AARISH ASGAR QURESHI versus FAREED AHMED QURESHI & ANR. on 26 February 2019

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SUPREME COURT REPORTS[2019] 3 S.C.R. 400

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AARISH ASGAR QURESHI

v.

FAREED AHMED QURESHI & ANR.

(Criminal Appeal No. 387 of 2019)

BFEBRUARY 26, 2019

[R. F. NARIMAN AND VINEET SARAN, JJ.]

Code of Criminal Procedure, 1973 – s.340 – Matrimonialproceedings – Certain averments made in anticipatory bailapplications both before the Sessions Court as well as the HighCCourt – Allegation that the statements made were knowingly falseand were deliberately made in order to get favourable orders fromthe Court – Sessions Court held that the application filed by theapplicant is premature – Same statements made in anticipatory bailapplication before the High Court – High Court found that statementDmade in the aforesaid application was false and therefore, a primafacie case was made out for perjury u/s.340 and that it would beexpedient in the interest of justice to prosecute the appellant – Onappeal, held: There should be something deliberate- a statementshould be made deliberately and consciously which is found to befalse as a result of comparing it with unimpeachable evidence,Edocumentary or otherwise – In the facts of the present case, thestatement made in the anticipatory bail application cannot be testedagainst unimpeachable evidence as evidence has not yet been led –High Court has not scrutinised any evidence as there was none toscrutinise – All that the High Court has seen is a preliminaryFinvestigation report, and that too by a police officer, together witha High Court order granting anticipatory bail, none of which canbe said to be unimpeachable evidence against which it can clearlybe stated that a prima facie case of perjury can be said to have beenmade out – Order of the High Court set aside.

GAllowing the appeal, the Court

HELD: 1.1 There should be something deliberate- astatement should be made deliberately and consciously which isfound to be false as a result of comparing it with unimpeachableevidence, documentary or otherwise. In the facts of the present H

case, it is clear that the statement made in the anticipatory bailapplication cannot be tested against unimpeachable evidence asevidence has not yet been led. Moreover, the report dated12.11.2011 being a report, which is in the nature of a preliminaryinvestigation report by the investigating officer filed only two daysafter the F.I.R. is lodged, can in no circumstances be regarded asunimpeachable evidence contrary to the statements that havebeen made in the anticipatory bail application. Though thesubmission recorded by the High Court in para 3 of the orderdated 30.11.2017 is from the aforesaid paragraph in the anticipatorybail application, yet, the High court made it clear that it wasgranting anticipatory bail principally because the F.I.R. annexedto the bail application does not show that there was sexualintercourse of the applicant with his wife during the course oftheir separation as a result of which it was not possible to assesswhether the averment regarding the offence punishable underSection 377 of the I.P.C. is or is not substantiated. The HighCourt also recorded that considering that the husband and wifehad resided together after marriage only for a very brief period,and that the husband was granted interim anticipatory bail, decidedto grant final anticipatory bail on these grounds. It is clear,therefore, that both the grounds stated by the High Court wouldnot suffice to initiate prosecution under Section 340 read withSection 195 (1)(b) of the Cr.P.C. [Para 10] [408-B-F]

1.2 In the facts of the present case, the High Court has notscrutinised any evidence as there was none to scrutinise. Further,all that the High Court has seen is a preliminary investigationreport, and that too by a police officer, together with a High Courtorder granting anticipatory bail, none of which can be said to beunimpeachable evidence against which it can clearly be statedthat a prima facie case of perjury can be said to have been madeout. [Para 13] [409-F-H]

1.3 The arguments of learned counsel appearing on behalfof the appellant that the High Court has not satisfied itself that itis expedient in the interest of justice to proceed with the matterdoes not appear to be correct. Such finding is recorded. However,it is found otherwise that it ought not to have so proceeded.Equally, not impressed by the argument by the appellant’s counsel AB

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Aon suppression of the Sessions Court order. The impugned orderof the High Court is set aside. [Paras 15, 16] [410-C-D]

Sarvepalli Radhakrishnan University and Another v.Union of India and Others2019 SCC OnLine SC 51 –distinguished.

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Chajoo Ram v. Radhey Shyam (1971) 1 SCC 774:[1971] Suppl. SCR 172; Chandrapal Singh andOthers v. Maharaj Singh and Another (1982) 1 SCC466 ; R.S. Sujatha v. State of Karnataka and Others(2011) 5 SCC 689 : [2010] 14 SCR 227 – relied on.

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Karunakaran v. T. V. Eachara Warrier and Another(1978) 1 SCC 18 : [1978] 2 SCR 209 ; State of Goa v.Jose Maria Albert Vales alias Robert Vales(2018) 11SCC 659 ;M.S. Sherif v. State of Madras AIR 1954SC 397 : [1954] SCR 1229;Perumal v. Janaki (2014)D5 SCC 377 : [2014] 1 SCR 591;H.S. Bedi v. NationalHighway Authority of India2015 SCC OnLine Del9524 – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealGNo. 387 of 2019

From the Judgment and Order dated 07.03.2018 of the High Courtof Judicature at Bombay in Criminal Application No. 728 of 2017.

Mrs. Amrita Panda, Neil Chatterjee, Debesh Panda, Advs. forthe Appellant.

Nilesh Ojha, Vijay Kumar, R. C. Sharma, Mareesh Pravir Sahay,Advs. for the Respondents.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. Leave granted.

2. The present case arises out of a judgment dated 07.03.2018 ofthe High Court of Judicature at Bombay, in which the High Court feltthat a prima facie case has been made out for perjury under Section 340of the Cr.P.C., and that it would be expedient in the interest of justice toprosecute the appellant before us.

3. The present case arises out of matrimonial proceedings in whichcertain averments have been made in anticipatory bail applications bothbefore the Sessions Court as well as the High Court. Insofar as theanticipatory bail application before the Sessions Court is concerned, theapplicants in the aforesaid application stated:

“8. That the Applicant No.1 was deeply troubled by thesedevelopments and thus approached his mother in law, NaseemQureshi to ask for her intervention in this matter and in the hopethat a mother would be able to talk sense to her own daughter andimprove their relations. However, despite the intervention of severalfamily members, there was no change in Sana’s behaviour. Duringthis period, it came to light that Sana was having an affair withone Waseem Shaikh who resided in Mahim. The in-laws of theApplicant No.1 admitted that they were aware of this relationshipwhich had been going on prior to the marriage of the ApplicantNo.1 with Sana but as the said Waseem Shaikh belonged to anothercommunity, they did not approve of the relationship and had forcedSana to marry the Applicant No.1.

11. That on the 29[th] of October, 2016, the Applicant No.1 went tofetch Sana from her maternal home and was completely aghastto find Sana in a compromising position with Waseem Shaikh.That the Applicant No.1 was further shocked that such incidenceswere occurring right under the nose of his in-laws who were doingnothing to discourage their daughter from maintaining these illicit A

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Arelations. Thereafter, the Applicants made it clear to theComplainant and his family members that they would not toleratethe continuance of such illicit relations which went against thesacred institution of marriage and demanded that Sana stop allinteractions with the said Waseem Shaikh and that she shouldgenuinely try to make her marriage work. However, Sana refusedBto comply and in November, 2016, Sana left her matrimonial hometaking with her various items.”

When the aforesaid statements were brought to the notice of theSessions Court, and it was argued before the Sessions Court that thesewere knowingly false statements deliberately made in order to getCfavourable orders from the Court, the Sessions Court by a judgmentdated 12.02.2018 held:

“The accused are charged for the offences punishable underSections 323, 376(b), 377, 406, 498A, 504 and 506 read with 34 ofthe Indian Penal Code and under Sections 3 and 4 of the DowryDProhibition Act, 1961. F.I.R. was registered on 19-11-2017. Stillcharge-sheet is not filed before the Court therefore, proceedingagainst the Accused Nos.1 to 7 is yet to be conducted. Evidenceof prosecution witnesses and defence witnesses, if any, are yet tobe recorded. After recording of evidence, both parties having anEopportunity to cross-examine the witness. Thereafter, it will bedecided whether the allegation made by the accused persons aretrue or false. At this juncture, contradictory statement of AccusedNos. 1 to 7 are before the Court. Now, the truthfulness of thestatement is not decided. Admittedly, if the person made falsestatement before the Court on oath, he is liable for punishment.FHowever, for that purpose, it is necessary to come to theconclusion that the accused persons had made false statement.Merely, on the basis of contradictory statement made by theaccused, they cannot be punished, at this juncture, and cannotinitiate proceeding under Section 340 of Cr.P.C., as the allegationsGare yet to be proved in the case filed by the victim. Therefore, thisapplication filed by the applicant is premature.”

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4. The same statements were made in an anticipatory bailapplication before the High Court. The High Court found that aninvestigating officer had filed a Report dated 24.11.2017 and recorded a H

finding that the allegations made in the anticipatory bail application werefalse. It prima facie appeared to the Court that the Respondent No.2has made a false statement in the aforesaid application and that therefore,a case for filing a complaint under Section 340 read with Section 195(1)(b)of the Cr.P.C. is made out and it is expedient in the interest of justice thatan enquiry be made by the judicial magistrate having jurisdiction. TheHigh Court also referred to para 3 of an order dated 30.11.2017 in whichthe aforesaid allegations were repeated and, according to the High Court,anticipatory bail was granted.

5. Mrs. Amrita Panda, learned counsel appearing on behalf of theappellant, has stated that the so-called investigation report is a preliminaryreport made by an investigating officer two days after the filing of theF.I.R. in which no findings whatsoever had been recorded about thefalsity of the statements made in the anticipatory bail application. Shealso argued that the High Court order of 30.11.2017 merely recordedthe allegation that was found to be false as a submission made byappellant’s counsel. However, the anticipatory bail was granted forreasons that were entirely different from the submission made. Shealso argued before us that it was highly improper on the part of therespondents to have suppressed the proceeding that ultimately culminatedin the Sessions Court order of 12.02.2018, and said that on this groundalso since the respondents approached the High Court with uncleanhands, the impugned order ought to be set aside. She cited certainjudgments to buttress her contentions.

6. Mr. Nilesh Ojha, learned counsel appearing on behalf of theRespondent No.1, has countered these submissions. On suppression,he has stated that, as a matter of fact, the application for anticipatorybail made in the Sessions Court was made after that made in the HighCourt, and effective arguments were over in the High Court by the 8[th]and 9[th] of February. Obviously therefore, the order dated 12.02.2018could not be brought to the notice of the High Court. He also stated thatthe anticipatory bail application made before the Sessions Court was aseparate and independent application, which the Sessions Court dealtwith, and the anticipatory bail application made before the High Courtagain being separate, it was open to the High Court to arrive at its ownconclusion in an independent proceeding as to whether a prima faciecase under Section 340 has been made. He also relied upon certainjudgments to buttress his arguments.

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A7. The law under Section 340 on initiating proceedings has beenlaid down in several of our judgments. Thus in Chajoo Ramvs. RadheyShyam, (1971) 1 SCC 774, this Court, in para 7, stated:

“7. … No doubt giving of false evidence and filing false affidavitsis an evil which must be effectively curbed with a strong hand butto start prosecution for perjury too readily and too frequentlywithout due care and caution and on inconclusive and doubtfulmaterial defeats its very purpose. Prosecution should be orderedwhen it is considered expedient in the interests of justice to punishthe delinquent and not merely because there is some inaccuracyin the statement which may be innocent or immaterial. Theremust be prima facie case of deliberate falsehood on a matter ofsubstance and the court should be satisfied that there is reasonablefoundation for the charge.”

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8. Similarly in Chandrapal Singh and Othersvs. MaharajSingh and Another, (1982) 1 SCC 466, this Court, in para 14, stated:

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“14. That leaves for our consideration the alleged offence underSection 199. Section 199 provides punishment for making a falsestatement in a declaration which is by law receivable in evidence.We will assume that the affidavits filed in a proceeding for allotmentof premises before the Rent Control Officer are receivable asevidence. It is complained that certain averments in these affidavitsare false though no specific averment is singled out for this purposein the complaint. When it is alleged that a false statement hasbeen made in a declaration which is receivable as evidence in anyCourt of Justice or before any public servant or other person, thestatement alleged to be false has to be set out and its allegedfalsity with reference to the truth found in some document has tobe referred to pointing out that the two situations cannot co-exist,both being attributable to the same person and, therefore, one tohis knowledge must be false. Rival contentions set out in affidavitsaccepted or rejected by courts with reference to onus probandido not furnish foundation for a charge under Section 199, I.P.C.To illustrate the point, appellant 1 Chandrapal Singh alleged thathe was in possession of one room forming part of premises No.385/2. The learned Additional District Judge after scrutinising allrival affidavits did not accept this contention. It thereby does notbecome false. The only inference is that the statement made by E

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Chandrapal Singh did not inspire confidence looking to otherrelevant evidence in the case. Acceptance or rejection of evidenceby itself is not a sufficient yardstick to dub the one rejected asfalse. Falsity can be alleged when truth stands out glaringly and tothe knowledge of the person who is making the false statement.Day in and day out, in courts averments made by one set ofwitnesses are accepted and the counter averments are rejected.If in all such cases complaints under Section 199, I.P.C. are to befiled not only there will open up floodgates of litigation but it wouldunquestionably be an abuse of the process of the Court. Thelearned Counsel for the respondents told us that a tendency toperjure is very much on the increase and unless by firm actioncourts do not put their foot down heavily upon such persons thewhole judicial process would come to ridicule. We see some forcein the submission but it is equally true that chagrined and frustratedlitigants should not be permitted to give vent to their frustration bycheaply invoking jurisdiction of the criminal court. Complainantherein is an Advocate. He lost in both courts in the rent controlproceedings and has now rushed to the criminal court. This itselfspeaks volumes. Add to this the fact that another suit betweenthe parties was pending from 1975. The conclusion is inescapablethat invoking the jurisdiction of the criminal court in this backgroundis an abuse of the process of law and the High Court rather glossedover this important fact while declining to exercise its power underSection 482, Cr. P.C.”

9. Both these judgments were referred to and relied upon withapproval in R.S. Sujatha vs. State of Karnataka and Others, (2011) 5SCC 689 (at paras 15 & 16). This Court, after setting down the law laiddown in these two judgments concluded:

“18. Thus, from the above, it is evident that the inquiry/contemptproceedings should be initiated by the court in exceptionalcircumstances where the court is of the opinion that perjury hasbeen committed by a party deliberately to have some beneficialorder from the court. There must be grounds of a nature higherthan mere surmise or suspicion for initiating such proceedings.There must be distinct evidence of the commission of an offenceby such a person as mere suspicion cannot bring home the chargeof perjury. More so, the court has also to determine as on facts, A

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[2019] 3 S.C.R.

Awhether it is expedient in the interest of justice to inquire into theoffence which appears to have been committed.”

10. It is clear therefore from a reading of these judgments thatthere should be something deliberate - a statement should be madedeliberately and consciously which is found to be false as a result ofBcomparing it with unimpeachable evidence, documentary or otherwise.In the facts of the present case, it is clear that the statement made in theanticipatory bail application cannot be tested against unimpeachableevidence as evidence has not yet been led. Moreover, the report dated12.11.2011 being a report, which is in the nature of a preliminaryinvestigation report by the investigating officer filed only two days afterCthe F.I.R. is lodged, can in no circumstances be regarded as unimpeachableevidence contrary to the statements that have been made in theanticipatory bail application. Further, as has been correctly pointed outby learned counsel appearing on behalf of the appellant, that though thesubmission recorded by the High Court in para 3 of the order datedD30.11.2017 is from the aforesaid paragraph in the anticipatory bailapplication, yet, the High court made it clear that it was grantinganticipatory bail principally because the F.I.R. annexed to the bailapplication does not show that there was sexual intercourse of theapplicant with his wife during the course of their separation as a result of which it was not possible to assess whether the averment regardingEthe offence punishable under Section 377 of the I.P.C. is or is notsubstantiated. The High Court also recorded that considering that thehusband and wife had resided together after marriage only for a verybrief period, and that the husband was granted interim anticipatory bail,decided to grant final anticipatory bail on these grounds. It is clear,Ftherefore, that both the grounds stated by the High Court would notsuffice to initiate prosecution under Section 340 read with Section 195(1)(b) of the Cr.P.C.

11. Learned counsel appearing on behalf of the Respondent No.1,however, cited a number of judgments. Thus in K. Karunakaran vs.GT.V. Eachara Warrier and Another, (1978) 1 SCC 18, this Court, afterreferring to Chapter XXVI of the Code of Criminal Procedure, 1973reiterated that a statement cannot be said to be false unless it is donedeliberately or intentionally (see paras 23 & 30). Considering that thisCourt was hearing an appeal against a High Court order initiatingprosecution it held that when two views are possible in the matter it willH

not be expedient in the interest of justice to interfere with the aforesaidorder (see para 26).

12. In Sarvepalli Radhakrishnan University and Anothervs.Union of India and Others, 2019 SCC OnLine SC 51, this Court referredto the facts in that case in which the Court constituted a high levelcommittee headed by a senior officer deputed by the Director, CentralBureau of Investigation with two doctors of the All India Institute ofMedical Sciences as its members to go into the facts. The Committeegathered facts in great detail, as is mentioned in paras 8 & 9 of theaforesaid judgment, and ultimately came to certain conclusions after adetailed enquiry. It is in this circumstance that this Court found, afterperusing the Committee’s Report, that the College in question hadmanufactured records brazenly in order to obtain favourable orders fromthe Court. It is on the basis of the aforesaid findings of the Committeethat it was clear that a false statement had been made by the College onthe basis of completely fabricated documents. The facts of this caseare very far from the facts of the present case as there are no fabricateddocuments in the present case nor has there been a detailed enquiry byan independent high level committee going into facts. This case is,therefore, distinguishable from the facts of the present case.

13. The case next cited by learned counsel for the respondentNo.1 is State of Goa vs. Jose Maria Albert Vales alias RobertVales,(2018) 11 SCC 659 in which the learned counsel relied, in particular,upon para 34. Para 34 of this judgment, in turn, relied upon the celebratedjudgment of M.S. Sherif vs. State of Madras, AIR 1954 SC 397, andultimately concluded that as the High Court in that case had scrutinisedthe evidence “minutely” and had disclosed ample materials on which ajudicial mind could reasonably reach the conclusion that furtherinvestigation was necessary in a Section 340 proceeding, held that theSection 340 proceeding must, therefore, go on. As has been stated inthe facts of the present case, the High Court has not scrutinised anyevidence as there was none to scrutinise. Further, all that the HighCourt has seen is a preliminary investigation report, and that too by apolice officer, together with a High Court order granting anticipatorybail, none of which can be said to be unimpeachable evidence againstwhich it can clearly be stated that a prima facie case of perjury can besaid to have been made out. This judgment also does not further therespondent’s case. The respondent then relied upon Perumalvs. Janaki, AB

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(2014) 5 SCC 377 and para 20, in particular, to state that the High Courtsnot only have the authority to exercise such jurisdiction under Section195 but also an obligation to exercise such power in appropriate cases.This proposition is unexceptionable. We have, however, found that thepresent is not such an appropriate case.

14. Learned counsel then relied upon a Delhi High Court judgmentreported as H.S. Bedi vs. National Highway Authority of India, 2015SCC OnLine Del 9524 which states in some detail the problems facedwith present day courts and the number of false affidavits that are filedbefore them. This again has very little application, as we have seenabove, to the facts of the present case.

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15. The arguments of learned counsel appearing on behalf of theappellant that the High Court has not satisfied itself that it is expedient inthe interest of justice to proceed with the matter does not appear to becorrect. Such finding is recorded. However, we have found otherwisethat it ought not to have so proceeded. Equally, we are not impressed byDthe argument by the appellant’s counsel on suppression of the SessionsCourt order.

16. In the result, the appeal is allowed and the impugned order ofthe High Court is set aside.

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Appeal allowed.

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