of the decree-sheet (of the trial court) was entertained. The Registry was directed to requisition the record through special messenger.
11. The appeal came up on 23.8.1999, for orders, on which date both Presiding Officers of trial court and first appellate court submitted their written explanations as well as oral explanations. From perusal of the record summoned from the learned trial court, the Court was satisfied that in pursuance of judgment dated 20.12.1993 passed by trial court, no decree-sheet was drawn up. However, since the Presiding Officer of the trial court was found seriously repenting the mistake in not preparing the decree in pursuance of his judgment dated 20.12.1993 and further on the statement of the Presiding Officer of the trial court that he was only a beginner novice judicial officer, the proceedings against him were dropped by this Court with a suggestion not to repeat such glaring mistake in future and the explanation was accepted.
12. On 23.8.1999. Shri Mahendra Maheshwari appeared before the Court and submitted his explanation. In his explanation, he pointed out that he had been transferred to Parbatsar, as Additional District Judge, in May, 1998 and that he did not receive the communication dated 14.5.1999 and the reminder dated 27.7.1999, sent by the Office of this Court. Regarding the admission of the first appeal, without the copy of the decree-sheet of the trial court, Shri Maheshwari gave the explanation that he was neither posted on the date when the first appeal was admitted, nor after its admission, any party raised any objection to the entertainability of First Appeal No. 32/93, before him, on the ground that memo of appeal was not accompanied with decree of the trial court. Regarding the preparation of decree-sheet in pursuance of his judgment dated 11.7.1997, Shri Mahendra Maheshwari submitted that soon after the pronouncement of the judgment, he sent the file to the office for necessary action and that no-body brought to his notice that decree-sheet had not been prepared and in Para No. 5, he pointed out that on inspection of the file, he came to know that the decree-sheet was prepared and was signed and placed on record.
13. From perusal of the record of the first appellate court, it was revealed that the memo of appeal filed under Section 96, CPC, was not accompanied with certified copy of the decree of the learned trial court, yet, the first appeal was entertained against the mandatory provisions, envisaged under Section 96, CPC, read with Order 41, Rule 1 of CPC. The Presiding Officer of the first appellate court, in his written and oral explanation, stated that the appeal was not presented before him. so he could not be able to detect such defect. It was pointed out that even the Office has not reported that the appeal was defective. In the facts and circumstances of the case, the explanation submitted by the Presiding Officer of the first appellate court, in this regard, was accepted, with a suggestion to ensure and see to it that this office-report must agree with the facts of each case in future. Looking to the facts and circumstances of the case, in the interest of justice, the preparation of the decree in pursuance of judgment dated 20.12.1993, passed by the learned trial court, was dispensed with under Section 151, CPC. Nevertheless, a close scrutiny of the record of the first appellate court revealed on 23.8.1999 that in pursuance of judgment under appeal dated 11.7.1997, a decree-sheet was drawn on the date of pronouncement of the judgment.
14. After considering the arguments raised by Mr. Ranjeet Joshi, the learned Counsel for the appellant and the Presiding Officer of the first appellate court, a presumption under Section 114(e) of the Indian Evidence Act/was raised by the Court, which provides that judicial and official acts are regularly performed. The aforesaid presumption is inferable from reading of Paragraphs No. 3 and 4 of the order dated 23.8.1999. In such a situation, the learned Counsel for the appellant was directed to apply for certified copy of the decree under appeal, if so advised by the appellant and file the same before the office to compute limitation under Section 12 of the Limitation Act. The Court declined to remove Defect No. 2. as a matter of course, because of the fact that Defect No. 2 was related to law of limitation. It was made clear that in case, the certified copy of the decree prepared in pursuance of judgment dated 11.7.1997, passed by first appellate court is filed in the Office, the Stamp Reporter shall compute limitation of the instant appeal in accordance with law as envisaged under Section 12 of the Indian Limitation Act. The Registrar General was also directed by the aforesaid order, to issue a circular to all subordinate courts, to each district judgeship and outline courts, apprising them to prepare decree-sheets in pursuance of their judgments, with care and caution, as pointed out by the order of this Court.
15. After passing of the order on 23.8.1999, as stated hereinabove, complaints started reaching to this Court, against the presiding officer of the first appellate court and the clerk attached to him while he was functioning as Additional District and Sessions Judge, Deedwana. The improper conduct, alleged against the Presiding Officer of the first appellate court, was that the decree-sheet in Civil Appeal No. 32/93, had not been prepared in time, as required by Order 20, Rule 6-A of the Civil Procedure Code, within a period of 15 days from the date of pronouncement of the judgment and, therefore, the certified copies thereof had not been supplied to the parties. It is alleged that when the defect was brought to the notice of this Court and explanation was called from Presiding Officer of first appellate court, for not preparing the decree-sheet, then, the Presiding Officer of the first appellate court, in order to cover up his omission, managed to get the ante-dated decree-sheet prepared, in collusion with junior clerk, Durga Ram, who was not empowered under General Rules (Civil), to prepare a decree-sheet. It is alleged that he had placed forged decree-sheet on the record of the file of Civil First Appeal No. 32/93 and submitted an explanation before this Court, which was false.
16. On receipt of a number of complaints, the Court considered it expedient in the interest of justice, to re-examine the record of Appeal No. 32/93, in the light of aforesaid allegations suo motu. When record of Appeal No. 32/93 was examined by the Court, the allegations made against the Presiding Officer of the first appellate court and his junior clerk, were prima facie found to be true. The following glaring facts were noticed after re-examination of record of First Appeal No. 32/93, summoned in this Court by special messenger, which raise serious doubt regarding correctness of the explanation submitted by Shri Mahendra Maheshwari:
(A) The judgment in the first appeal was signed and pronounced on 11.7.1997. On every page of the judgment, two seals were found to have been affixed, (i) circular seal of the court and (ii) designation seal just below the signatures of the Presiding Officer. A perusal of seals affixed on the judgment dated 11.7.1997 indicated that the seals which were used on 11.7.1997 were of Upper Zila and Sessions Nyayadhish, Nagaur and the words "Camp Deedwana" were written by the clerk in hand, in order to show that the judgment had been delivered at Camp Deedwana, but in decree-sheet as well as the signatures on the order-sheet just below the endorsement "decree signed" bear the impression 'of a different seal. The words used in designation seal, are "Upper Zila and Sessions Nyayadhish, Nagaur Shivir Nyayalya Deedwana". If the designation seal and the circular seal containing the words "Shivir Deedwana" were in existence and were available on 11.7.1997, when the judgment and the order-sheet had been signed, there was no reason why this seal was not used and the seal of Additional District and Sessions Judge, Nagaur, was used, wherein,"Camp Deedwana" were written by clerk in hand. The use of different seals, by necessary implication, suggested that on11.7.1997 when the judgment and order-sheet had been signed by the Additional District & Sessions Judge, Nagaur, at Camp Deedwana, no separate seal of Camp Deedwana, was available and, therefore, the seal of Additional District & Sessions Judge, Nagaur, was used, and "Camp at Deedwana" were added in hand. The designation seal of Additional District & Sessions Judge, Nagaur, Shivir Nyayalya Deedwana, was got prepared at a later stage. Similarly, the circular seal of the court of Additional District & Sessions Judge, Nagaur, Camp Court Deedwana, was also got prepared at a later stage.
(B) It was apparent on the face of record that circular seal of the court, used on each page of the judgment, is smaller in shape and size, whereas, circular seal used on the decree-sheet, is bigger in shape and size.
(C) There are two applications for copies: one, purported to have been signed by the counsel for the appellant; and the other, purported to have been signed by the counsel for the respondent Both these applications purported to have been submitted in the court of Additional District Judge, Nagaur (Camp at Deedwana), on 11.7.1997, the date on which the judgment was pronounced. In both the applications, prayer was made to supply the copy of the judgment as well as the decree-sheet. The report made on these applications, shows that the application filed by the counsel for the appellant, was registered at S.No. 1295 and photostat copies had been prepared. Total number of pages that were copied, were four. The copying fee was Rs. 3.20 and Rs. 6.00, and copies had been prepared on 24.7.1997. The application filed by the counsel for the respondent, was registered at S.No. 1297. the number of pages that were copied, were four. The copying fee was Rs. 3.20 and Rs. 6.00. The date on which the copies were prepared, was 24.7.1997. The report on both the applications, show that only four pages had been photo-copied. It may be pointed out that the judgment dated 11.7.1997 passed by the Additional District and Sessions Judge, Deedwana in civil first appeal No. 32/93 runs in four pages. This shows that in pursuance to both the applications for copies, the photo state copies of the Judgment only were prepared by the office, inspite of the fact that in both the applications for copying, request had been made for supplying copy of the judgment as well as the decree-sheet. In other words, the report on both the applications for copying clearly shows that copy of decree sheet had not been prepared and was not supplied to either party. Both the parties had requested that copies of judgment as well as the decree-sheet be supplied to them. In the facts and circumstances of the case, the report on the application for copies suggested that the decree-sheet was not in existence even upto 24.7.1997, the date on which the copies are reported to have been prepared by the Copying Section in pursuance to the applications for copies filed by the counsel for the appellant and the respondent;
(D) A perusal of the record of the civil first appeal No. 32/93 shows that at the time of indexing, page numbers were given with a red ball-pen. Every leaf of this file bears page number in red ink but the decree-sheet in question, bears a page number with blue ink. The page number given on this decree-sheet is A 18/1. It is in blue ink. This fact suggests that the decree-sheet had been prepared at a subsequent date and page number was written on it by blue ink instead of red ink because it was prepared on a later date.
(E) The special messenger, who was sent under the orders of this Court, to bring the record of the first appellate court, returned without bringing the record of First Appeal No. 32/93, which means that the record was not handed over to him when he reached Nagaur and Deedwana courts.
(F) A bare perusal of Paragraphs No. 4 and 5 of the explanation in writing, submitted by Shri Mahendra Maheshwari, shows that he has deliberately avoided to give answer, whether the decree-sheet was prepared and was signed by him on 11.7.1997, on which date the judgment was pronounced by him. If the decree-sheet was prepared on 11.7.1997, there was nothing to prevent Shri Maheshwari from stating in his explanation that the decree-sheet was prepared and signed by him on 11.7.1997.
17. However, since this Court is not only disciplinary authority of the subordinate courts of Rajasthan under Article 235 of the Constitution, but it is also being repository of their dignity, after signing the forged documents of Appeal No. 32/93, misleading the Court to believe that the decree-sheet was prepared on the date of pronouncement of the judgment, the Registrar General was orally directed to keep the record in his safe custody, in a sealed cover and in abundant caution, the Court considered it expedient in the interest of justice to ask the learned District Judge, Merta, to verify the veracity of the truth of the allegations, about forging of the record of Appeal No. 32/93 and affixing seals on the decree-sheet, which were not in existence on 11.7.1997.
18. The learned District Judge, Merta, submitted in detail, factual report dated 30.10.1999, along with 13 annexures, together with oral statements of Shri Om Prakash Moth, the counsel appearing for the respondent before the first appellate court; Shri Ram Gopal, the counsel appearing for the appellant, before the first appellate court; Shri Durga Ram; Shri Govind; Shri Moti Lal; and Shri Sanjay, who were likely to have knowledge about the forgery, committed in the judicial record, pertaining to First Appeal No. 32/93, leading to prima faice offence against public justice and offences relating to documents given in evidence during the pendency of the present second appeal before this Court.
19. Om Prakash Moth was the counsel for the respondent in Civil First Appeal No. 32/93. In his statement, he has stated that he moved an application for copies of the judgment as well as the decree-sheet on 11.7.1997 and the copy of the judgment was supplied to him on 24.7.1997, but the copy of the decree-sheet was not supplied to him. In answer to the question, what is the reason for not supplying copy of the decree-sheet, he replied that since the judgment has been delivered in favour of the respondent, he did not consider it necessary to take the decree-sheet. His statement shows that he had moved an application for copies of judgment as well as the decree-sheet, and on 24.7.1997, he was Supplied the copy of the judgment and copy of the decree-sheet was not supplied to him.
20. Durga Ram is a clerk, who has prepared the decree-sheet in question. A decree-sheet is to be prepared by the Reader, according to the General Rules (Civil), which were in force when the judgment was pronounced on 11.7.1997, in Civil Appeal No. 32/93. Durga Ram has stated that he had prepared the decree-sheet on 11.7.1997 and that the Additional District & Sessions Judge, Shri Mahendra Maheshwari, had signed the decree-sheet in his presence. It is admitted by him that on that day, Moti Lal was working as a Reader. He has tried to prove that the decree in question had been prepared on 11.7.1997 and was signed by the Presiding Officer, on the same date, but, on a careful consideration of his statement, his statement does not inspire any confidence. It was admitted by Durga Ram that Moti Lal was working as Reader on 11.7.1997. It is the function of the Reader to prepare the decree-sheet and, therefore, Durga Ram, who was only a Lower Division Clerk, had no business to prepare the decree-sheet himself. When he was asked about the reason for preparing the decree-sheet, he stated that the applications for copies had been filed, therefore, he sent the file to the Copying Section, with the judgment and the decree-sheet. When he was shown the Register, he admitted that there was no entry in the Despatch Register showing that the file has been sent to the Copying Section. Regarding the receipt of applications for copies he has admitted that he has received the applications for copies on 12.7.1997 and he sent the file to the Copying Section on 24.7.1997. The entire statement of Durga Ram is full of contradictions. At one stage, he has stated that he has prepared the decree-sheet and sent the file to the Copying Section, because, the applications for copies had been received, but there is no entry in the Despatch Register showing transmission of the file to the Copying Section on 12.7.1997. At another stage, he has stated that the file was sent to the Copying Section on 24.7.1997. The circumstances, namely, (i) Durga Ram was not empowered to prepare the decree-sheet, (ii) there is no endorsement in the Despatch Register showing that the file of the appeal was sent to Copying Section (iii) the admission that the file of the appeal had been sent to the copying section on 24.7.1997; and (iv) the seals on the decree sheet are different from the seals which had been affixed on the judgment pronounced on 11.7.1997, clearly shows that the statement of Durga Ram is not correct. The learned District Judge Merta put a direct question to him as to who had written in hand in circular seal of the court and designation seal "Camp Deedwana" affixed on the Judgment and order sheet dated 11.7.1997, Shri Durga Ram stated that he did not know who had written these words in hand.
21. Sri Ram Gopal was the counsel for the appellant in the first appellate court. He has stated that on 11.7.1997 he moved an application for the copies of the judgment and the decree-sheet and obtained the copy of the judgment on 24.7.1997. It is further stated by him that though he had moved an application for the copies of the judgment and decree-sheet, he received copy of the judgment only. He has added that he did not deem it necessary to take the copy of the decree-sheet. Whether he did not consider it necessary to take steps for obtaining copy of the decree-sheet is not material, although, it is not correct in view of statement made by Laxmi Narain appellant on Oath before this Court on 10-2.2000. What is material is that he had moved an application on 11.7.1997 for the copies of the judgment as well as for the decree-sheet and on 24.7.1997 he was supplied the copy of the judgment only and the copy of the decree-sheet was not supplied to him.
22. Shri Govind is a clerk of Shri Ram Gopal. He has also stated that application was given for copies of judgment and the decree-sheet but the copy of the judgment only was supplied.
23. Shri Moti Lal was posted as Reader in the Court of Additional District and Sessions Judge, Nagaur in the month of July, 1997. He has stated that on 11.7.1997 he was on duty and was working as a Reader at Deedwana. Regarding preparation of the decree-sheet he has stated that decree-sheet was not prepared by him as he has taken charge only seven days ago on 30.6.1997. The learned District Judge, Merta, also asked a pointed question to Shri Moti Lal as to who had written in hand in circular seal of the court and designation seal "Camp Deedwana", affixed on the judgment and order-sheet dated 11.7.1997. He expressed his inability to disclose, who had written in hand "Camp Deedwana" in the circular seal of the court and designation seal, affixed on the judgment and order-sheet dated 11.7.1997.
24. Shri Sanjay was posted as clerk in the copying section on 11.7.1997. He has stated that applications for copies were presented before him and he made endorsement on them and these applications were entered at serial Nos. 1295 and 1297 in his own handwriting. However, he has stated that in application filed on behalf of Ram Gopal, Advocate, the copy of the decree-sheet was not required and in application filed on behalf of Om Prakash Moth, Advocate, the copy of the judgment only was needed. It is further stated by him that the date on which these applications for copying were filed, only the order-sheet and the judgment had been signed and he handed over both these applications for copies to the concerned clerk Durga Ram on 12.7.1997 and made entries in Register No. 14 and he received the record on 24.7.1997. The certified copies were prepared on 24.7.1997. It is categorically stated by Shri Sanjay that the clerk Durga Ram, had given to him the judgment only for the purpose of preparation of the copy and the decree-sheet was not given to him and he issued copies of the judgment in pursuance to both the applications for copies. The statement of this witness clearly shows that on 24.7.1997, when the record was sent to him for preparation of the copies on the applications filed by the learned Counsel for the appellant and the respondent, the decree-sheet was not sent to the copying section and the statement of Durga Ram, that he sent the record containing the decree-sheet is falsified.
25. On 14.12.1999, the appeal was listed before Hon'ble Mr. Justice A.K. Singh, who passed the following order in the appeal:
The learned Counsel for the appellant submits that application under Section 5 of the Limitation Act has been filed by him on 13.12.1999. It appears from the order sheets of this appeal that the matter was heard by Hon'ble Mr. Justice R.R. Yadav, J.
In view of this it is proper that under Rule 66 of the Rajasthan High Court Rules, 1952, the case be listed before the Single Bench presided by Hon 'ble Mr. R.R. Yadav, J. The Deputy Registrar (Judl.) to comply with this direction.
26. In pursuance of the aforesaid order dated 14.12.1999 the present appeal was listed before this Court on 7.2.2000. On 7.2.2000 a detail order was passed directing the Deputy Registrar (Judicial) to submit his report on or before 10.2.2000 as to how the record of the First Appeal No. 32/93 was received in the office. The Deputy Registrar (Judicial) was also directed to ask explanation from the special messenger, who was sent to bring the record but returned empty hands without record of the First Appeal No. 32/93. The learned Counsel for the appellant Mr. Ranjeet Joshi was directed to inform the appellant Laxmi Narain to remain personally present before this Court on 10.2.2000 to give his statement on oath regarding his application applying for certified copy of judgment and decree payment of expenses to his counsel in this regard and any other information relating to preparation of decree sheet. In pursuance of the order dated 7.2.2000 the statement of the appellant Laxmi Narain was recorded on 10.2.2000 and the report submitted by the Deputy Registrar (Judicial) with explanation of special messenger was received.
27. In his statement, Laxmi Narain stated that the judgment in the first appeal was given by the Additional District Judge, Nagaur camp Deedwana on 11.7.1999. On that day he was present in the Court. Since the judgment was against him, he moved an application, for supplying copy of the judgment as well as decree as he intended to file an appeal before the High Court. Laxmi Narain further stated that though he had applied for the copy of the judgment as well as the decree, the copy of the judgment was delivered to him but the copy of the decree was not given to him and on the basis of the judgment alone he filed the appeal before the High Court through his Advocate Shri Ranjeet Joshi. Laxmi Narain has added that his Advocate in "the High Court advised him to obtain a copy of the decree and file the same in the second appeal in the High Court. Therefore, he went to Deedwana on several occasions but he could not obtain the copy of decree-sheet and ultimately he moved an application to the effect that objection raised by the office could not be removed because both the lower courts have not prepared the decree sheet. Laxmi Narain further stated that Shri Ram Gopal Agarwal, Advocate of Deedwana, had told him that the decree-sheet had not been prepared and, therefore, the copy of the decree-sheet could not be supplied and he communicated this information to his counsel Shri Ranjeet Joshi and Shri O.P. Joshi by telephone. It is also stated by him that after 23.8.1999, when the record of first appellate court was received, the decree-sheet was found in it and his advocate sought his explanation and he told him that he had heard that the decree-sheet had been prepared, during the period between the arrival of the special messenger (sent by this Court) and the transmission of the record to this Court. Shri Laxmi Narain. further added in his statement that, there was a rumour in Deedwana that decree-sheet had been forged by ante dating it. Thus, the version given by the appellant Laxmi Narain is to the effect that the decree-sheet had not been prepare by the Additional District Judge, Nagaur camp Deedwana and, therefore, he was not supplied a copy of the decree-sheet inspite of the fact that in his application dated 11.7.1997 he had requested for the certified copy of the judgment as well as the decree-sheet, and that, inspite of repeated attempts he could not obtain certified copy of the. decree-sheet and his Advocate Shri Ram Gopal Agarwal of Deedwana had informed him that the decree-sheet had not been prepared and therefore, copy thereof could not be supplied and that there was a rumour among the people at Deedwana that the decree-sheet had been prepared some time after the arrival of the special messenger sent by this Court and the transmission of the record to this Court and it had been forged by ante-dating it.
28. Heard the learned Counsel for the appellant Mr. Ranjeet Joshi and learned arnicas curiae Mr. Rajendra Mehta, Mr. Dinesh Maheshwari and Mr. B.M. Bhojak who are appointed as amicus curiae looking to the peculiar facts and circumstances of the case leading to moral turpitude of a judicial officer and a member of staff of subordinate judiciary. I have also perused the written submissions made by the amicus curiae in the present case.
29. The learned amicus curiae Shri Rajendra Mehta submitted during the course of his arguments that in the present case neither decree sheet was prepared by junior clerk Shri Durga Ram on 11.7.1997 on the date of pronouncement of judgment nor it was signed by presiding officer of first appellate court on the date of pronouncement of judgment. It is further submitted by Shri Mehta that it is established in the present case beyond reasonable doubt that judicial record of first appeal No. 32/93 has been tampered with and manipulated by inserting decree sheet in the file of aforesaid first appeal later on during the pendency of the instant second appeal before this Court.
30. Learned amicus curiae Shri Dinesh Maheshwari invited attention of the Court on decree sheet at page A 18/1 and judgment under appeal at pages A 17/1 to A 17/4 wherein two different round seals and two different designation seals are affixed. It is submitted by Shri Maheshwari that round seals affixed on Pages A 17/1 to A 17/4 of the judgment under appeal are small in size and shape wherein 'camp Deedwana' are written by hand whereas round seal affixed on page A 18/1 on the decree sheet is bigger in size and shape and 'Camp Court Deedwana' is inscribed in the seal itself. Similarly, designation seal affixed on pages A 17/1 to A 17/3 at three places one on every page and at page A 17/4 of the judgment in appeal, designation seal is affixed at two places wherein 'Camp Deedwana' is written in hand, whereas the designation seal used on the decree sheet at two places 'Shivir Nyayalay Deedwana' is inscribed in the seal itself. It is submitted by Shri Maheshwari that there are over writings and addition of words by different hand writing and different ink on two copying applications on record of first appeal No. 32/93 at pages D 19/1 to D 19/2. The indexing itself of the aforesaid first appeal has been over written for no actual reason except to mislead the court that the decree sheet was prepared on 11.7.1997 on the date of pronouncement of judgment whereas it has been prepared later on when the record of first appeal was summoned by this Court by special messenger.
31. Shri B.M. Bhojak was appointed amicus curiae as he has long practical experience of holding office of Additional District Judge and District Judge at various places in the State of Rajasthan and practising as an advocate in the High Court for a long time. It is submitted by Shri Bhojak that at a time only one circular seal of court and one designation seal is provided to a presiding judicial officer of the rank of Additional District Judge for affixing on judgment and decree sheet after making entry in perishable register. It is further submitted that decree sheets in courts of Additional District Judges are invariably prepared by reader of presiding officers under General Rules (Civil). Shri Bhojak invited my attention to various order sheets on which designation seal wherein 'Shivir Nyayalay Deedwana' inscribed in the seal itself are affixed which was not in existence on these dates. In support of his aforesaid argument he placed reliance on the order sheet dated 11.7.1997, wherein two designation seals are affixed on the same page. In one designation seal 'Camp Deedwana' is written in hand, whereas, on the other designation seal 'Shivir Nyayalay Deedwana' is inscribed in the seal itself. Shri Bhojak meticulously pointed out various other circumstances, which indicate that decree-sheet was neither prepared on 11.7.1997, nor signed on the date of pronouncement of judgment but later on it was inserted after tampering with judicial record of first appeal No. 32/93 during the pendency of present appeal before this Court. Shri Bhojak adopted the argument of Shri Rajendra Mehta and Shri Dinesh Maheshwari in tampering and manipulating the index of first appeal No. 32/93 in different inks and in different hand writings.
32. It is urged by Shri Ranjeet Joshi, appearing on behalf of the appellant that when he was granted two weeks' time on 30.4.1998, by court, to remove the defects pointed out by the Officer he immediately contacted the appellant on telephone and informed him to bring the certified copy of decree. Appellant contacted his counsel who has applied for certified copy of judgment and decree to give him the certified copy of decree but he was informed by his counsel that decree sheet is not prepared in pursuant to judgment pronounced on 11.7.1997. Shri Joshi submitted that he also sent telegram to the appellant to bring the certified copy of decree as under Order 41, Rule 1 of Civil Procedure Code and under the Rules of the High Court certified copy of decree cannot be dispensed with. Appellant was running from pillar to post to obtain the certified copy of decree but all the time he was informed by his counsel Shri Ram Gopal that certified copy of decree had not been prepared. In support of his aforesaid contention he invited my attention to the statement of appellant recorded on oath before this Court on 10.2.2000 and towards his application, which he moved in this regard. According to Shri Joshi since in the present case limitation is to be computed from the date of preparation of decree and no decree was prepared upto passing of order by this Court calling explanation of presiding officer of first appellate court hence delay of 701 days reported by the office deserves to be condoned under Section 5 of the Indian Limitation Act.
33. I have given my most anxious consideration to the contentions raised at the Bar. Carefully perused all the materials available on the record, including fact finding report dated 30.10.1999, submitted by learned District Judge, Merta. I have critically examined in detail the statements of witnesses, recorded by learned District Judge, Merta, during preliminary enquiry in preceding paragraph of this order. I have re-examined the explanation, submitted by the Presiding Officer of the first appellate court after lifting presumption under Section 114(e) of Evidence Act, which was raised by this Court, at the time of passing order on 23.8.1999, as envisaged under Illustration (e) of the said section.
34. In the present case, the core questions, which this Court is called upon to decide, would be whether the allegations to the effect that the decree-sheet available in the file of civil first appeal No. 32/93 instituted in the court of Additional District Judge, Nagaur camp at Deedwana and decided by Shri Mahendra Maheshwari, R.H.J.S. on 11.7.1997 is a forged document and the forgery has been committed by putting on an endorsement on the order sheet dated 11.7.1997 on which date judgment was pronounced whereas in fact the decree-sheet as well as endorsement on the order sheet dated 11.7.1997 were prepared, signed and sealed during the period between the order passed by this Court, calling explanation of the concerned officer and the transmission of the record of the aforesaid appeal to the office of this Court. Whether at least on basis of materials available on record two persons, namely, Shri Mahendra Maheshwari, R.H.J.S. and Durga Ram, L.D.C. who prepared the decree in question, are prima facie involved in the commission of forgery in respect of the Judicial record of the court of Additional District Judge, Nagaur camp at Deedwana. Whether both of them committed forgery in Judicial record when Presiding Officer was already transferred from the court of Additional District & Sessions Judge, Camp at Deedwana, to the court of Additional District & Sessions Judge, Parbatsar, In May 1998 and the object behind the forgery of the Judicial record was to create false evidence to show that the decree in pursuance of the Judgment dated 11.7.1997 had in fact been prepared on the date of the Judgment and no negligence on the part of the presiding officer, namely Shri Mahendra Maheshwari was committed. Whether consequences arising from the omission to prepare the decree-sheet are that the certified copies of the decree-sheet were not supplied to the counsel for the appellant and the respondent in pursuance of their applications dated 11.7.1997 for copies of judgment and decree and the inability on the part of the appellant to file the copy of the decree with the memo of appeal when the second appeal was presented in this Court and further inability on the part of the counsel for the appellant to produce the copy of the decree-sheet in spite of the fact that on more than one occasion time was granted to him to remove defect by filing the copy of the decree. Whether most glaring consequence of omission to prepare the 'decree-sheet in pursuance of the judgment dated 11.7.1997 by the first appellate court was that the second appeal was legally made incompetent and could not be registered and even after the filing of the certified copy of the decree, it is found to be barred by 701 days. Certified copy of the decree-sheet available on record is at best, the certified copy of forged document; whether certified copy of decree-sheet which originates from forged decree can be treated to be a valid decree for the purpose of entertaining the second appeal, within the meaning of Section 100, CPC, read with Order 41, Rule 1, CPC, along with the Rules of the High Court, on the subject. Whether another consequence of the alleged forgery and the false explanation submitted by Shri Mahendra Maheshwari, R.H.J.S. was that on 23.8.1999 the Court was misled into believing that the explanation given by Shri Mahendra Maheshwari was correct, and thus, by his false statement, contained in the explanation submitted by him, Shri Mahendra Maheshwari succeeded in misleading the Court to believe that decree-sheet was prepared and signed by him on 11.7.1997 on which date judgment was pronounced by him and, in consequence, the order accepting his explanation was passed which could not have been passed if forgery of the decree-sheet had not been committed and false explanation had not been given by Shri Mahendra Maheshwari. Whether both of them had fabricated false evidence by committing suppressio veri and suggestio falsi in relation to the proceedings of the Court of Additional District Judge, Nagaur camp at Deedwana during the pendency of the present proceedings before this Court.
35. It is settled principle of law that fraud vitiates the very solemn proceedings of courts of law. A judgment or order if obtained by fraudulent means, such judgment or order deserves to be set aside as soon as the fraud is established and those who commit suppressio veri and suggestio falsi, with the object of misleading the Court, are liable to be regarded guilty of misconduct and falls within the category of committing offence against public justice involving moral turpitude and also committing offences relating to documents given in evidence. I am supported in my conclusion by the judgment delivered by the Full Bench of the Rajasthan High Court in D.B. Civil Special Appeal (Writ) No. 893/98 Dharam Pal Singh v. State and Ors. decided on 10.3.2000. If the allegation that the decree sheet purported to have been prepared on 11.7.1997 in pursuance of the judgment dated 11.7.1997 passed by the Additional Sessions Judge, Nagaur camp Deedwana and connected judicial record, contains false recitals as to the date on which the decree-sheet has been prepared and forgery has been committed in respect of such record and false explanation has been given before this Court are true, there is no reason why this Court should not take necessary action under Section 340 of the Criminal Procedure Code.
36. It is true that under Article 235 of the Constitution of India this Court exercises administrative control over the presiding officers of the subordinate courts and the staff attached to the subordinate courts and disciplinary proceedings may be initiated under Rules 16 and 17 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 against the officers as well as the members of the staff of the subordinate courts if there are allegations that they have committed misconduct. Ordinarily, initiation of disciplinary proceedings under the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 are considered sufficient if the misconduct committed by an officer or a member of the staff of the subordinate court, does not involve any criminal office of a serious nature. In cases where an officer of the subordinate court or a member of the staff is found to have committed, offences of serious nature, against public justice by fabricating the judicial record, during the pendency of judicial proceedings before the court, eroding the credibility of the courts, there is no reason why such officer and a member of staff of subordinate judiciary should be saved from punishment according to the law of the land by restricting action against them to the disciplinary proceedings under Rules 16 and 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958.
37. Forgery of judicial record, particularly those documents which are required to be filed before this Court and submission of false explanation with a view to, mislead the Court into believing in something which did not exist, is the inevitable propensity to pervert the sacred course of justice and is likely to not only occasion grave injustice to the parties, it is also likely to bring the institutions of judiciary into disrepute.
38. A close scrutiny of the original record of appeal No. 32/93 reveals that two sets of different seals of the first appellate court of Nagaur, Camp at Deedwana are affixed on the judgment and decree. One on the judgment pronounced on 11.7.1997 and the other on the decree sheet purported to have been drawn by Shri Durga Ram junior clerk attached to presiding officer and purported to have been signed by the presiding officer of the first appellate court on the date of pronouncement of judgment. Both sets of these seals do not tally with each other. It is apparent on the face of record that the circular seal affixed on the judgment is smaller in shape and size whereas the circular seal affixed on the decree-sheet is bigger in shape and size. The former smaller round seal affixed on the judgment under appeal contain 'Camp Deedwana' which is written in hand, whereas, in decree-sheet, bigger round seal Is affixed wherein 'Camp Court Deedwana' has been inscribed in the seal itself. In every designation seal under the signatures of the Presiding Officer on the judgment dated 11.7.1997 'Camp Deedwana' is written in hand whereas the designation seal affixed at three places on the decree sheet signed by the Presiding Officer 'Shivir Nyayalay Deedwana' has been inscribed in the seal itself.
39. Apart from the apparent dissimilarity in the seals and preliminary enquiry report submitted by learned District Judge Merta dated 30.10.1999 as discussed hereinabove there are some more circumstances leading prima facie to the conclusion that the judicial record of the appeal No. 32/93 has been tampered with. In this respect it is noteworthy that the entire record of this appeal No.' 32/93 has been indexed by numbering all pages in red ink. This indexing naturally has been done at the time of consigning the record to the record room. If the decree sheet at Page No. A 18/1 was there on record at the time of indexing before consigning the record of first appeal No. 32/93 to the record room, in the ordinary course, the indexing on this page would have been with red ink in the same handwriting whereas it is apparent from perusal of Page No. A 18/1 containing the decree sheet that it is numbered with blue ink with different handwriting. It is apparent on the face of record that the words A 18/1 are in different hand writing with different ink than the hand writing of the person who has indexed all the papers of appeal No. 32/93. There are overwriting in the entries pertaining to two copies of applications for certified copies on record at Page Nos. D 19/1 to D 19/2. The indexing itself has been overwritten misleading to the Court to believe that decree sheet was prepared on the date of pronouncement of judgment. There is overwriting at serial No. 18 on the first page of the indexing. In addition to the above, even the flow of signature of the Presiding Officer and pressure of pen in the decree sheet appears to be no similar to the signatures on the judgment under appeal dated 11.7.1997 which indicates that judgment and decree sheet were not signed on the same date. From the pressure of the pen and flow of writing of signatures on the judgment and the other on the decree sheet do not tally which indicates about long interval in signing of the judgment and decree by the Presiding Officer. It is a matter of common knowledge that pressure of pen and flow of writing of signature of a person differs due to interval of time.
40. I have already referred to the oral and circumstantial evidence available in this case. It is not disputed that the judgment in civil first appeal No. 32/93 was delivered at camp Deedwana by Shri Mahendra Maheshwari, R.H.J.S. on 11.7.1997. On that day Moti Lal was working as a Reader. He did not prepare the decree in question. On 11.7.1997, two applications for copies of the judgment as well as decree were submitted before the copying clerk on behalf of the counsel for the appellant and the respondent. In both the applications prayers had been made for supplying the copies of the judgment as well as the decree. Copying fee of Rs. 3.20 was collected from each of the two applicants by the copying section at the rate of 80 paise per page of the photo stat copy. The judgment of the first appellate court runs in four pages. Therefore, copying fee of Rs. 3.20 was collected from each of the two applicants. Photo-stat copies of the judgment dated 11.7.1997 were prepared by the copying section and supplied to the learned Counsel for the appellant and the respondent. The copy of the decree-sheet was not supplied to the applicants. The statement of the copying clerk shows that he sent both the applications to the concerned clerk from copying section on 12.7.1997. Durgaram sent record of first appeal No. 32/93 on 24.7.1997 to copying section. On 24.7.1997, Durga Ram, L.D.C. did not send the decree-sheet to the copying clerk Shri Sanjay. There is no satisfactory explanation as to why the decree-sheet in question was not sent to the copying clerk on or before 24.7.1997 if the decree had already been prepared, signed and sealed on 11.7.1997 as is shown by Shri Mahendra Maheshwari and Shri Durga Ram. It is not in dispute that the appellant did not file the certified copy of the decree with the memo of the second appeal and on several occasions sought time to file copy of the decree-sheet but failed to file the same, It is evident from the order sheet dated 14.5.1999 that on that day. Shri Ranjeet Joshi, Advocate appearing for the appellant stated at the Bar that the trial court as well as the first appellate court had not prepared the decree-sheet in pursuance of judgments delivered by them, and therefore, the defects pointed out by the office could not be removed by him. The order sheet dated 14.5.1999 further shows that explanations were called from the trial court as well as the first appellate court about the preparation of the decree-sheets and the reminders were ordered to be issued by order dated 12.7.1999. The allegation made by Shri Ranjeet Joshi, Advocate at the Bar, during the hearing of the case, does not require any other proof as the statement has been made during the hearing in open court and it has been recorded in the relevant order-sheets. It is evident from the order-sheet dated 12.8.1999 that Shri Mahendra Maheshwari did not submit his explanation upto that day, and therefore, he was directed to remain present in the court on 23.8.1999 with his explanation as to why the decree-sheet was not prepared in pursuance of the judgment dated 11.7.1997 in Civil First Appeal No. 32/93. This fact is borne out by the order-sheets of the Court. The order dated 23.8.1999 shows that on that day Shri Mahendra Maheshwari appeared in the Court and has submitted his explanation in writing and in this explanation he had suppressed the fact that no decree-sheet had been prepared in pursuance of the judgment dated 11.7.1997 and he made a false suggestion to the effect that on perusal of the record he found that the decree-sheet was present in it.
41. The following circumstances lead to an irresistible conclusion that neither decree-sheet was prepared by Durga Ram on 11.7.1997 nor it was signed by Shri Mahendra Maheshwari, R.H.J.S., on the aforesaid date:
(i) The judgment in civil first appeal No. 32/93 was delivered by Shri Mahendra Maheshwari on 11.7.1997 at camp Deedwana;
(ii) Two applications for copies of judgments and the decree had been filed on behalf of the counsel for the appellant and the respondent on 11.7.1997 before the copying clerk Shri Sanjay who handed over both the applications to Shri Durga Ram, L.D.C., incharge of the record and Durga Ram while handing over the record of the appeal to Sanjay on 24.7.1997 did not hand over to him the decree-sheet in question and no explanation whatsoever was given for not giving the decree-sheet to Shri Sanjay if the decree-sheet had already been prepared on 11.7.1997;
(iii) On 24.7.1997 the copying clerk Shri Sanjay, got prepared the photostat copies of four pages of the judgment. He charged Rs. 3.20 at the rate of 80 paise per page from each application and supplied the copies of the judgment dated 11.7.1997 to both the applicants and did not supply the copy of the decree-sheet in question. There is no satisfactory explanation why the copy of the decree-sheet was not supplied by him to the counsel for the appellant and the respondent when in both the applications prayers were made for supplying of the copies of the judgment as well as the decree sheet;
(iv) The judgment dated 11.7.1997 as well as the order-sheet regarding delivery of the judgment were admittedly written, signed and sealed on 11.7.1997. The judgment as well as the order-sheet, bear impressions of seals which were of the Court of Additional District and Sessions Judge, Nagaur. The words 'camp Deedwana' were not inscribed in the seal and therefore, the words 'camp Deedwana' were written in Hindi in the hand writing of some clerk who had affixed impressions of the seals on the judgment and the order-sheet. This circumstance shows that on 11.7.1997, the seals which were available in the office of the Additional District Judge at camp Deedwana were the seals of the Additional District Judge, Nagaur and the seal of Additional District Judge, Nagaur camp at Deedwana were not available on that day which are affixed on the decree-sheet wherein circular seal of the court 'Camp Court Deedwana' and in designation seal 'Shivir Nyayalay Deedwana' are inscribed in those seals itself.
(v) It is evident from the order-sheet of this Court that special messenger was sent to Nagaur and Deedwana to bring the record of civil first appeal No. 32/93. The report shows that he was not given the relevant record at Nagaur office and was instructed to go to Deedwana. When he reached Deedwana, the record was not given to him and he was told that a letter was being sent to Merta and that the record would be sent directly to the High Court and, thus, sufficient time was obtained by not delivering the record to the special messenger;
(vi) The letter of transmission of record, accompanied the record, has been signed by the officer-in-charge, Record Room, Merta on 20.7.1999. The report submitted by Shri Shailesh Kumar Mutha, L.D.C., who was sent as a special messenger to bring the record shows that he reached the court of Additional District Judge, Nagaur on 18.8.1999 at 10.00 a.m. He was told that the file was not available in the office. A letter No. 560 was gent by the Additional District Judge, Nagaur to the officer-in-charge, Record Section, Merta and the copy of the aforesaid letter was given to him and he was further directed to go to Deedwana and obtain the file of the trial court. On the same day, he went to Deedwana and reached there at 2.30 p.m. He obtained the file of the civil suit No. 173/87 and a copy of the letter No. 97 dated 18.8.1999 addressed to the officer-in-charge, Record Room, Merta and the clerk was sent with the original letter to Merta. It is also stated by him that he was directed to return to Jodhpur and was told that the file of the civil first appeal No. 32/93-Bajrang Lal v. Jeet Mal would be sent to the High Court by special messenger. It is also stated by him that he returned to Jodhpur on 19.8.1999 and handed over the copies of the two letters mentioned above to the Civil Section and the file of civil first appeal No. 32/93 was received in this Court on 21.8.1999. The requisition for record was sent on 17.8.1999 and the record had in fact been received in this Court on 21.8.1999.
42. At the cost of repetition, it may be pointed out that by order dated 14.5.1999, it was directed that the explanation be called from the trial court as well as the first appellate court as to why the decree-sheet had not been prepared and, in pursuance of the order dated 14.5.1999, the Deputy Registrar (Judicial) issued letters No. 4653 and 4654 to the Additional District Judge, Nagaur camp Deedwana and Civil Judge (J.D.) and Judicial Magistrate. First Class, Deedwana on 17.5.1999. When the explanations were not received, the Court by order dated 12.7.1999 directed that reminders should be issued and reminders were issued by the Deputy Registrar (Judicial) on 16.7.1999 to the trial court as well as to the first appellate court. In response to the reminder dated 16.7.1999, the Civil Judge (J.D.) and Judicial Magistrate, Deedwana, by his letter No. 100 dated 19.7.1999 informed the Deputy Registrar (Judicial) that civil suit No. 173/87 had been decided on 20.12.1993 and the file of the suit was not available in the court. By letter No. 224 dated 23.7.1999, the Civil Judge (J.D.) and Judicial Magistrate, First Class, Deedwana informed the Deputy Registrar (Judicial) of this court that the file had been requisitioned from the Record Room, Merta and on perusal of the file it was found that decree-sheet had not been prepared in pursuance of the judgment dated 20.12.1993. Since the letters dated 17.5.1999 as well as the reminders dated 16.7.1999 had been issued by the Deputy Registrar (Judicial) on the same day to the court situated at Deedwana and the Civil Judge (J.D.) and Judicial Magistrate, First Class, Deedwana received that letter on or before l9.7.1999 as is evident by his letter dated 19.7.1999, it is proper to infer that the Additional District Judge, Nagaur camp Deedwana must have received the letters sent by the Deputy Registrar (Judicial) on or before 19.7.1999 and the original file of the civil first appeal No. 32/93 was lying at Deedwana in the office of the Additional District Judge in order to submit the explanation ordered by this Court. But the file was neither sent promptly nor the explanation was sent by the Additional District Judge, Nagaur camp Deedwana. When special messenger Shailesh Kumar Mutha was sent on 18.8.1999 to bring the record of civil first appeal No. 32/93, the record was not handed over to him and he was returned with an assurance that the record would be sent by special messenger of District Judgeship of Merta. Thus, from 19.7.1999, the date on which the letters issued by the Deputy Registrar (Judicial) must have been received, and 20.8.1999, the date on which the record of the first appeal was despatched by the officer-in-charge, Record Room, Merta there was about one month's time for committing the alleged forgery.
43. Shri Mahendra Maheshwari submitted his explanation on 23.8.1999. His explanation shows that he had inspected the file of the civil first appeal No. 32/93 before preparing the explanation. The file had been despatched by the officer-in-charge, Record Room, Merta on 20.8.1999. It is, therefore, proper to infer that Shri Mahendra Maheshwari went to Merta on or before 20.8.1999 to inspect the file of civil first appeal No. 32/93 and inspected it. It appears from the letter dated 10.8.1999 sent by the Additional District Judge, Deedwana that the decree in question had been prepared some time before 10.8.1999 because it was available in the file on 10.8.1999 when he sent letter to the Deputy Registrar (Judicial). This letter clearly shows that file of civil first appeal No. 32/93 had been requisitioned by the Additional District Judge, Deedwana or it as lying in his office, on or before 10.8.1999. I have, therefore, no doubt in it that during the period from 19.7.1999 to 10.8.1999 the file of the civil first appeal No. 32/93 was either lying in the office of Additional District Judge, Deedwana or it had been requisitioned from Merta and the alleged forgery had been committed before 10.8.1999.
44. It is pertinent to point out that when the special messenger Shri Shailash Kumar Mutha reached Deedwana, the file of the trial court was handed over to him but the file of the first appellate court was not handed over to him. It is inconceivable that after receiving the letter of the Deputy Registrar (Judicial) calling his explanation, file of the first appeal was returned back to the record room, Merta for innocent reasons.
45. The circumstantial evidence, which is available on record, leads towards an irresistible inference that the decree-sheet in question had been prepared some time between the date on which the letter of the Deputy Registrar (Judicial) calling explanation was received and 10.8.1999, the date on which the Additional District Judge, Deedwana informed the Deputy Registrar (Judicial) that the decree-sheet was in the file and the delay in sending the letter dated 10.8.1999 by the Additional District Judge was caused on account of the preparation of the ante dated decree-sheet by Durga Ram and signing it by Shri Mahendra Maheshwari. The explanation submitted by Shri Mahendra Maheshwari and the statement of Durga Ram do not inspite my confidence.
46. On consideration of all the circumstances of the case, I am of the opinion that it is a fit case in which this Court should direct that a complaint be filed against Shri Mahendra Maheshwari, R.H.J.S. and Durga Ram, L.D.C. for committing, aiding and abetting the commission of forgery by ante dating the decree-sheet and the order-sheet and other relevant records of Civil Appeal No. 32/93 and committing forgery be suppression of material information as well as by giving false suggestions misleading to this Court, to form erroneous opinions in its order dated 23.8.1999, about the date of preparation of decree-sheet, resulting to make the present appeal 701 days barred by limitation, without any fault of the appellant.
47. While passing this order, it may be pointed out that I have considered whether the provisions of Section 197,of the Criminal Procedure Code, 1973 are attracted to this case. In my opinion, the provisions are not attracted. The forgery of judicial record as well as the submission of false explanation are such as are committed by Shri Mahendra Maheshwari, RHJS, after he had been transferred to Parbatsar and had ceased to exercise any jurisdiction in respect of the judicial record of the court of Additional District Judge, Deedwana. Neither the preparation of the decree-sheet nor the submission of his explanation before this Court can, therefore, be regarded as acts performed by him in discharge of his official duties as Additional District Judge, Deedwana. In any case, the act of tampering with the judicial record, preparation of forged documents by ante dating them and perjury committed by submission of false explanation cannot be regarded as such acts as may attract the provisions of Section 197 of the Criminal Procedure Code. I am, therefore, of the opinion that no sanction of His Excellency, the Governor is required for initiating prosecution by filing a complaint under Section 340 of the Criminal Procedure Code, 1973 against the guilty persons, named hereinabove.
48. The aforesaid discussion clearly makes out a case of concealment of truth to this Court marked by duplicity and insincerity towards the appellant making his present second appeal barred by limitation of 701 days and to this Court compelling it to form erroneous opinions in its order dated 23.8.1999. In my humble opinion the acts, omissions and commissions of the Presiding Officer of the first appellate court and junior clerk Shri Durga Ram attached to the office of the presiding officer in the present case are disastrous to the present justice system involving their moral turpitude which call for inquiry to be made into the offences referred to in Clause (b) of Sub-section (1) of Section 195 which prima facie found to be established against them in relation to proceeding of the present second appeal before this Court. For better and deeper understanding of the controversy in this regard the mandatory provisions of Section 340 of Cr. P.C. are reproduced hereinbelow:
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 interest 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, sent 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 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.
(4) In this Section, 'Court' has the same meaning as in Section 195.
49. I am of the view that Section 340 Cr. P.C. is complimentary to Clause (b) of Sub-section (1) of Section 195 Cr. P.C. which prescribes the procedure to be followed in case of complaints by Courts. This Section is attracted only in those cases where the Court is of the opinion that an 'inquiry' should be made into any offence specified under Clause (b) of Sub-section (1) of Section 100 Cr. P.C. The expression 'enquiry' has been defined under Section 2(g) of Cr. P.C, which reads thus:
(g) 'inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
50. In the present case there are overwhelming evidence and circumstances as discussed hereinabove available on record, hence, looking to the facts and circumstances of this case in totality it is not desirable at this stage, for this Court, to give show-cause notices to the persons intended to be proceeded under Section 340 Cr. P.C. The overwhelming evidence and circumstances available on record are sufficient for this Court, to form an opinion that an inquiry should be made by a competent court, into offences specified under Clause (b) of Sub-section (1) of Section 100, Cr. P.C, committed by Mahendra Maheshwari, RHJS and Durga Ram, LDC. I thought it necessary to have a preliminary inquiry by learned District Judge, Merta, who has submitted his detailed fact finding report dated 30.10.1999, pointing towards the guilt of the persons intended to be proceeded under Section 340, Cr. P.C.
51. There is yet another reason to arrive at the aforesaid conclusion to the effect that at this stage it is not desirable to give show-cause notices to the persons intended to be proceeded under Section 340, Cr. P.C. In the present case Shri Mahendra Maheshwari, RHJS, was given opportunity by calling his explanation as to why decree-sheet was not prepared in pursuant to his judgment dated 11.7.1999, in Civil First Appeal No. 32/93. Shri Maheshwari has already submitted his explanation about preparation of decree-sheet in Civil First Appeal No. 32/93. which is found to be false and misleading for the detailed reasons discussed in the preceding paragraph of this order. As regards Durga Ram, LDC, he was also given opportunity by learned District Judge, Merta, to explain his stand relating to forgery in preparing decree-sheet in Civil Appeal No. 32/93, while conducting preliminary inquiry. The statement of Shri Durga Ram, LDC, is found to be beyond reconciliation of documentary evidence Annexures 3 to 9, submitted by learned District Judge, Merta, along with his fact finding report dated 30.10.1999. The statement of Shri Durga Ram is inconsistent with statement of copying clerk, Shri Sanjay, recorded by learned District Judge, Merta, during preliminary inquiry. For the aforesaid reasons and also for the reasons discussed hereinabove in the preceding paragraphs, of this order, the statement of Shri Durga Ram does not inspire any confidence and it is hereby disbelieved and held to be false. In such a situation, in the case on hand, I do not think it proper to stretch the doctrine of principle of natural justice, to such an extent by giving show-cause notices to the persons intended to be proceeded under Section 340, Cr. P.C, at this stage. In the facts and circumstances of the case, if second time show-cause notices are given to the persons intended to be proceeded under Section 340, Cr. P.C., then, the doctrine of principle of natural justice would be converted into doctrine of principle of unnatural justice. I am of the view that doctrine of principle of natural justice is not cast-iron principle, but its extendibility depends on the facts and circumstances of each case.
52. The aforesaid point to give show-cause notices to the persons intended to be proceeded under Section 340, Cr. P.C., at this stage, can be viewed on different angle. The principle of natural justice for investigation, inquiry and trial an encoded under Cr. P.C., Therefore, it would be proper to put a glance on the relevant provisions in this regard. Under Sub-section (1) of Section 340, Cr. P.C., it is provided that when on an application made to court in this behalf or otherwise, any court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 100, Cr. P.C., 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, may after such preliminary inquiry, if any, as it thinks necessary, record a finding to the effect and make a complaint thereof, in writing to a Magistrate of the First Class having jurisdiction. The expression 'inquiry' used under Sub-section (1) of Section 340, Cr. P.C., is defined under Section 2(g) of the said Act, which means every inquiry other than a trial conducted under the Code of Criminal Procedure, by a Magistrate or court. The expression 'trial' has not been defined under Section 2 of Cr. P.C., for obvious reason because it is not humanly possible to include all principles of natural justice, which are required to be followed for fair trial of an accused for the offence (s) committed by him. In order to avoid any prejudice to an accused and to provide him a fair trial, Parliament has enacted detailed procedure under Chapter-XVIII (Trial Before Court of Session); Chapter-XIX (Trial of Warrant Cases by Magistrate); Chapter-XX (Trial of Summons Cases by Magistrate); and Chapter-XXI (Summary Trials), depending upon the gravity of an offence and punishment provided thereunder. Parliament, in its anxiety to ensure a fair trial to an accused has enacted Chapter XXIII (Evidence in Inquiries and Trials) and Chapter-XXIV (General Provisions to Inquiries and Trials). It is to be noticed that rigour of procedure of corresponding old law of Section 476(1) and 476-A and Section 476-B under old Cr. P.C. had been replaced by substituting simple procedure under Section 340, Cr. P.C. and Section 341, Cr. P.C, precluding appeal against an order passed by High Court either refusing to lodge a complaint or directing to lodge a complaint under Section 340, Cr. P.C. It is also to be noticed that prior to inquiry and trial, there is one initial stage, which is popularly known as investigation. The term 'investigation' has been defined under Section 2(h) of Criminal Procedure Code, 1973, which includes all the proceedings under Cr. P.C, for the collection of evidence conducted by a police officer or any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. All of us know that no opportunity of hearing is provided to an accused during course of an investigation of an offence (s).
53. A conjoint reading of Section 2(g), wherein, expression 'inquiry' is defined, Section 2(h), wherein, 'investigation' is defined and Section 340, Cr. P.C., where it is provided that if any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence, referred to in Clause (b) of Sub-section (1) of Section 195, Cr. P.C., which appears to have committed reveal that after lodging of a complaint in writing before a Magistrate of the First Class having jurisdiction, the Magistrate is to make an inquiry within the meaning of Section 2(g) of the Act, in accordance with law and not trial of the complaint. The question of trial of complaint in accordance with the procedure prescribed under Cr. P.C. comes later on after completion of inquiry by Magistrate. The object of the opinion of the court to the effect that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, Cr. P.C. which the person or persons, as the case may be appears to the court to have been committed by him/them are meant for taking cognizance by courts of law which is otherwise forbidden under Section 195 of the said Act. The findings of the court on the aforesaid points before lodging complaints under Section 340, Cr. P.C, make the courts entitled to take cognizance of the offences against public justice and offences relating to documents given in evidence. Another object of formation of opinion by a court before lodging complaint under Section 340, Cr. P.C, against a person, is to see and ensure that such opinion of court should not be based on gossip, rumour and hunch, but it must be based on tangible evidence available on each case.
54. From the discussion made hereinabove, in my humble opinion, expression of opinion by a court that it is expedient in the interest of justice to make inquiry into an offence against public justice and for offence relating to documents given in evidence and a finding thereon that such offences appear to have been committed, by an accused is analogous to an 'investigation' to avoid frivolous and false inquiry by a First Class Magistrate, under Section 340, Cr. P.C, to harass an accused, although, it does not fall within the ambit of 'investigation' as defined under Section 2(h) of Cr. P.C. I am of the view that as an accused is not given an opportunity of hearing during investigation, similarly, it is not desirable to give an opportunity of hearing to an accused at the time of holding preliminary enquiry or at the time of expressing opinion for holding inquiry under Section 340, Cr. P.C. by a First Class Magistrate, for the offence under Clause (b) of Sub-section (1) of Section 195. Cr. P.C, nor at the time of recording finding that accused appears to have committed offence against public justice and offences relating to documents given in evidence.
55. The question is whether the present justice system can afford a judicial officer and a junior clerk attached to his office to pollute the fountain of justice by their acts, omissions and commissions of this magnitude leading to an offence against public justice and for offences relating to documents given in evidence during the pendency of the present second appeal. Whether judicial integrity and honesty should be preserved by this Court for fair dispensation. of justice based on truth and fair-play. I suspect that if such type of acts, omissions and commissions as have been established in the present case are allowed to go by, the occasions of unfairness, deceit and baselessness will rise slowing down the real dispensation of justice based on truth and fair-play between the parties. This Court cannot afforded to ignore the low trust climate climbed up in the present case by a judicial officer and a junior clerk attached to his office by tampering the judicial record during the pendency of the instant second appeal before this Court. To my mind, for a judicial officer and a person attached to his office, focus must be first, on primary greatness of character, integrity and honesty. This Court under Article 235 of the Constitution is expected to keep guard over the subordinate judiciary and its members of staff within its domain. While it is imperative for this Court to protect honest and truthful judicial officers and members of staff against ill-conceived or motivated complaints it is the most sacred duty of this Court not to allowed any untruthful performance by any member of the subordinate judiciary or its member of staff leading to moral turpitude to go unpunished against the spirit of the law of land and against the doctrine of supremacy of rule of law. I am of the view that the judicial officers and its member of staff are holding public officers of trust and responsibility which cannot be allowed to be eroded at any cost.
56. This Court is conscious of the fact that under Section 340, Cr. P.C., the expression 'interest of justice used is not the same as the expression used under the said section 'expedient in the interest of justice. This Court is required to be satisfied before directing to lodge a complaint under Section 340, Cr. P.C. that doing so is 'expedient in the interest of justice. Merely serving the cause of justice would not partake the shape so as to attract the provisions of Section 340, Cr. P.C. The object of Clause (b) of Sub-section (1) of Section 195 and Section 340, Cr. P.C. is to arrest offences in relation to a proceeding in the Court where the Court taking into account relevant facts and circumstances comes to a conclusion that doing so is in larger interest of administration of justice. This power is not vested in courts to gratify the feelings of personal revenge or vindictiveness or to serve the ends of a private party. Forgery in judicial records during pendency of appeal/revision or any other court's proceedings in higher courts, is a very serious matter. To arrest such offences the courts of law are required to evolve the principle of zero tolerance, otherwise it would lead to infinite tolerance polluting the fountain of administration of justice. The expression 'in relation to any proceeding in any court' used under Section 340, Cr. P.C, must be interpreted in relation to court's proceedings. The aforesaid words are general but are wide enough to cover the proceedings in contemplation before a civil or criminal courts though it may not have begun on the date when the offence was committed. These words should not be considered narrowly and offence which is committed in or in relation of any proceeding in the trial court or in first appellate court, is to be held to be committed in relation to higher courts in second appeal too. In the present case, as the offence is of considerable gravity it would unreasonable to take a view that lodging of the complaint would not be expedient in the interest of justice.
57. The next question which this Court is called upon to decide is whether the appellant should be saddled with the acts omissions and commissions of the presiding officer of the Court, forging the record of first appeal No. 32/93 in collusion with Durga Ram, LDC and trying to mislead the court that the decree was prepared on the date of the pronouncement of the judgment on 11.7.1997. I am of the view that in such extraordinary facts and circumstances, the delay of 701 days in filing appeal is not attributable to the appellant. The appellant cannot be penalised for the delay in filing the decree, computing the limitation from the date of preparation of decree w.e.f. 11.7.1997 as envisaged under Section 12 of the Limitation Act 1963. The residuary power under Section 151 CPC is meant to do justice between the parties for which alone the courts of law exist. The delay in filing the decree in the present case deserves to be condoned under Section 5 of the Limitation Act, read with Section 151 CPC and Article 25 of the Constitution where there is no limitation prescribed to keep the record straight. In the present case I would like to press into service the provisions made under Section 151 CPC which provides that nothing in the Code of Civil Procedure shall be deemed to limit or otherwise affect such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The courts therefore in those cases where circumstances require are to act ex debito justices to advance real justice between the parties based or truth.
As a result of aforementioned discussion, the order dated 23.8.1999 qua the Presiding Officer of the learned trial court, is maintained and the rest of the order is hereby recalled with a direction to Registrar General to lodge a complaint against the Presiding Officer of first appellate court, namely, Shri Mahendra Maheshwari, RHJS and against Durga Ram, LDC, under Section 340 Cr. P.C. before a competent court to inquire and proceed to prosecute the aforesaid persons, for the offences committed by them under Sections 190 and 191 IPC punishable under Section 193 IPC, for offences under Sections 463, 464 punishable under Section 465 IPC, for offences under Sections 471, 472, 473 and 474, IPC, or for any other offence in accordance with law.
For the reasons discussed hereinabove the application moved under Section 5 of the Indian Limitation Act is allowed and delay of 701 days in filing the present second appeal computing limitation from the date of preparation of decree dated 11.7.1997 is condoned under Section 5 of the Limitation Act, read with Section 151 CPC and under Article 215 of the Constitution of India.
Office is to list this appeal for admission before appropriate Bench entertaining second appeals after giving a regular number to it. The record of first appeal No. 32/93. D.O. letter dated 11.10.1999 written to learned District Judge Merta and preliminary inquiry report dated 30.10.1999 submitted by him together with statements of Shri Om Prakash Moth, Shri Ram Gopal, Shri Durga Ram, Shri Govind, Shri Moti Lal and Shri Sanjay along with Annexures 1 to 13 annexure with the said report be kept in sealed envelope in the custody of Deputy Registrar (Judicial). The Bench hearing the appeal either at admission stage or at any subsequent stage, would be free to open the sealed envelope whenever and wherever it considers necessary otherwise these records shall be preserved for inquiry and trial by competent court under Section 340 Cr. P.C. The Deputy Registrar (Judicial) is to inform the learned District Judge Merta to preserve the Register No. 9, Register No. 11, Register No. 14, Register of perishable materials of the relevant date kept at Merta Judgeship describing the entries of seals made available to the Presiding Officer of first appellate court of appeal No. 32/93 with special care and caution of entries dated 2.1.1993 and entries dated 23.10.1999 with specimen seals made available to the presiding officer and original records of Annex, 1 to 13 annexed with the preliminary report dated 30.10.1999, or any other and further record which learned District Judge, Merta deems fit and proper, to preserve for inquiry and trial of the case on hand under Section 340, Cr. P.C.