Document Fragment View

Matching Fragments

25. On 23.9.2008 when the matter came up before another Division Bench of this Court, it was observed that since the child has been recovered and is no longer with the Gujarat police, prayers (i) and (ii) made by the petitioner in the writ petition stood granted and, therefore, the petition stood disposed of to the extent of those prayers. The writ petition, therefore, survived in respect of prayer (iii) which related to compensation. With regard to the application for amending the writ petition (Crl. M.A. 6979/2008), the Bench observed that instead of seeking an amendment, the relief for alleged human rights violations may be agitated by way of an independent petition as the same did not appear to be relatable to prayer (iii) of the present petition but rather seeks to lay foundation for grant of some additional reliefs. The Bench also observed that the birth certificate dated 30.7.2008 relating to Shamim was found to be a forged one and it was urged on behalf of the respondent No. 4 (State of Gujarat) that the petitioner had committed the offence of perjury for which she must be proceeded with in accordance with the law. Being prima facie satisfied that the offence of perjury was made out against the petitioner and that she needed to be proceeded against, a show cause notice was, therefore, issued to her asking her to indicate as to why she should not be proceeded against for perjury. It may be noted that prior to the order dated 23.09.08, an affidavit had been filed by one Pushkar Raj who was said to be working as a Program Officer with Commonwealth Human Rights Initiative, New Delhi. As per the said affidavit, the birth certificate of Shamim was filed under the belief that the said birth certificate was genuine. The said document had been provided by the petitioner's husband who claimed that he had obtained the same from the office of the Municipal Corporation of Delhi and, therefore, there was no reason for the said NGO (Commonwealth Human Rights Initiative, New Delhi), which was assisting the petitioner, in suspecting the genuineness of the said document. The affidavit further reveals that upon verification, it was found that the said birth certificate was, indeed, false. However, it was also stated that Mohd Azad, the petitioner's husband, who had made the birth certificate available for the purposes of filing in Court, claimed that the certificate was genuine and stated that the MCD Office at Daryaganj issued the birth certificate as also the birth certificate of his younger daughter (Zyasha). The birth certificate in respect of his daughter Zyasha had been found to be valid and genuine. It is further narrated that when Mohd Azad asked for a birth certificate for his son Shamim, he was referred by the MCD office at Daryaganj to the office at Irwin Road, where he says an official of the MCD, named Pradeep, provided him with the said birth certificate on payment of Rs 140/-. The deponent of the said affidavit namely, Pushkar Raj, was again deputed to visit the office of the MCD at Irwin Road where he met Mr Pradeep and he assured him that the certificate issued by him was genuine. He, however, submitted that the birth certificate of Shamim attached along with the proposed amended writ petition was a false certificate and that this fact is uncontested. The deponent also expressed deep regret that a wrong document was filed before this Court. The two issues:

―3. That I have not attempted to mislead this Hon'ble Court by filing a false certificate. As this Hon'ble Court will, appreciate, the sought for relief had been granted by this Hon'ble Court, and there was no reason for me to file a false birth certificate for my son.
4. The certificate had been provided by my husband who had obtained the birth certificate of my son Meelam Shamim from an office of the Municipal Corporation of Delhi.

7. That my husband and I are illiterate people. Whenever we interact with government offices, we depend on government officials telling us about rules and procedures, and we follow their instructions unquestioningly. My husband and I have been victims of corrupt government officials. Both the certificates obtained by my husband, one for my daughter and the other for my son, look the same to my eyes, but I am told that although the birth certificate for my daughter is genuine, the certificate for my son is false. I had no way of knowing that the certificate was a fake one.‖ In paragraph 8 of the said affidavit, the petitioner has once again apologized and expressed deep regret for unsuspectingly filing a false certificate. She stated that she had no reason to file a false certificate in view of the nature of the relief sought in the present petition as also in the proposed amended writ petition. She submitted that she was deeply indebted to this Court for restoring her son to her and that she would never participate in any activity that seeks to subvert the process of law.

40. Similarly, Section 192 deals with fabrication of false evidence and prescribes that 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 in 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.‖ It is obvious that in the present case the birth certificate of Shamim was a false certificate. The fabrication of the certificate was not done by the petitioner. Therefore, the provisions of Section 192 IPC can only be invoked with the help of Section 196 IPC which relates to using evidence known to be false. Section 196 provides that whoever corruptly uses or attempts to use, as true or genuine evidence, any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. By virtue of Section 196 even a person who himself or herself was not involved in the fabrication of false evidence itself, but corruptly uses or attempts to use as true or genuine any evidence which he or she knows to be false or fabricated is to be punished under the law as if he/she gave or fabricated false evidence. The fact that Shamim's birth certificate was a fake certificate is now established beyond doubt. The only thing to be examined is whether the petitioner knew that the same was fabricated. From the material on record, it is apparent that the petitioner did not have the knowledge or belief that the birth certificate was not a genuine birth certificate. Therefore, it cannot be said that the petitioner corruptly used or attempted to use the fake certificate as a true or genuine certificate inasmuch as she did not know the same to be a false certificate. As a consequence, it does not appear that the petitioner committed any offence punishable under Section 193 read with Section 196 IPC, also.