CRIMINAL MISCELLANEOUS None on 24 December 2008

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Case No. : Crl. Misc. No. M-18869 of 2009 in Crl. Misc. No. M-1860 of 2009

Date of Decision : September 15, 2011

Ashok Kumar....PetitionerVs.Sharda Kadan and others....Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

* * *

Present :Ms. Anju Arora, Advocatefor the petitioner – Ashok Kumar.

Mr. S. S. Narula, Advocatefor respondent no. 1 – Sharda Kadan.

Mr. John Kumar, Advocatefor respondents no.2 and 3 (Vikram Singh and Rakesh Gupta – Advocates).

* * *

L. N. MITTAL, J. (Oral) :

Sharda Kadan – respondent no.1 herein filedCrl. Misc. No. M- 1860 of 2009 against six respondents including Ashok Kumar – petitionerherein as respondent no.4 in the said petition. The said petition was filedthrough Mr. Vikram Singh, Advocate and Mr. Rakesh Gupta, Advocate(arrayed as respondents no.2 and 3 herein). It was asserted in the said petition that the petitioner Sharda Kadan (respondent no.1 herein) has notfiled any such or similar petition earlier either in this Court or in the Hon'bleSupreme Court of India. Affidavit of petitioner Sharda Kadan to this effectwas also filed with the said petition.

Ashok Kumar has filed the instant petition under Section 340of the Code of Criminal Procedure (in short – Cr.P.C.) alleging that ShardaKadan had earlier filed Crl. Misc. No. M-34361 of 2008, which wasdismissed on 24.12.2008 and thereafter filed similar Crl. Misc. No. M-1860of 2009 on 20.01.2009 falsely stating that no such or similar petition hadearlier been filed in this Court. Accordingly, in the instant petition, AshokKumar has sought launching of criminal proceedings against respondentsSharda Kadan, Vikram Singh – Advocate and Rakesh Gupta – Advocate foroffences under Sections 193, 120-B and 471 of the Indian Penal Code (inshort – IPC).

The instant petition under Section 340 Cr.P.C. has beenopposed by the respondents. Respondent no.1 Sharda Kadan has allegedthat instant petition under Section 340 Cr.P.C. is not maintainable as it doesnot disclose any offence mentioned in Section 195 (1) (b) (i) Cr.P.C.However, it was admitted that Sharda Kadan – respondent no.1 herein hadearlier filed Crl. Misc. No. M-34361 of 2008, which was dismissed on24.12.2008 and then filed similar petition bearing Crl. Misc. No. M-1860 of2009, which was, however, withdrawn on 21.01.2009 and there was no attempt to mislead the Court.

Respondents no.2 and 3, in their reply affidavits, have statedthat the subsequent petition Crl. Misc. No. M-1860 of 2009 was filed as aresult of oversight and bona fide mistake, which was inadvertent andunintentional. They have tendered unqualified apology for the same. I have heard learned counsel for the parties and perused thecase file.

In so far as respondents no.2 and 3 (Advocates) are concerned,they have tendered unqualified apology for unintentional and bona fidemistake in filing the second petition bearing Crl. Misc. No. M-1860 of2009. They have also stated that the same was immediately withdrawn on21.01.2009 at the time of preliminary hearing. Keeping in view theunqualified apology tendered by respondents no.2 and 3, admitting theirmistake terming the same to be unintentional and bona fide, I am inclined toaccept the said unqualified apology with direction to respondents no.2 and 3to be careful in future. It would not be expedient in the interest of justice tolaunch any criminal complaint against respondents no.2 and 3 in view oftheir unqualified apology. Accordingly, unqualified apology tendered byrespondents no.2 and 3 is accepted with direction to them to be careful infuture.

As regards respondent no.1 Sharda Kadan, her counselsubmitted that complaint under Section 340 Cr.P.C. can be made only

regarding offences covered by clause (b) of sub-section (1) of Section 195Cr.P.C., but none of the said offences has been committed in the instantcase. It was submitted that mere filing of affidavit does not amount to falseevidence within the purview of Section 193 IPC. It was also submitted thataffidavit annexed with Crl. Misc. No. M-1860 of 2009 contained falseaverment regarding non-filing of such or similar petition earlier, but did notcontain any false averment regarding merits of the case, and therefore, nocomplaint is required to be made under Section 340 Cr.P.C. Learnedcounsel for respondent no.1 has placed reliance on four judgments i.e. ajudgment of Hon'ble Supreme Court in the case of Jotish ChandraChaudhury vs. State of Bihar reported as AIR 1969 Supreme Court 7,another judgment of Hon'ble Apex Court namelyRugmini Ammal (dead)by Lrs. vs. V. Narayana Reddiar and others reported as 2007 (6)Recent Apex Judgments (R.A.J.) 690, a judgment of this Court in the caseof Anil Kapoor vs. Finance-cum-Health Secretary, ChandigarhAdministration and another reported as 1974 Crl. L. J. 862 (V. 80 C.276) and another judgment of this Court titled Shiv Raman Gaur vs.Madan Mohan Kanda reported as 1990 (3) Recent Criminal Reports461.Learned counsel for the petitioner, however, contended thatrespondent no.1 herein intentionally made false statement in her affidavit inCrl. Misc. No. M-1860 of 2009 that no such or similar petition had earlier been filed in this Court, although admittedly exactly similar petition bearingCrl. Misc. No. M-34361 of 2008 had earlier been filed and dismissed.

I have carefully considered the rival contentions.

Section 195 (1) (b) (i) Cr.P.C. relates to various offencesincluding offence under Section 193 IPC. Section 193 IPC prescribespunishment for giving false evidence. `False Evidence' has been defined inSection 191 IPC as under :- “191. Giving false evidence –

Whoever, being legally bound by an oath orby an express provision of law to state thetruth, or being bound by law to make adeclaration upon any subject, makes anystatement which is false, and which he eitherknows or believes to be false or does notbelieve to be true, is said to give falseevidence.”

In the instant case, respondent no.1 herein was legally boundby oath to state the truth in her affidavit filed in Crl. Misc. No. M-1860 of2009 and was also bound by law (High Court Rules and Orders) to makedeclaration that no such or similar petition had earlier been filed in thisCourt, but she made false statement to this effect on oath, and therefore, thisfalse statement on oath in the affidavit squarely falls within the definition of false evidence as given in Section 191 IPC. Consequently, the same ispunishable under Section 193 IPC, which is one of the offences referred toin Section 195 (1) (b) (i) Cr.P.C., for which complaint has to be made underSection 340 Cr.P.C.

Facts

The contention of counsel for respondent no.1 that the falseaverment did not touch the merits or the facts of the case, does not come tothe rescue of respondent no.1 because it is requirement laid down by HighCourt Rules and Orders that filing of previous petition, if any, has to bedisclosed and if no such or similar petition had earlier been filed, then thisfact has to be stated. This requirement has been prescribed to avoid filing ofsimilar petitions repeatedly by the litigant. However, respondent no.1herein, by filing Crl. Misc. No. M-1860 of 2009, tried to overreach thisCourt by concealing the factum of filing of exactly similar petition bearingCrl. Misc. No. M-34361 of 2008, which already stood dismissed. This is avery serious matter touching the administration of justice. Respondent no.1herein tried to play hide and seek with this Court. It is, therefore, expedientin the interest of justice to file complaint against respondent no.1 herein, asrequired by Section 340 Cr.P.C. for commission of offences under Section195 IPC. If no such complaint is filed, the litigants would feel emboldenedand encouraged to file false petitions and false affidavits.

As regards judgments cited by counsel for respondent no.1 thesame are not applicable to the facts or the instant case. In the case of Rugmini Ammal(supra), it was held that complaint under Section 340Cr.P.C. would be required when offence of forgery is committed withrespect to a document after it has been produced or given in evidence in anyCourt and not when the document is forged before filing the same inevidence.Obviously, this judgment has no bearing on the case in hand.Judgments in the cases of Shiv Raman Gaur(supra) and JotishChandra Chaudhury(supra) relate to Section 199 and Section 200 IPC,whereas in the instant case, offence under Section 193 IPC is involved. Inthe case of Anil Kapoor(supra), it was held that where the falsedeclaration does not touch any material point and where the Court is notauthorized to receive such declaration as evidence of any fact, then nooffence is committed. However, in the instant case, this Court wasauthorized to receive the affidavit containing false averment filed byrespondent no.1 herein with her petition Crl. Misc. No. M-1860 of 2009.So, this judgment is also not applicable to the instant case. Moreover, caseof Anil Kapoor(supra) also relates to Section 199 and Section 200 IPCand not to Section 193 IPC.

For the reasons aforesaid, I find that it is expedient in theinterest of justice to lodge criminal complaint against respondent no.1herein Sharda Kadan, as required by Section 340 Cr.P.C. for commission ofoffence under Section 193 IPC. The petition is, therefore, allowed.Registrar General/authorized Officer of this Court is directed to file Crl. Misc. No. M-18869 of 2009 in 8Crl. Misc. No. M-1860 of 2009

necessary criminal complaint against Sharda Kadan – respondent no.1herein in the Court of competent jurisdiction.

September 15, 2011

monika

( L. N. MITTAL )JUDGE