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PETITIONER: CHAJOO RAM

       Vs.

RESPONDENT: RADHEY SHYAM & ANR.

DATE OF JUDGMENT23/03/1971

BENCH: DUA, I.D. BENCH: DUA, I.D. SIKRI, S.M. (CJ) REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1367            1971 SCR  172  1971 SCC  (1) 774  CITATOR INFO :  R          1973 SC 494  (14)  R          1978 SC1753  (16)  RF         1992 SC1701  (41)

ACT: 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.

HEADNOTE: Sevreal  complaints were made to the District Magistrate  by the respondent about the, appellant while he was functioning as  a sarpanch.  As no action was taken on those  complaints the  respondent  filed  a writ petition in  the  High  Court praying for a maridamus directing inquiries to be made.  The 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  need  be  taken against  him.  In those proceedings the appellant  filed  an affidavit  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  I.P.C.,  for having  deliberately  filed  a  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 a false affidavit was  not made  out against the appellant.  An appeal to the  Sessions Court  and  a revision to the High Court by  the  respondent were dismissed. In  the  course of the writ proceedings in  the  High  Court several affidavits were filed and the appellant asserted  in those  affidavits also that he had not acted as  a  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  a  false statement  in  his affidavit.  A single Judge  of  the  High

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Court   ordered  that  a  complaint  be  made  against   the appellant.   The  matter was taken on appeal to  a  Division Bench by the appellant and it was contended that in view  of s.  479-A Cr.  P. C., the appellant could not be  prosecuted under s. 476 Cr.  P. C., but the contention was repelled and it  was held that a person filing an affidavit could not  be considered to have appeared as a witness before the Court as contemplated 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  a person for giving  or  fabricating  false evidence if in respect of such a person proceedings could be taken under s. 479-A.  But under s. 479-A it is only a  wit- ness who has appeared before the court that can be proceeded against. In  the present case, the appellant filed a sworn  affidavit but it was not possible to hold that by doing so he appeared as  a witness.  Since he did not appear as a witness  before the High Court s. 479-A was inapplicable and did not operate as a bar to the proceedings under s. 476 Cr.  P. C. [177A-E] 173 (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 who as a panch, was false. [179B] A  prosecution  for perjury should be sanctioned  by  courts only in those cases Where’ perjury appears to be  deliberate and  Conscious and a conviction is reasonable  probabe,  and when  it is considered expedient in the interest 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 a prima facie case of  deliberate falsehood  on  a matter substance and the  court  should  be satisfied  that  there  is  reasonable  foundation  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 prosecution for  prejudgment to readily and too frequently and without  care and  caution defeats its very purpose.[179E-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          a complaint.  The  High Court did not give due weight  to  the following  facts:  (a)  The appellant was a  Panch  and  was ’authorised to act as    Such  and  his  explanation     was not  implausible.(b)  In  the  order  of  the  Disconsidered inexpedient  to  initiate prosecution on  substantially  the same  charge(c) There was a long lapse of time of more  than 10 year’s 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  a  long  delay  also  militates  against  the expediency of prosecution. [179G-H; 180A-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : 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. B.   N. Sharma, C. P. Lal and N. N. Sharma, for respondent

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No.   1. O. 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 a Division Bench of the Allahabad High Court dated March 13, 1968 affirming the order of a  learned single  Judge  of that Court directing that a  complaint  be filed against the appellant for his prosecution for making a false  statement in para 10 of his affidavit dated  July  6, 1960  to the effect that he had not been acting as  Sarpanch till December 7, 1957. The   relevant   facts  necessary  for   understanding   the controversy   may  now  be  briefly  stated.   Chajoo   Ram, appellant, was elected 174 Sarpanch" of the Nyaya Panehay of 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 dismissed on June 3, 1958.   During  the trial of that petition an injunction was issued  restraining the  appellant from functioning as a Sarpanch.   That  order remained  in  force from December 3, 1956  to  December  10, 1957.   After  the dismissal of the election  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  irre- gularities to have been committed by the, appellant.  As  no action   was  taken  on  those  complaints   Radhey   Shyam, respondent, filed a writ petition (W.P. No-. 89 of 1960)  in the  Allahabad High Court praying for a mandamus’  directing enquiries  into the allegations contained in  his  complaint against the appellant.  This write petition  was allowed on- September  4,  1961  and  a  writ  of  mandamus  was  issued directing  the District Magistrate  and thee  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  are, however, only concerned with para 10 of the affidavit  dated July 6, 1960 filed by the appellant.  That paragraph reads :               "That  the  deponent  was  not  acting  as   a               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               deponent  but  were entrusted by  the  Sahayak               Sarpanch  opposite 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  under  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               Raddey Shyam’s affidavit dated March 28,  1960               to which the appellant’s affidavit dated  July               6, 1960 was a reply:               "9.  That the Sarpanch (opposite party No.  3)               referred  many  cases  to  the  Special  Bench

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             constituted by him. 21 cases out of the  first               list of 22 cases were allotted to this Special               Bench  by  him.  Further out  of  62  criminal               cases  and 35 civil cases instituted.  in  the               year 1956-57 the               175               Bench  consisting of the deponent as  a  Panch               (Bench,  No.1) 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 dependent  was  not               informed of the dates of the hearing fixed  by               Sarpanch   and  many  a  time  he  could   not               therefore,  present himself in the  Bench  and               the   cases  were  decided  in  his   absence.               Sarpanch  who was not a member of this  Bench,               participated   in  the  proceedings  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-               a new amendment."               There was a 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  10-2it is false  and  denied               that Chajoo Ram, did not act as Sarpanch  till               the  7th December, 1957.  As a 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 Chajoo 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  cases  to               benches   according   to  his   choice.    The               procedure followed by Sri Chajoo 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." The appellant filed a counter-affidavit dated July 24,  1960 to  this  rejoinder.   As we are  only  concerned  with  the contents ,of 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 I the deponent stated  that he  had  not been acting as a 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  authorized  by  the  Government  or   prescribed authority were complied with by the Gaon Panchayat and Nyaya Panchayat and to bring to their notice any irregularity 176 or  omission  on  their part.  Shri  Chhottey  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 a 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.

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On December 10, 1962 Rafhey 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 a complaint be made against the appellant in respect of two counts, one of them, which survives for our consideration, being that he had made a  false statement in paragraph 10 of. his  affidavit  dated July  6, 1960 to the effect that he had not been  acting  as Sarpanch  till  December 7, 1957.  On  Chajoo  Ram’s  appeal before  a  Division Bench it was urged on behalf  of  Radhey Shyam is a preliminary point that the appeal was  premature. This  point was referred to a Full Bench which answered  the reference  negativing the Preliminary objection.   When  the appeal  came  back  to the Division Bench it  was  urged  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 a person filing an affidavit in court could not be considered  to have appeared as a 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 t0  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 parpanch was on leave from  June,  4 to June 11, 1957 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   a 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 a complaint to be filed with  respect to  that charge was set aside.  The appeal  was  accordingly allowed  in part and in regard to para 10 of  the  affidavit dated July 6, 1960 it was dismissed.  It is this order which is assailed before us. 177 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.  In sub-s. (6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479  (inclusive) for the prosecution of a person for  giving or fabricating false evidence if in respect of such a 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 (1) of this section, so, far as relevant, lays  down that not withstanding anything contained  in  ss. 476  to  479 (inclusive) when a civil, revenue  or  criminal court is of opinion that any person appearing before it as a witness- has intentionally given false evidence in any stage of  judicial  proceedings or  has  intentionally  fabricated false evidence for the purpose of being used in any stage of the  judicial  proceeding it may, after complying  with  the other conditions contained in this section, make a complaint in  writing  and  forward the same  to  a  magistrate.   The

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crucial  point to be noticed in this section is that  it  is only a witness who has appeared before the court who can  be proceeded against.  Now, the appellant quite clearly did not appear  as a 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  a  witness. Section 479-A, Cr.  P. C. is, therefore, inapplicable and it cannot  operate as a bar to,, the 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.  In 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  ignorance  and  are               mostly ’commonly found in all Nyaya Panchayats               not  only  in  this  district  but  in   other               districts 12-1 S.C. India/71 178 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, affirming  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 application  tinder 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  a  false  affidavit.   The  matter  was inquired  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 a Sarpanch  of the Nyaya Panchayat or only as a  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 a result  of  the preliminary  enquiry the District Magistrate held  that  the case of swearing a 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.

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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  a complaint there is a possibility  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               a  fit  case in which a  complaint  should  be               filed,  and  I  agree with this  view  of  the               learned court.  AR the circumstances have been               fully explained by Chajju Ram." We are informed at the bar that a revision to the High Court against  the order of the Sessions Judge was also  dismissed but that order is not included in the printed record. 179 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 form, receipt no. 61 dated June 6,  1957  on account  of  price of application form and  receipt  no.  77 dated  June  4, 1957 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  a Sarpanch.  It is not shown that  this  was  the function  only  of  the Sarpanch and a  Panch  could  in  no circumstances  sign a receipt.  The next document  on  which reliance  is placed is a kind of a report to  the  Panchayat Raj  Officer  dated  June 6, 1957 informing  him  that  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 information 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 bad replied that this was a  formal matter.   From  this  document also we do not  think  it  is possible  to  hold  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  a  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 a matter ,of substance and the court should  be satisfied  that  there  is  reasonable  foundation  for  the

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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 a 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 a  Panch  and authorized  to  act  as such and  his  explanation  was  not implausible.  The High Court further appears to have  failed to give requisite weight to the 180 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  appellant 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 financially.   In  view of all these  circumstances  we  are constrained  to  allow the appeal and set  aside  the  order directing complaint to be filed. V.P.S.                       Appeal allowed. 181