2. This appeal challenges the Judgment and Order dated 07.10.2015
passed by the High Court of Madhya Pradesh at Indore in M.CR.C No.2526
of 2015 whereby the High Court authorized the Principal Registrar of the
High Court under Section 195(1)(b)(i) of Criminal Procedure Code
(“Cr.P.C”, for short) to file complaint in the concerned court of Magistrate
against the appellant herein.
3. The appellant was elected to Lok Sabha in the elections held in the
year 2014 from Ujjain Lok Sabha Constituency. His election was
challenged vide Election Petition No.33 of 2014 by one Premchand Guddu.
On 31.07.2014 notice was issued by the High Court in said election petition
and the same was to be served upon the appellant through the District Judge,
Ujjain. The next date in the petition being 01.09.2014, the notice was said to
have been served upon the appellant on 16.08.2014 by one Mr. Arun
Bhalerao, Process Server.
4. According to the appellant, the aforesaid notice was served on one of
his employees while the appellant was in Delhi and that the appellant came
to know about the pendency of the election petition only on 25.01.2015. On
the other hand according to the election petitioner, the process server had
served the notice on the appellant himself.
5. On the returnable date of hearing, namely, on 01.09.2014, neither the
appellant was present before the High Court nor was he represented by any
counsel. Since the service report presented before the Court showed that the
appellant was duly served on 16.08.2014, the case proceeded ex parte.
6. On 29.01.2015 the appellant moved an application under Order 9 Rule
7 Civil Procedure Code (“CPC”, for short) being I.A. No.927 of 2015 and
submitted inter alia that the process server had served notice and documents
on one of the employees while the appellant was in Delhi and that the
appellant came to know about the election petition only on 25.01.2015.
Soon thereafter the original election petitioner filed an application under
Section 340 Cr.P.C. being I.A. No.1303 of 2015 in pending election petition
alleging that the appellant had committed perjury by stating falsely that the
notice in the election petition was given to his employee whereas said notice
was actually served upon the appellant by the process server.
7. By its order dated 24.03.2015, the High Court allowed I.A. No.927 of
2015 preferred by the appellant for setting aside the order for proceedings
ex-parte against the appellant and it allowed the appellant to participate in
the proceedings. Further, by another order of the same date, the High Court
allowed I.A. No.1303 of 2015 preferred by the original election petitioner
and directed the Registry to register a criminal case. The Registrar was also
given directions to conduct appropriate inquiry under Section 340 Cr.P.C. In
compliance of said order, M.Cr.C. No.2526 of 2015 was registered on
27.03.2015 and appropriate show cause notice was issued to the appellant.
In the subsequent proceedings, statement of Mr. Arun Bhalerao, Process
Server was recorded who stated that the requisite notice was served on the
appellant by him.
8. By its order dated 24.09.2015, the High Court accepted the plea taken
by the appellant in his application preferred under Order 7 Rule 11 C.P.C. in
pending election petition and the election petition was dismissed.
9. By subsequent order dated 07.10.2015 which is presently under
appeal, the High Court authorized the Principal Registrar of the High Court
under Section 195(1)(b)(i) of Cr.P.C. to file appropriate complaint in the
concerned Court of Magistrate. It was observed:-
“(6) After recording the statements and taking into
consideration the served notice bearing No.1762 dated
12.08.2014 and enclosed hukmnama, it is apparent that notice
was served personally on the respondent while in the affidavit,
he mentioned that notice was served on his staff.
(8) It is to be seen whether, it is in the interest of justice to
punish the respondent whether, such lapses on his part are
immaterial and innocent.
(9) Counsel for the respondent argues that it was
unintentional mistake on the part of the respondent and,
therefore, no action should be taken against him.
(10) In my considered opinion, however, more cautious and
responsible approach was expected from the respondent being
representative of people and professor himself. He is expected
to understand the consequences of not appearing before the
Court of law and specially before the High Court. Therefore, in
this case, lenient and sympathetic view is not called for. In this
view of the matter, I find that prosecution for perjury should be
initiated against the respondent.”
10. Appearing for the appellant, Mr. K.V. Vishwanathan, learned Senior
Advocate submitted inter alia ;
(a) It has consistently been laid down by this Court that
prosecution for perjury be sanctioned by Courts only in those cases where
perjury appears to be deliberate and on a matter of substance and the
conviction would reasonably be probable. Further, prosecution ought to be
ordered when it would expedient in the interest of justice to punish the
delinquent and not merely because there is some inaccuracy in the statement.
He placed reliance on the decision of this Court in Chajoo Ram v. Radhey
Shyam and Another-(1971) 1 SCC 774 where this Court observed:-
“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
affidavits is an evil which must be effectively curbed with a
strong hand but to start prosecution for perjury too readily and
too frequently without 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
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
Reliance was also placed on the decision of this Court in K.T.M.S.
Mohd. and Another v. Union of India. -(1992) 3 SCC 178
(b) The fact that there was delay of five months in filing the
application under Order 9 Rule 7 from the date of alleged service of notice
on 16.08.2014 indicated that the appellant was not aware of the pendency of
the election petition.
11. Ms. Swarupama Chaturvedi, learned Advocate appearing for the
respondent submitted that for a person to be made liable under Section 191
and 193 of IPC following ingredients would be required :-
(i) Person must be legally bound by an oath or any express
provision of law to state the truth or to make a declaration on any subject.
(ii) He must make the false statement.
(iii) He must know or believe to be false or must not be believed to
Relying on Baban Singh and Anr v. Jagdish Singh & Ors – AIR 1967 SC 68, it was
submitted that the appellant was obliged to state facts correctly. According
to Ms. Chaturvedi the statement of Arun Bhalerao, Process Server clearly
showed that the appellant himself had signed the receipt of notice and yet a
false statement was made.
12. Having given our anxious consideration to the entirety of the matter,
in our view, the guiding principle is the one as laid down in Chajoo Ram
(supra). The law is clear, “prosecution should be ordered when it is
considered expedient in the interest of justice to punish the delinquent….
and there must be prima facie case of deliberate falsehood on the matter of
substance and the Court should be satisfied that there is reasonable
foundation for the charge”. The assessment made by the High Court, as
extracted in the paragraph hereinabove, in our considered view, does not
satisfy the parameters and requirements as laid down by this Court.
13. Recently, this Court in Amarsang Nathaji v. Hardik Harshadbhai
Patel and Others -(2017) 1 SCC 113 summed up the legal position as under:
“6. The mere fact that a person has made a contradictory
statement in a judicial proceeding is not by itself always
sufficient to justify a prosecution under Sections 199 and 200 of
the Penal Code, 1860 (45 of 1860) (hereinafter referred to as
“IPC”); but it must be shown that the defendant has
intentionally given a false statement at any stage of the judicial
proceedings or fabricated false evidence for the purpose of
using the same at any stage of the judicial proceedings. Even
after the above position has emerged also, still the court has to
form an opinion that it is expedient in the interests of justice to
initiate an inquiry into the offences of false evidence and
offences against public justice and more specifically referred to
in Section 340(1) CrPC, having regard to the overall factual
matrix as well as the probable consequences of such a
prosecution. (See K.T.M.S. Mohd. v. Union of India). The
court must be satisfied that such an inquiry is required in the
interests of justice and appropriate in the facts of the case.”
14. We are of the considered view that initiation of proceedings in the
present case was not consistent with the parameters laid down by this Court.
The election petition itself has been dismissed and considering the entirety
of the matter, it would not be expedient to initiate proceedings under Section
340 Cr.P.C. read with Section 195(1)(b)(i) of Cr.P.C. We, therefore, accept
the appeal and close the proceedings. The appeal stands allowed and the
judgment and order under appeal is set aside.
(Uday Umesh Lalit)
April 27, 2018
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