CHAJOO RAM versus RADHEY SHYAM & ANR.

CBAJOO RAM

RADHEY SHYAM &: ANR.

March 23, 1971

[S. M. SIKRI, C. J., P. JAGANMOHAN REDDY AND I. D. DUA, JJ.J

Code of Criminal Procedure (Act 5 of 1898), ss. 476 and 479-Scope of-Filing of false affidavit if appearing as witness.

Practice-Prosecution for perjury-When should be ordered.

Several complaints were made to the District Magistrate by the re8· pondent about the appellant while he was functioning as Sarpanch. As no action was taken on those complaints the respondent filed writ peti· tion in the High Court praying for mandamus directing inquiries to be made. 'fhe writ petition was allowed and an inquiry was directed to be held. The inquiry was held by the Sub-Divisional Magistrate and it was held that there were only irregularities committed by the appellant, that be did not abuse his position in any way, and that no action Ot:ed be taken against him. In those proceedings the appellant filed an affida vii that he had not acted as Sarpanch during the relevant period but only looked after the work of the Sarpanch. The respondent presented an application under s. 476, Cr. P. C., in the Court of the District Magistrate praying for the appellant's prosecution under ss. 193, 181 and 182 1.P.C., for having deliberately filed false affidavit. The matter was inquired into by District Magistrate and after going through the entire material he held that the case of swearing of false affidavit was not made out against the appellant. An appeal· to the Sessions Court and revision to the High Court by the respondent were dismissed.

Tn the course of the writ proceedings in the High Court several affida-vits were filed and the appellant asserted in those affidavits also that he had not acted as Sarpanch during the relevant period. The respondent again moved the High Court by filing an application under s. 476, Cr. P. C., for the appellant's prosecution for making false statement in his affidavit. single Judge of the High Court ordered that complaint be made against the appellant. The matter was taken on appeal to Division Bench by the appellant and it was contended that in view of s. 479-A Cr. P. .. the appellant could not be prosecuted under s. 476 Cr. P. C., bunhe conten-tion was repelled and it was held that per!l<>n filing an affidavit could not be considered to have appeared as witness before the Court as con .. templated by s. 479-A.

In appeal to this Court,

HELD: In s. 479 A(6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479 for the prosecution of person for giving or fabricating false evidence if in respect of such person proceed-ings could be taken under s. 479-A. But under s. 479-A it is only wit-ness who hal' appeared before the court that can be proceeded against.

In the present case, the appellant filed sworn affidavit but it was ont possible to hold that by doing so he appeared as witness. Since he did not appear as witness before the High Court s. 479-A was inapplicable and did not operate as bar to the proceedings under s. 476 Cr. P. C. [177A-E]

(2) But there is nothing to show that the explanation given by the appellant that he did not act as Sarpanch at the relevant time, but only did his work as panch, was false. (1798]

prosecution for perjury should be sanctioned by courts only in those cases where perjury appears to be deliberate and Conscious and convic-tion is reasonably probable, and when it is considered expedient in the interests of justice to punish the delinquent; and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on matter of substance and the court should be satisfied that there is reasonable founda-tion for the charge. The giving of false evidence and the filling of false affidavits is no doubt an evil which must be effectively curbed but to start prosecuuon for prejury too readily and too frequently and without due care and caution defeats its. very purpose. [l 79E-G]

In the present case, the material on record was not sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file complaint. The High Court did not give due weight to the follow-ing fa~ts: (a) The appellant was Panch and was authorised to act as such and bis explanation was not implausible. (b) In the order of the Dis-trict Magistrate, which was confirmed by the Sessions Judge, it had bee11. considered inexpedient to initiate prosecution on substantially the same charge. (c) There was long lapse of time of more than 10 years since the filing of the affidavit, and during this time, the appellant must have suffered both mentally and financially, (d) In view of the nature of the alleged prejury such long delay also militates against the expediency of prosecution. (1790-H; 180A-C]

CR!MINAL APPELLATE JURISDICI10N : Criminal Appeal No. 195 of 1968.

Appeal by special leave from the judgment and order dated March 13, 1968 of the Allahabad High Court, Lucknow Bench in Criminal No. 175 of 1964.

D. P. Uniyal and S. S. Shukla, for the appellant.

R. N. Sharma, C. P. Lal and N. N. Sharma. for respondent

0. P. Rana, for respondent No. 2.

The Judgment of the Court was delivered by

Dua, J".-This appeal by special leave is directed against the judgment and order of Division Bench of the Allahabad High Court dated March 13, 1968 affirming the order of learned single Judge of that Court directing that complaint be filed against the appellant for his prosecution for making false state-ment in para IO of his affidavit dated July 6, 1960 to the effect that he had not been acting as Sarpanch till December 7, 1957.

The relvant facts necessary for understanding the controversy may now be briefly stated. Chajoo Ram. appellant, was elected

Sarpanch of the Nyaya Panchayat of Risia Bazar, Tehsil Nan-pora, District Bharaic at the election held for that office on October 29, 1956. Radhey Shyam (respondent in this Court) who was defeated in that election filed an election petition which was dir.missed on June 3, 1958. During the trial of that petition ~n injunction was issued restraining the appeallant from function-B ing as Sarpanch. That order remained in force from December 3, 1956 to December 10, 1957. After the dismissal of the elec-tion petition, the appellant started. functioning as Sarpanch. Several complaints also seem to have been made by Radhey Shyam and some others to the District Magistrate, alleging irce-gularities to have been committed by the appellant. As no action was taken on those complaints Radhey Shyam, respondent, filed writ petition (W.P. No. 89 of 1960) in the Allahabad High Court praying for mandamus directing enquiries into the alle-gations contained in his complaint against the appellant. This writ petition was allowed on September 4, 1961 and writ of mandamus was issued directing the District Magistrate and the Sub-Divisional Magistrate to hold an enquiry against the appellant but the question of determining whether it was in public interest to hold an enquiry was left to those authorities. In the course of the writ proceedings several affidavits were filed in the High Court by the contesting parties. We art, however, or.ly concerned \>lith para 10 of the affidavit dated July 6, 1960 filed by the appellant. That paragraph reads :

"That the deponent was not acting as Sarpanch till 7th December, 1957, when he was given over charge of the office of Sarpanch by opposite party No. 4 Chhotey Lal Sahayak Sarpanch. Except the cases mentioned below none were entrusted to the benches by the depo-nent but were entrusted by the .sahayak Sarpanch oppo-F site party No. 4 who was acting in place of the deponent under the orders of the court after the petitioner had filed election petition. The cases mentioned below were dealt by the deponent nnder the old procedure in the absence of any directions issued to him."

Then four cases are mentioned which had been filed in November, 1956. In order to fully appreciate the contents of this paragraph it is necessary to reproduce paras 9 and 10 of Radhey Shyam's affidavit dated March 28, 1960 to which the appellant's affidavit dated July 6, 1960 was reply: -

"9. That the Sarpanch (opposite party No. 3) referred many cases to the Special Bench constituted by him. 21 cases out of the first list of 22 cases were allotted to this Special Bench by him. Further ont of 62 criminal cases and 35 civil cases institnted in the year 1956-57 the

'Bench consisting of the deponent as Panch (Bench No. I) was allotted only 16 criminal and 8 civil cases whereas, it should have been allotted 21 criminal and 12 civil cases.

10. That in many cases the deponent was not in-formed of the elates of the hearing fixed by Sarpanch and many time he could not, therefore, present himself in the Bench and the cases were decided in his absence. Sarpanch, who was not member of this Bench, partici-pated in the proceeding8 of this Bench."

In reply to para 9 of this affidavit the appellant had stated in his affidavit of July 6, 1960 :-

"There is no dispute with regard to the procedure laid down in this paragraph. It is new amendment."

There was rejoinder affidavit dated July 15. 1960 filed by Radhey Shyam in which reply to para 10 of the appellant's affidavit dated July 6, 1960 is contained in para 8 and it reads as follows : -

"Regarding para 10-it is false and denied that Chajon Ram, did not act as Sarpanch till the 7th December, 1957. As matter of fact he was acting as Sarpanch throughout in violation of the stay order passed against him. It is also denied that other cases except those mentioned by Chajon Ram in this para were not referred to the Benches by him. Chajoo Ram was throughout acting as Sarpanch and he in that capacity referred caRes to benches according to his choice. The procedure followed by Sri Chajon Ram opposite party no. 3 was in violation of the procedure laid down in the Panchayat Raj Act and the Rules framed thereunder. The rest of the contents of this para are denied."

Tbe appellant filed counter-affidavit dated July 24, 1960 to this rejoinder. As we are only concerned with the contents -0f para 10 in the appellant's affidavit dated July 6, 1960 we need only refer to the relevant assertions in this counter-affidavit. In para 1 the deponent stated that he had not been acting as Sarpanch on June 6, 1957 and with regard to annexure 34 it was submitted that the entire document had been written by Shri B. P. Joshi, Mantri whose duty it was to see that the provisions of the Panchayat Raj Act and Rules and bye-laws made thereunder and all orders issued or authorised by the Government or pres-<:ribed authority were complied with by the Gaon Panchayat and Nyaya Panchayat and to bring to their notice any irregularity

or omission on their part. Shri Chhotey Lal, Sahayak Sarpanch: had gone out on June 3, 1957 and had asked the deponent to do ministerial work which he could do under the Act. Radhey Shyam, respondent, filed further rejoinder to this counter-affidavit on the same day viz. July 24, 1960 but in this rejoinder nothing new was stated on this point

On December 10, 1962 Radhey Shyam, respondent, moved in the High Court an application under s. 476, Cr. P. C. for the appellant's prosecution. The learned single Judge directed by his order dated January 27, 1964 that complaint be made· against the appellant in respect of two counts, one of them,. which survives for our consideration, being that he had made false statement in paragraph 10 of his affidavit dated July 6, I 960 io the effect that he had not been acting as Sarpanch till December 7, 1957. On Chajoo Ram's appeal before Division Bench it was urged on behalf of Radhey Shyam as preliminary point that the appeal was premature. This point was referred to Full Bench, which answered the reference negativing the preliminary objection. When the appeal came back to the Divi-sion Bench it was argued on behalf of the appellant that in view of the provisions of s. 479-A, Cr. P. C. no prosecution could be taken under s. 476 of the Code. This contention was repelled and it was held that person filing an affidavit in court could not be considered to have appeared as witness before that court as contemplated by s. 479-A Dealing with the merits the Division Bench of the High Court observed that the respondent had placed on the record four receipts (nos. 39 to 42) and "a copy of the report supposed to have been submitted by the appellant as Sarpanch to the Panchayat Raj Officer" indicating that the appellant had acted as Sarpanch between June 4 and June 6, 1957. The appellant's explanation, that Chhotey Lal, Sahayak Sarpanch was on leave from June 4 to June 11. I 957 and that the appellant had merely worked for Chhotey Lal in those days, was not accepted for the reason that this explanation was neither included in the affidavit filed by the appellant in reply to the application under s. 476, Cr. P.C. nor in supplementary affidavit filed by him in connection with some other matter. The fact that Radhey Shyam, respondent, was prompted by considerations of malice in initiating these proceedings was considered to be immaterial. With respect to the second statement, which was also the subject matter of the learned single Judge's direction, the Division Bench held that charge to be unsustainable and the order of the single Judge directing complaint to be filed with respect to that charge was set aside. The appeal was accordingly allowed in oart and in regard to para 10 of the affidavit dated July 6, 1960 it was dismissed. It is this order \\1tich is assailed before us.

The first point which was pressed before us relates to the , effect of s. 479-A, Cr. P.C. This section was added to the Code of Criminal Procedure by Act 26 of 1955 with the object of eradicating the evils of perjury. It overrides the provisions of ss. 476 to 479. Jn sub-s. (6) it is expressly provided that no pro-ceedings shall be taken under ss. 476 to 479 (inclusive) for the prosecution of person for giving or fabricating false evidence if in re~pect of such person proceedings may be taken under this section. The question to be seen, however, is if s. 479-A applies to the present case. Sub-section (I) of this section, so far as relevant, lays down that not withstanding anything con-,tained in ss. 476 to 479 (inclusive) when civil, revenue or criminal court is of opinion that any person appearing before it as witness has intentionally given false evidence in any stage of judicial proceedings or has intentionally fabricated false evi-dence for the purpose of being used in any stage of the judicial proceeding it may, after complying with the other conditions con-tained in this section, make complaint in writing and forward the same to magistrate. The crucial point to be noticed in this section is that it is only witness who has appeared before 1 the court who can be proceeded against. Now, the appellant quite clearly did not appear as witness before the High Court. He undoubtedly filed sworn affidavit but· it is not possible to hold that by doing so he could be said to have appeared as witness. Section 479-A, Cr. P. C. is, therefore, inapplicable and it cannot operate as bar to thf\ proceedings under s. 476, Cr .P.C.

Before dealing with the merits of the case we consider it proper to refer to the proceedings before the District Magistrate, Bharaic pursuant to the order of the High Court dated September 4, 1961. An enquiry, it appears, was got made by the District Magistrate through the Sub-Divisional Magistrate (Shri Nageshwar Singh). According to the report of the Sub-Divisional Magistrate dated January 4, 1963 Chajoo Ram, appellant, was only found lo have committed some irregularities in disposing of the cases but without any dishonest motive on his part. Jn the opinion of the Sub-Divisional Magistrate, no action was called for against the appellant. It appears that the District Magistrate on February 17, 1963 desired a, further probe into the matter. Shri K. P. Mathur, S.D.O. after going through the records of the Nyaya Panchayat once again endorsed the report of his predecessor observing :

"I also agree .with Shri Nageshwar Singh that the allegations had no mala fide intention, the irregularities that had been found were due to inexperience or ignor-ance and are mostly commonly found in all Nyaya Panchayats not only in this district but in other districts

12-1 S.C. Ind;a/71

also. Shri Chajoo Ram does not appear to have abused his position in any way."

It appears that in those proceedings also the appellant had filed an affidavit on December 8, 1961, affinning that he had not acted as Sarpanch for one year and that Chhotey Lal. Sahayak Sarpanch looked after the work of the Sarpanch during that period. Radhey Shyam, respondent, presented an applicat10n Under s. 476, Cr. P. C. in the court of the District Magistrate also praying for the appellant's prosecution under ss. 193/181/182, I.P.C. for having deliberately filed false affidavit. The matter was enquired into by the District Magistrate and after going through the entire material placed before him he came to the conclusion that the explanation given by Chajoo Ram was quite plausible and it was "doubtful to deduce" from the material placed before him "whether he had really acted as Sarpanch of the Nyaya Panchayat or only as Panch''. The District Magistrate specifically referred to the files of some cases on which Radhey Shyam had relied in support of his allegation that the appellant had acted as Sarpanch but the District Magistrate was unable to uphold this allegation. Four receipts nos. 77 and 59 to 61 were also relied upon by Radhey Shyam in support of his allegation but here again the District Magistrate was unable to hold that the appellant had acted as Sarpanch. As result · of the pre-liminary enquiry the District Magistrate held that the case of swearing false affidavit was not made out against the appellant ,and the notice issued to him was discharged on May 4, 1964. Radhey Shyam took the matter on appeal to the court of the Sessions Judge assailing the order of the District Magistrate dated May 4, 1964, but without success. That court also came to the conclusion that the appellant was not shown to have acted as Sarpanch during the period in question. The final conclusion of the Sessions Judge was expressed in these words.

"The Court has also to consider whether after filing complaint there is possibilty of conviction. The laches pointed out on behalf of the appellant committed by Chajju Ram can be explained easily in law courts. I agree with the learned counsel for the respondent that the possibility of the conviction of the respondent appears to be quite remote. The learned court below after carefully considering all the facts and circumstances of the case came to the conclusion that it is not fit case in which complaint should be filed, and I agree with this view of the learned court. All the circumstances have been fully explained by Chajju Ram."

We are informed at the bar that revision to the High Court against the order of the Sessions Ji:.-ige was also dismissed but that order is not included in the printed record.

Before us reliance has been placed on four receipts viz. receipt no. 59 and 60 dated June 4, 1957 for 12 ps. as price of application fonn, receipt no. 61 dated June 6, 1957 on account of price of application fonn and receipt no. 77 dated June 4, 11957 for 53 ps. on account of summons fee which is said to have been received by the appellant. On these days, according to the appellant, the Sahayak Sarpanch was on leave. There is nothing to suggest that this explanation is false and we do not think that on the basis of these three receipts the appellant can be said to have acted as Sarpanch. It is not shown that this was the function only of the Sarpanch and Panch could in no circumstances sign receipt. The next document on which reliance is placed is kind of report to the Panchayat Raj Officer dated June 6, 1957 informing him tha.t some Panchas had not attended since the establishment of the Panchayat. In this document the appellant's signatures and the signatures of the Secretary, B.P. Joshi, both appear below the endorsement forwarding this report to the Panchayat Inspector for infonna-tion and necessary action. This was explained by the appellant in his affidavit where he stated that the Secretary had inserted the word "Sarpanch" and on the appellant's objection to the use of this word, the Secretary had replied that this was fonnal matter. From this document also we do not think it is possible to bold that the appellant intended to act as Sarpanch on June 6, 1957.

The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavit is an evil which must be effectively curbed with strong hand but to start prosecution for perjury too readily and too frequently with-out due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on matter of substance and the court should be satisfied that there is reason-able foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file complaint. The approach of the High · Court seems somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation : it seems to have ignored the fact that the appellant was Panch and authorised to act as such and his explanation was not implausible. The Hi2h Court further appears to have failed to give requisite weight to the

order of the District Magistrate which was confirmed by the Sessions Judge, in which it was considered inexpedient to initiate prosecution on the charge of alleged false affidavit that the appel-lant had not acted as Sarpanch during the period of the stay order. The subject matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution. And then by reason of the pendency of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and finan-cially. In view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed.

Appeal allowed.