Manipur High Court
+05'30' vs Shri Yengkhom Surchandra Singh on 6 June, 2022
Author: Mv Muralidaran
Bench: Mv Muralidaran
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IN THE HIGH COURT OF MANIPUR
AT IMPHAL
SHAMURAILATP M.C. (El. Pet.) No. 24 of 2020
Ref.:- Election Petition No. 1 of 2017
AM SUSHIL
SHARMA Shri Mayanglambam Rameshwar Singh, aged about 50
Digitally signed by years, S/O M. Aber Singh, resident of Makha Lou, Kakching
SHAMURAILATPAM Khullen, P.O. & P.S. Kakching, District Kakching, Manipur
SUSHIL SHARMA
- 795103.
Date: 2022.07.08 15:06:06
+05'30' ....... Applicant/Petitioner
-Versus-
Shri Yengkhom Surchandra Singh, aged about 67 years,
S/O Late Y. Yaima Singh, resident of Kakching Turel
Wangma, P.O. & P.S. Kakching, District Kakching, Manipur
- 795103.
........ O.P./Respondent
BEFORE HON'BLE MR. JUSTICE MV MURALIDARAN For the Petitioner ∷ Mr. Devendra Sharma, Advocate For the Respondent ∷ Mr. H.S. Paonam, Sr. Advocate Dates of Hearing ∷ 05.04.2022 and 25.04.2022 Date of Reserving Judgment & Order :: 25.04.2022 Date of Judgment & Order ∷ 06.06.2022 M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
2|Page JUDGMENT AND ORDER (CAV) This application has been filed by the applicant under Section 340 read with Section 195 Cr.P.C. praying for holding an inquiry against the respondent for giving false evidence/statement while giving statement on oath before this Court in Election Petition No.1 of 2017.
2. Heard Mr.Devendra Sharma, learned counsel for the applicant; Mr.H.S.Paonam, learned senior counsel, assisted by Mr.S.Gunabanta Singh, learned counsel for the respondent.
3. The applicant is the election petitioner and the Respondent herein is the Respondent No. 1 in Election Petition No.1 of 2017. By the judgment dated 5.11.2020, the said election petition was allowed.
4. The grievance of the applicant in this miscellaneous application is that while giving evidence during trial of the Election Petition, the respondent has intentionally made false statement to prove that the respondent is still in the party of Indian National Congress (INC) in spite of having taken admission to Bharatiya Janata Party (BJP); knowingly used false evidence as genuine evidence and knowingly used pleadings containing false statement as true, which are the offences punishable under Sections 191, 196 and 200 IPC. According to the applicant, the respondent has made the pleading/statement knowing well M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
3|Page that the said pleading/statement is false. Hence, the applicant has filed the instant application.
5. Resisting the application, the respondent filed affidavit-in- opposition stating that the present application is not maintainable, as the same has been filed on the assumption that an election case was pending before the Hon'ble Speaker, Manipur Legislative Assembly against the respondent at the relevant point of time of giving statement on oath in the Election Petition. It is stated that the respondent has given statement on oath that there is no election case pending before the Hon'ble Speaker and what was pending before the Hon'ble Speaker is an application filed by MLA Thaisii against the respondent under Article 192(2) of the Constitution of India read with the Rules of the Members of the Manipur Legislative Assembly (Disqualification on the ground of Defection) Rules, 1986. It is stated that the said application does not pertain to the election of the respondent to the Manipur Legislative Assembly, however, it relates to the disqualification from being a Member of the Legislative Assembly on the ground of defection. It is also stated that the respondent was disqualified by the Hon'ble Speaker, which was also affirmed by this Court. As against the order of this Court, an appeal has been filed before the Hon'ble Apex Court and the Hon'ble Apex Court set aside the order of this Court. Since the present application has been M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
4|Page filed on the wrong misunderstanding of facts and law, the same is liable to be dismissed.
6. Mr. Devendra Sharma, the learned counsel for the applicant submitted that the respondent during his cross-examination as D.W.1 in the Election Petition has given a false statement on oath that no complaint or petition pending against him before the Hon'ble Speaker of Manipur Legislative Assembly pertaining to the year 2017. The learned counsel submitted that as per the records of the Hon'ble Speaker, there were two complaints/petitions pending against the respondent pertaining to the election of the 11th Manipur Legislative Assembly Election held in the year 2017.
7. The learned counsel further submitted that on 20.11.2019 during cross-examination of D.W.1, he had given categorical statement as "I deny" when the respondent was asked as "Do you agree that today i.e. 20th November, 2019, you are member of BJP". According to the learned counsel for the applicant, after election as Member of the Legislative Assembly from 37-Kakching Assembly Constituency, the respondent has joined as a member of the BJP on 28.4.2017 along with three other INC MLAs, leaving that party. The said news was also widely circulated by the local dailies and social media without any denial or contradiction from the respondent.
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
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8. The learned counsel for the applicant then submitted that the respondent is still an active member of BJP and he has been elected as State Council Member of BJP, Manipur on consensus for the term 2018-2021 and the General Secretary of BJP Manipur had also issued declaration, wherein the name of the respondent found place at Serial No.2 of Kakching District. Since the respondent has already joined in BJP party by giving up his original party INC, the Disqualification Case No.14 filed by Thaisii against the respondent was disposed of on 18.6.2020.
9. The learned counsel next submitted that during cross- examination of D.W.1 on 13.11.2019, when the applicant's side posed a question as "Have you ever faced any departmental or vigilance or CBI enquiry during your service in the Government of Manipur", the respondent answered as "I don't remember that I have ever faced any departmental or vigilance or CBI enquiry during my service in the Government of Manipur".
10. The learned counsel urged that in fact the respondent while discharging his duty as District Magistrate, Imphal West had issued Detention Orders on 17.7.2006 under the National Security Act, 1980 for four detenu. Assailing the detention order, one Thounaojam Romen filed writ petition before the Gauhati High Court. By the order dated M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
6|Page 5.12.2006, the writ petition was disposed of with certain directions and in compliance of the order, the CBI had conducted an inquiry and filed final report on 11.9.2007. Since the respondent has given false evidence during cross-examination in the election petition, the petitioner prays for holding of an enquiry against the respondent and to make a complaint in writing and sent it to the Magistrate of the First Class of any appropriate authority. In support, the learned counsel placed reliance upon the following decisions:
(i) Re: Suo Motu Proceedings against
R.Karuppan, Advocate, (2001) 5 SCC 289.
(ii) Iqbal Singh Marwah and another v. Meenakshi
Marwah and another, (2005) 4 SCC 370.
(iii) Wazir Singh v. Kulwant Singh, 1997 SCC
OnLine P & H 1084.
11. Per contra, Mr. H.S. Paonam, learned senior counsel for the respondent submitted that the respondent has never given false evidence before this Court in the Election Petition. In fact, a petition was filed against the respondent pertaining to the complaint for disqualifying him from being Member of Legislative Assembly. However, no written complaint was filed. He would submit that the petitioner is trying to misinterpret the statement of the respondent. M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
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12. According to the learned senior counsel, the respondent was elected as an INC candidate and he was neither expelled for INC party nor had resigned from that party. The respondent was in opposition Bench in the Assembly sessions of Manipur Legislative Assembly.
13. Learned senior counsel urged that the applicant should have produced and shown relevant documents to the witness to re- collect his memory and cross-examine him, but he did not do so. According to the learned senior counsel, when a witness gave his evidence that he cannot remember a particular incident, it would not amount to giving false evidence.
14. The learned senior counsel submitted that the respondent had given his statement during cross-examination denying the suggestion of the applicant that on 20.11.2019 the respondent is a member of BJP. The respondent states that he was elected as an INC candidate and he was neither expelled from INC party nor had resigned from that party. In fact, the applicant is trying to misinterpret the answer of the respondent about his state of mind that he did not remember as giving false evidence. Further, the applicant has failed to produce and shown relevant documents to the witness to re-collect his memory and cross-examine him and that when a witness gave his evidence that he cannot remember a particular incident, he does not give a false evidence. M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
8|Page Therefore, there is no prima facie case attracting the provision of Section 340 Cr.P.C. and only in order to harass the respondent, the instant application has been filed.
15. This Court considered the rival submissions and also perused the materials available on record.
16. The point that arises for consideration is whether the respondent has given false evidence during the cross-examination in Election Petition No.1 of 2017.
17. There is no quarrel that once it is found that the respondent has given false evidence, the issue can be ascertained only after completion of proper enquiry as per the law that too after the order/direction of this Court and if the respondent has not given any false evidence, then, he will be discharged from the charges made by the applicant in the application.
18. According to the applicant, there is enough evidence with respect of false evidence and false statement made by the respondent, which could easily be discerned from the documents presented before this Court by the applicant and also could be seen from various pleadings in reference to the main Election Petition, particularly, the examination in chief and cross-examination. The further plea of the applicant in this M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
9|Page application is that he is very much surprised to know from the defence pleading of the respondent that he is not defending his case. However, on the contrary, he is alleging against the court in scandalous manner undermining the sanctity of the court. In view of the above, let us consider this instant application in the following manner.
19. The applicant has filed the present application on the following grounds:
(a) On 13.11.2019 during the cross-examination in Election Petition No.1 of 2017, the respondent has given the statement that no complaint or petition against him was pending before the Hon'ble Speaker of Manipur Assembly pertaining to the year 2017 election as reply to the question "Is there any complaint or petition pending against you before the Hon'ble Speaker of Manipur Legislative Assembly pertaining to the year 2017 election?" put to him.
(b) On 13.11.2019 during cross-examination D.W.1, when a question "Have you ever faced any departmental or vigilance or CBI enquiry during your service in the Government of Manipur" was posed, the respondent has given answer given that "I don't M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 10 | P a g e remember that I have ever faced any departmental or vigilance or CBI enquiry during my service in the Government of Manipur".
(c) On 20.11.2019 during cross-examination, the respondent denied when the respondent was asked as "Do you agree that today i.e. 20th of November, 2019, you are member of BJP".
20. As far as the first ground is concerned, the learned counsel for the applicant submitted that there were two complaints pending against the respondent before the Hon'ble Speaker qua the election of 11th Manipur Assembly Constituency election held in the year 2017.
21. The learned senior counsel for the respondent submitted that a petition against the respondent pertaining to complaint for disqualifying him from being Member of the Legislative Assembly was filed before the Hon'ble Speaker by one DD Thaisii, but no complaint pertaining to his election was filed and thus the applicant is trying to misinterpret the said statement of the respondent before this Court to make that the respondent has given a false statement.
22. On a perusal of the vakalat filed before the Hon'ble Speaker appended to the present application, this Court finds that after the receipt of notice in Disqualification Case No.14 of 2019, the respondent through M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 11 | P a g e his advocate, has entered appearance on 24.7.2019. The date of cross- examination is on 13.11.2019. Thus, as rightly argued by learned counsel for the applicant, before giving his evidence on 13.11.2019 in the Election Petition, the respondent had knowledge about the disqualification case filed by DD Thaisi before the Hon'ble Speaker. The aforesaid, thus, proves that the respondent has given false evidence qua filing of complaint against him before the Hon'ble Speaker. Though the learned senior counsel for the respondent contended that ultimately the disqualification case was decided by the Hon'ble Apex Court in favour of the respondent, the fact remains that at the time of giving evidence in the Election Petition disqualification case was pending against him. Thus, the evidence/statement of the respondent that no complaint/petition was pending against him before the Hon'ble Speaker is apparently false.
23. Coming to the second ground, the learned counsel for the applicant submitted that while the respondent was discharging his duty as the District Magistrate, Imphal West, he had issued forged detention orders dated 17.7.2006 under the National Security Act for four detenus. When challenge to the detention order was made by the accused, this Court found patent illegalities in issuing the detention order and, accordingly, directed CBI inquiry. After conducting enquiry, the CBI has also filed its final report concluding that the respondent was guilty of the allegation levelled against him.
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 12 | P a g e
24. Countering the argument of learned counsel for the applicant, the learned senior counsel submitted that when a question was posed to the respondent as "Have you ever faced any departmental or vigilance or CBI enquiry during your service in the Government of Manipur", the respondent has simply stated as "I don't remember that I have ever faced any departmental or vigilance or CBI enquiry during my service in the Government of Manipur". The learned senior counsel contended that the respondent is an aged person and the ground pertaining to issuance of the detention order under the National Security Act happened long time back and it was done under the capacity of District Magistrate, Imphal West.
25. On a perusal of the material produced by the applicant, it is clear that while the respondent was working as District Magistrate, Imphal West, he had issued detention order dated 17.7.2006 and challenging the detention order, the accused Thounaojam Romen Singh filed Writ Petition (Crl) No.49 of 2006 before the Gauhati High Court. While the writ petition was disposed of by the Gauhati High Court on 05.12.2006, the Court had directed to hold an enquiry against the District Magistrate, Imphal West (the respondent herein) for fabrication of evidence for the purpose of sustaining the detention order. Thus, it is clear that on the crucial date the respondent was facing CBI enquiry. However, contrary to the factual position, the respondent has given his M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 13 | P a g e answer to the effect that "he don't remember that he ever faced any departmental or vigilance or CBI enquiry during his service in the Government of Manipur". The aforesaid would clearly establish that the respondent has given false evidence during his cross-examination in the Election Petition qua facing of departmental/vigilance/CBI enquiry.
26. As far as the third ground is concerned, the learned counsel for the respondent submitted that during his cross-examination in the Election Petition on 20.11.2019, when he was asked "Do you agree that today i.e. 20th of November, 2019, you are member of BJP", he simply denied. The learned counsel for the applicant further submitted that the respondent has falsely stated in his evidence that he was not a member of BJP. In support, the learned counsel for the applicant has drawn the attention of this Court to the membership application of the respondent annexed to the application and also the photographs.
27. Refuting the argument of the learned counsel for the applicant, the learned senior counsel for the respondent submitted that all allegations made by the applicant are hearsay as his allegation are all based on newspaper report. He would submit that the newspaper reports are inadmissible in the eye of law and, as such, the allegation of giving up of his original party i.e. INC cannot be accepted. In support, the learned senior counsel has placed reliance upon the decisions of the M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 14 | P a g e Hon'ble Supreme Court in the cases of Quamarul Islam v. S.K.Kanta and others, 1994 Supp (3) SCC 5 and Laxmi Raj Shetty and another v. State of Tamil Nadu, (1988) 3 SCC 319.
28. On a perusal of Annexures P7 and P8 filed along with the instant application, it is clear that the respondent is an active member of BJP party even during April, 2017 and he had also involved in the organization work of the BJP party and had participated the District Executive Committee Meeting at BJP office, Kakching. No contra document has been produced to show that the respondent is not an active member of BJP party and he has not been elected as State Council Member of BJP, Manipur on consensus for the term 2018-2021 as alleged by the applicant.
29. It is to be noted that since the respondent has joined BJP by giving up his original party INC, the Disqualification Case No.14 was filed by DD Thaisii against the respondent before the Hon'ble Speaker's Tribunal and the same was considered by the Hon'ble Speaker's Tribunal and disposed of on 18.6.2020. The operative portion of the order dated 18.6.2020 reads thus:
"15. Having considered the rival pleadings and the materials available in the present case as well as the decisions of the Hon'ble Supreme Court of India which M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 15 | P a g e are applicable in the facts and circumstances of the present case, it is established beyond doubt that there are materials for presuming that the respondent had voluntarily given up the membership of INC. Hence, this Tribunal came to the conclusion that the respondent had clearly violated the provision of the Tenth Schedule of the Constitution of India and is liable to be punished as per the provisions of the Constitution to uphold the dignity of democracy and the mandate of the people. I, therefore, hold that the respondent Shri Yengkhom Surchandra Singh, Member of the Manipur Legislative Assembly, 37- Kakching Assembly Constituency, Manipur had incurred disqualification for being a member of the Manipur Legislative Assembly in terms of Paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India read with Article 19(2) of the Constitution of India. The respondent, thus, ceases to be a Member of the Manipur Legislative Assembly with immediate effect till the expiry of the term of this Assembly, i.e. 11th Legislative Assembly of Manipur."
30. Thus, the applicant has clearly proved that on the crucial date i.e. while giving statement on 20.11.2019, the respondent was an active member of BJP party. Further, the respondent was legally bound by an oath. However, in the instant case, as stated supra, while giving his evidence in the Election Petition on oath, he has intentionally given a false evidence before this Court.
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 16 | P a g e
31. In view of the answer arrived at to the point framed by this Court that the respondent while deposing has given false evidence, it is essential to extract the provisions of Sections 340 and 195 Cr.P.C. as also Sections 191, 192 and 193 IPC, which read thus:
"340. Procedure in cases mentioned in section 195.--
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 17 | P a g e 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 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.
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.--(1) No Court shall take cognizance-- (a) (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;
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 18 | P a g e
(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), 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 M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 19 | P a g e 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 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.
"191. Giving false evidence.- Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.- A statement is within the meaning of this section, whether it is made verbally or otherwise.
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)
20 | P a g e Explanation 2.- A false statement as to the belief of the person attesting is within a meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
192. Fabricating false evidence.- Whoever causes any circumstance to exist or [makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement], intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence".
193. Punishment for false evidence.- Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of 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 M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 21 | P a g e intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1.-A trial before a Court- martial; is judicial proceeding.
Explanation 2.- An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice."
32. On a careful perusal of the above provisions, it is clear that whoever, legally bound by oath to state the truth or to make a declaration upon any subject, makes any statement which is false and which he either knows or believes to be false or does not believe to be true, it is said to be false evidence. Explanation-1 is important that a false statement is within the meaning of this Section, whether it is made verbally or otherwise. On perusal of Section 193 of IPC, it is seen that whoever intentionally gives evidence 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.
33. In order to understand the definition of judicial proceeding, it is relevant to extract Section 2(i) of Cr.P.C., which reads as under:
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 22 | P a g e "judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath."
34. In order to further understand the definition of evidence, Section 3 of the Evidence Act, 1872 is reproduced under:
"Evidence means and includes - (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. (ii) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."
35. On a reading of the aforesaid provisions, it can be clearly understood that whenever a person gives a statement or evidence before the Court, he is duty bound to state the truth and in case, he makes a false statement knowing fully well that such a statement which he is making is false, then he would be liable for prosecution under Section 193 of IPC.
36. The Legislature's intent in incorporating Sections 191 to 193 IPC was to curb malice of making false statement on oath before the Court and producing false document which would erode efficacy and administration of judicial system. In order to curb such event, these provisions are put into the Code.
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 23 | P a g e
37. It is not in dispute that the respondent has given a false statement as narrated above. It is also not in dispute that the respondent stepped into witness box to adduce evidence nearly two years later and deposed and defended the Election Petition. Once the respondent stepped into witness box, he has to state the truth only.
38. In our country, the judicial system provides justice to people. The Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The Courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the Court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts production of material documents and witnesses.
39. It is also high time that the public who come to give evidence before the Court in any judicial proceedings understand the seriousness of the statements made before the Court and understand purity of the proceedings before the Court. The purity of proceedings of the Court cannot be permitted to be sullied by a party on frivolous, M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 24 | P a g e vexatious and insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy and without any fear of consequences arising therefrom.
40. The respondent stepped into the witness box in a judicial proceeding to give evidence. It is presumed that the evidence given standing in the witness box in the judicial proceeding before the Court is a truthful statement and not any false statement. The evidence is contemplated under Section 3 of the Evidence Act, which includes both oral and documentary evidence. Any document that is produced before the Court comes within the definition of the documentary evidence. Any oral statement made before the Court on oath comes within the definition of oral evidence. Therefore, any statement that is made on oath or any adjudication of document produced before the Court in a judicial proceeding ought to be made by the person truthfully without any malice aforethought or ulterior motive. Therefore, Sections 191 and 193 of IPC clearly state that when a person gives false evidence in any stage of judicial proceeding, he shall be punished with imprisonment stated therein.
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 25 | P a g e
41. The Hon'ble Supreme Court in a catena of judgments has laid down that if it is established that the deponent has intentionally given a false statement in any stage of the judicial proceeding or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding and further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice. As stated supra in the previous paragraphs, it is no doubt that while deposing before this Court in the judicial proceedings i.e. in the Election Petition, the respondent has deliberately made a false statement/evidence only with clear intention.
42. It is also well settled mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code; but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the Court has to form an opinion that it is expedient in the interests of justice to initiate an enquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the Cr.P.C., having regard to the overall factual matrix as well as the probable consequences of such a prosecution. [See K.T.M.S.Mohd. and Another v. Union of India (1992) M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 26 | P a g e 3 SCC 1978]. The Court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.
43. In Re: Suo Motu Proceedings against R.Karuppan, Advocate, (2001) 5 SCC 289, the Apex Court held:
"15. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Penal Code, 1860, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the courts despite taking oath make false statements to suit the interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let loose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take an evasive recourse despite proof of the commission of the offence under Chapter XI of the Penal Code, 1860. If the system is to survive, effective action is the need of the time. The present case is no exception M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 27 | P a g e to the general practice being followed by many of the litigants in the country.
16. Keeping in view the facts and circumstances of this case, the record of proceedings in Suo Motu Contempt Petition (Criminal) No. 5 of 2000 and Writ Petition No. 77 of 2001, we are prima facie satisfied that the respondent herein, in his affidavit filed in support of the writ petition (for the purposes of being used in the judicial proceedings i.e. writ petition), has wrongly made a statement that the age of Dr Justice A.S. Anand has not been determined by the President of India in terms of Article 217 of the Constitution. We are satisfied that such a statement supported by an affidavit of the respondent was known to him to be false, which he believed to be false and/or at least did not believe to be true. It is not disputed that an affidavit is evidence within the meaning of Section 191 of the Penal Code, 1860 and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition is prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under Section 191 IPC, punishable under Section 193 IPC.
17. With the object of eradicating the evil of perjury, we empower the Registrar General of this Court to depute an officer of the rank of Deputy Registrar or above of the Court to file a complaint under Section 193 of the Penal M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 28 | P a g e Code, 1860 against the respondent herein, before a Magistrate of competent jurisdiction at Delhi. Such officer is directed to file such complaint and take all steps necessary for prosecuting the complaint."
44. In Iqbal Singh Marwah and another v. Meenakshi Marwah and another, (2005) 4 SCC 370, the Hon'ble Apex Court held:
"33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh [(1998) 2 SCC 493 :
1998 SCC (Cri) 660] has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.
34. In the present case, the Will has been produced in the court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge.
Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 29 | P a g e the High Court is perfectly correct and calls for no interference.
35. The appeal is, accordingly, dismissed.
36. This appeal has been preferred by the complainant against the judgment and order dated 6-2-1998 of the Madras High Court by which the criminal revision petition preferred by the second respondent Ramaraj was allowed and he was acquitted of the charges under Sections 467 and 471 IPC on the ground that in view of the bar created by Section 195(1)(b)(ii) CrPC, the learned Magistrate could not have taken cognizance on the police report. According to the case of the prosecution, the sale deed had been forged earlier and thereafter the same was filed in the civil court. For the reasons already discussed, the appeal is allowed and the judgment of the High Court is set aside. The criminal revision petition filed by the second respondent shall be heard and decided by the High Court afresh and in accordance with law.
37. The High Court in the impugned order dismissed the petition filed by the appellant under Section 482 CrPC relying upon the decision of this Court in Sachida Nand Singh [(1998) 2 SCC 493 : 1998 SCC (Cri) 660] . In view of the reasons already discussed, the appeals lack merit and are hereby dismissed."
45. In Wazir Singh v. Kulwant Singh, 1997 SCC OnLine P & H 1084, the Punjab and Haryana High Court held thus:
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 30 | P a g e "15. After the reading of the above section I have come to this conclusion that application under section 340 Cr.P.C. can even be filed after the conclusion of the proceedings and there is no bar that such an application must be filed during the pendency of the proceedings.
The intention of the Legislature behind section 340 is to discourage the offences of forgery etc. and erring litigant should not go scot free with the end of the decision whether done at the initial stage or at the appellate stage. The Legislature has felt that these type of offences affect the administration of justice and to curb this tendency on the part of the erring litigants there should not be any limitation. The only precaution which had been depicted under section 340 is that on making such application the court may conduct a preliminary enquiry, if any, as it thinks necessary to record a finding to that effect that offences referred to in clause (b) of (1) of Section 195 Cr.P.C. has been committed and after recording of such fact can file a complaint to the court of competent jurisdiction. Be that as it may in the present case the respondent is not required to adopt the provisions of section 340 Cr.P.C. as he has become successful by showing that offence of forgery has been committed prior in time to the start of the civil proceedings and that the will was not in the custody of the court when the offence with relation to that will was committed, therefore, a complaint was legally maintainable.
16. In the light of above discussion I hold that the complaint filed by Kulwant Singh was legally M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 31 | P a g e maintainable. It was not barred under section 195 Cr.P.C. and that Kulwant Singh had the locus standi to start the criminal proceedings against the present petitioners and their co-accused. The petition is hereby dismissed."
46. Analyzing the instant application in the light of the decisions of the Hon'ble Apex Court and in view of the discussions held supra, this Court found prima facie evidence that the respondent has falsely given his statement/evidence during his cross-examination in Election Petition No.1 of 2017. The respondent has failed to rebut the documents which were relied upon the applicant in support of his claim. Further, this Court is unable to see any reason on the basis of facts and law cited by the learned counsel for the respondent. On the other hand, as stated supra, on the face of records, there are reasons and ground which requires enquiry qua the false evidence given by the respondent in the Election Petition No.1 of 2017. This may be a case of declining in moral values and erosion of sanctity of oath which leads to offences relating to giving false evidence against public justice.
47. There is a need of checking unscrupulous litigants who at their convenience resorting to utter blatant falsehood in the Courts which has to some extent resulted in polluting the judicial system which is unacceptable. Thus, this Court, prima facie satisfied that the respondent M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 32 | P a g e in judicial proceedings i.e. in Election Petition No.1 of 2017 has wrongly and intentionally made statement/evidence. Further, this Court is satisfied that such statement/evidence under the oath were known to him to be false which he believed to be false and/or at least did not believe to be true.
48. The respondent, being a retired District Magistrate and who is legally bound by an oath to state the truth, is prima facie held to have made a false statement/evidence which constitutes an offence of giving false evidence as defined under Section 191 IPC punishable under Section 193 IPC. Further, this Court feels that a thorough enquiry into the said act of the respondent is to be made before initiating a complaint case against him.
49. The ratio laid down by the Hon'ble Apex Court is to the effect that despite contradictory statement, the Court will have to form an opinion that it is expedient in the interests of justice to initiate an enquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of Cr.P.C. Thus, in the present case, in the factual scenario set out earlier, an enquiry is required to be conducted that too after affording fair opportunity to him.
50. For the reasons stated above, the miscellaneous application is allowed with the following directions:
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 33 | P a g e
(i) The Registry is directed to send a copy of this order as also copies of M.C. (E.P.) No.24 of 2021, written objection filed by the respondent and the reply affidavit to the learned Chief Judicial Magistrate, Imphal West having jurisdiction over the matter.
(ii) The learned Chief Judicial Magistrate, Imphal West is directed to conduct an enquiry against the respondent on the allegations made by the applicant by providing sufficient and reasonable opportunity to him.
(iii) The learned Chief Judicial Magistrate, Imphal West is at liberty to inspect and obtain copies of documents from the office of the BJP, Manipur Pradesh, office of the Hon'ble Speaker, Manipur Legislative Assembly, Manipur with regard to this case and even the records of this Court by taking permission from the concerned authority.
(iv) The learned Chief Judicial Magistrate, Imphal West is further directed to complete the enquiry within twelve weeks from the date of receipt of a M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017) 34 | P a g e copy of this order and submit a report to this Court.
(v) There shall be no order as to costs.
JUDGE
FR/NFR
Sushil
M.C. (El. Pet.) No. 24 of 2020 (Ref.:- Election Petition No. 1 of 2017)