Perjury filing false affidavit in civil proceedings: Allahabad High Court 2016

AFR
Reserved
Case :- APPLICATION U/S 482 No. – 12840 of 2016
Applicant :- Mahesh Tiwari
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Chetan Chatterjee
Counsel for Opposite Party :- G.A.,Amit Kumar
Srivastava
Hon’ble Suneet Kumar,J.
The prospective accused /applicant has approached
this Court, in proceedings under Section 482 Cr.P.C.,
assailing order dated 31 February 2015 passed by the
Revisional Court /Additional Sessions Judge, Court No. 1
Bareilly, in Criminal Revision No. 22 of 2015 (Mahesh
Tiwari vs. State of U.P. and others) affirming summoning
order dated 17 December 2014 passed by the Judicial
Magistrate-1 Anwla, Bareilly in complaint case no. 743 of
2014 for an offence under Section 193 IPC.
The facts, briefly is, that the applicant instituted a
suit for permanent injunction against the
complainant/opposite party no. 2 being suit no. 94 of
2013 (Sri Subhash Inter College, Anwla through its
Manager, Mahesh Tiwari, Advocate vs. Smt. Ruchi Saxena
and others). The plaint was duly supported by an affidavit
sworn by the applicant which was stated to be true to
personal knowledge. In paragraph 16 of the affidavit filed
in support of the plaint, it was averred that the cause of
action for instituting the suit arose on 26 July 2013 when
the opposite party no. 2/complainant threatened the
principal of the college to remove the wall, however, in
the event of failure, it was alleged that the wall would be
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removed by using force.
Aggrieved by the assertion, which according to the
complainant, was false for the reason that the
complainant was abroad (USA) from 18 May 2013 until
10 September 2013. The complainant, therefore, filed an
application under Section 340 Cr.P.C. for initiating
proceedings for perjury, which was rejected by the civil
court by order dated 18 November 2013 for the reason
that the alleged affidavit was prepared and sworn out
side the court and thereafter filed in the court, therefore,
the proceedings in terms of Section 340 Cr.P.C. would be
impermissible.
Thereafter, complainant filed a private complaint
under Section 190 Cr.P.C. against the applicant seeking
his prosecution for an offence alleged to have been
committed under Section 193 IPC. The learned Magistrate
upon examining the complainant under Section 200 and
recording statement of the witness under Section 202
Cr.P.C. summoned the applicant. Aggrieved, applicant
preferred a revision, which by the impugned order
affirmed the summoning order.
The summoning order, revisional order and the
complaint proceedings is being assailed.
Sri Chetan Chatterji, learned counsel appearing for
the applicant would contend that: (i) an application filed
under Section 340 Cr.P.C. arising out of original suit was
dismissed, against the dismissal order, since appeal was
not preferred by the complainant under Section 341
Cr.P.C., therefore, subsequent private complaint was not
maintainable; (ii) evidence would not include an affidavit
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in view of Section 1 read with Section 3 of the Indian
Evidence Act 1872; (iii) Section 30 read with Order 19 of
the Code of Civil Procedure (CPC), would provide the
circumstances, when an affidavit can be permitted to be
filed in evidence or in the alternative the circumstances
in which certain facts may be proved by means of an
affidavit, therefore, pleadings, as such, would not be an
evidence within the meaning of Section 191/192 IPC; (iv)
private complaint for an offence under Section 193 IPC
for perjury would be barred in view of Section 195(1)
Cr.P.C.
In rebuttal Sri Amit Kumar Srivastava, learned
counsel appearing for the complainant would submit that
the statement made on oath by the applicant being false,
which fact he knew to be false on the date of swearing,
therefore, would tantamount to giving false evidence in a
judicial proceeding defined under Section 191/192 IPC,
which is punishable under Section 193 IPC, therefore,
would contend that an affidavit is an evidence within the
meaning of Section 191/192 IPC. A private complaint for
filing a false affidavit in civil proceedings would be
maintainable, therefore, the impugned orders are lawful
and valid.
Rival submission falls for consideration.
The salient features of giving false evidence under
Section 191 IPC are:-
(i) intentionally making a false statement, or
(ii) declaration by a person who is under a legal
obligation to speak the truth.
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The giving of false evidence amounts to practicing of
fraud upon the court. Thus to make a statement of false
evidence within the meaning of this section, it must be
established that the person was legally bound by an oath
or an express provision of law (a) to state the truth, or
(b) to make a declaration upon any subject.
In certain cases, the law requires a declaration from
a person on verification in a pleading, and if such a
declaration is made falsely it will come under this clause.
Section 191 and 192 deal with perjury and filing of
false affidavit in pleadings would be covered under
Section 191. Section 191 deals with evidence on oath and
Section 192 with fabricating false affidavits; the offence
under Section 191 IPC is constituted by swearing falsely
when one is bound by oath to state the truth because a
declaration made under an oath. The definition of the
offence of giving false evidence thus applies to the
affidavits. The offence may also fall within Section 192
which, inter alia, lays down that a person is said to
fabricate false evidence if he makes a document
containing a false statement intending that such false
statement may appear in evidence in a judicial
proceeding and so appearing in evidence may cause any
person who, in such proceedings is to form an opinion
upon the evidence to entertain an erroneous opinion
touching any point material to the result of such
proceedings. Therefore, where declarations in affidavits
which were tendered in the Court to be taken into
consideration, the authors of the affidavit clearly intended
the statement to appear in evidence in a judicial
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proceedings and so appearing, to cause the Court to
entertain an erroneous opinion regarding the
compromise, therefore, the offence would fall within
Section 191, 192 which is punishable under Section 193
IPC, therefore, it was held that the authors of the
affidavits were guilty of offence of giving false evidence or
fabricating false evidence for the purpose of being used in
judicial proceedings. (Refer: Baban Singh and
another vs. Jagdish Singh and others (AIR 1967
68).
Where a verification is specific and deliberately false,
there is nothing in law to prevent a person from being
proceeded for contempt. But it must be remembered that
the very essence of crimes of this kind is not how such
statements may injure this or that party to litigation but
how they may deceive and mislead the courts and thus
produce mischievous consequences to the administration
of justice. A person is under a legal obligation to verify
the allegations of fact made in the pleadings and if he
verifies falsely, he comes under the clutches of law.
Consequently, there cannot be any doubt that if a
statement or averment in a pleading is false, it falls
within the definition of offence under Section 191 IPC. It
is not necessary that a person should have appeared in
the witness box. The offence stands committed and
completed by the filing of such pleading.
In Ranjeet Singh vs. State of Pepsu AIR 1959
SC 843 the accused, a police officer, was called upon to
make a statement against an application under Article
226 of the Constitution for a writ of habeas corpus in
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which it was alleged that the accused had illegally
detained a man in police custody. In his written
(statement), the accused filed an false affidavit denying
that the man was never arrested by the police or was in
his custody. It was held that the accused was legally
bound to place the true facts before the court in his
affidavit and since the statements made by him in the
affidavit were found to be false, it was held that he has
committed the offence under Section 193 IPC for giving
false evidence as defined in Section 191 IPC.
The making of a false statement, without knowledge
as to whether the subject matter of the statement is false
or not is giving of false evidence. A witness falsely
deposing in another’s name, and a persons falsely
verifying his plaint, and an official making a false
statement upon the service of summons were held guilty
of giving false evidence under this Section. (Refer: S.P.
Kohli (Dr.) vs. High Court of Punjab and Haryana
AIR 1978 SC 1753.)
Section 191 contemplates declarations which a
person is bound by law to make. The most familiar
instances of such declarations are plaints and pleadings in
suits. A person being under a legal obligation to verify
facts in plaints and pleadings is liable to be punished
under Section 193 for perjury, if he verifies falsely.
(Asgar Ali Mulla Ibrahimji vs. Emperor AIR 1943
Nag 17(18).
Where a person falsely verifies a written statement
he will be liable for perjury. Where as person falsely
verifies an execution application he will be liable for
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perjury. (Emperor vs. Padam Singh AIR 1930 All
490).
An affidavit is ‘evidence’ within the meaning of
Section 191 IPC and a person swearing to a false affidavit
is guilty of perjury. The definition of the offence of giving
false evidence applies to the affidavits. (Parag Dutt vs.
Emperor AIR 1930 Oudh 62 (63)).
Where a police officer, accused taking delivery of
draft of counter affidavit from Standing Counsel for being
signed by his superior for filing in Supreme Court. Asking
a police official to forge signature of his superior on
carbon copy of counter affidavit. On refusal, he contacting
his superior and latter directing official asked to forge his
signature. Official acting accordingly. Accused sending
carbon copy with others for filing it in Supreme Court,
said affidavit containing false averments. Accused officer
present in Supreme Court premises along with the officer
whose signature was forged on date of filing affidavit.
Accused is guilty of offence under Section 193. He abeted
officer to forge signature of his superior. (Refer: Afzal
and another vs. State of Haryana and others AIR
1996 SC 2326 (2334).
A five Judge Bench in Iqbal Singh Marwah and
another vs. Meenakshi Marwah and another 2005
(51) ACC 910 (SC) noted the conflict of language
between two decisions rendered by Bench of three Judge
in Sachida Nand Singh and others vs. State of Bihar
and others 1998 Criminal Law Journal 1565 and
Surjeet Singh and another vs. Balbeer Singh 1996
8
Criminal Law Journal 2304 regarding interpretation of
Section 195(1)(b)(ii) Cr.P.C. The Court was of the opinion
that Sachida Nand Singh has been correctly decided
and the view taken therein is the correct view. Section
195(1)(b)(ii) Cr.P.C. would be attracted only when the
offences enumerated in the said provision have been
committed with respect to a document after it has been
produced and given in evidence in proceedings in a Court
i.e. during the time when the document was in custodia
legis.
Iqbal Singh Marwah case involved the
interpretation of the expression “when such offence is
alleged to have been committed in respect of a document
produced or given in evidence in a proceedings in any
court”.
In the facts of the present case, the ratio of Iqbal
Singh Marwah would not apply as affidavit in support of
a plaint / written statement is neither a document or
evidence as contemplated in 195(1)(b)(ii) of Cr.P.C. Nor
does the offence under Section 193 IPC is covered
therein, Section 195 (1)(b)(ii) deals with all kinds of
forgery committed in respect of a document or evidence
produced in the court. The complaint in the present case
has been filed for filing a false affidavit in civil
proceedings for an offence punishable under Section 193
which is referred to under Section 195(1)(b)(i) Cr.P.C. for
the offence defined under Section 191 and 192 IPC.
Section 1 and Section 3 of Evidence Act together
make it clear that affidavit is not regarded as evidence
9
under the Act, but can be used as evidence only if for
sufficient reason court passed an order under Order XIX
Rule 1 and 2 of the CPC. Affidavits, though, are not
included in Section 3 of the Act, same can be used as
evidence, if law specifically permits certain matters to be
proved by affidavit. Mere swearing of affidavit does not
make statement contained therein a piece of evidence.
Swearing is only a guarantee of the authenticity of the
affidavits but not of their contents. (Sudha Devi vs.
M.P. Narayanan and others AIR 1988 SC 1381, Rita
Pandit vs. Atul Pandit AIR 2005 AP 253 (FB).
As regards documentary evidence, documents
requiring proof cannot become evidence before they are
proved. A document has to be proved first then the
question of its authenticity has to be determined. A
written statement filed on behalf of an accused cannot be
treated as a document produced for inspection of the
Court. It is not strictly evidence even though the Court
may consider it. The word ‘evidence’ means instruments
by which relevant facts are brought before Court viz
witnesses and documents by means of which court is
convinced of these facts.
Filing of a false affidavit in a proceedings pending
before the Civil Court would amount to an offence falling
under Section 193 IPC and proceedings would have to be
initiated on a complaint in writing by that court. Private
complaint filed by the opposite party for an offence
allegedly committed under Section 193 IPC is not
maintainable being vitiated for non-compliance of the
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mandatory provisions under Section 195(1)(b)(i) Cr.P.C.
In Kailash Mangal vs. Ramesh Chand (D)
Through Legal Representative (LAWS (SC)-2015-1-
117) Supreme Court held as follows:
“In the instant case, the false affidavit
alleged to have been filed by the appellant was
in a proceeding pending before the civil court
and the offence falls under Section of the 193
of   the   IPC   and   the   proceeding   ought   to   have
been initiated on the complaint in writing by
that   Court   under   Section   195   (1)(b)(i)of   the
(Cr.P.C.).   Since   the   offence   is   said   to   have
been   committed   in   relation   to   or   in   a
proceeding in a civil court, the case of Iqbal
Singh Marwah (supra)  is not applicable to the
instant case.
The   private   complaint   filed   by   the
respondent for the offences allegedly committed
under   Section   193   of   the   Code   is   not
maintainable as the same is vitiated on account
of non­compliance of the mandatory provision of
Section   195(1)(b)(i)   of   the   Cr.P.C.”  (Refer:
Govind Mehta vs. State of Bihar (1971) 3 SCC 329,
Surjit Singh and others vs. Balbir Singh (1996) 3 SCC
533, K. Venqadachalam vs. K.C. Palanisamy (2005) 7
SCC 352)
Therefore, false averments in pleadings are sufficient
to attract Chapter XI of the Indian Penal Code.
Section 190 Cr.P.C. provides that a Magistrate may
take cognizance of an offence (a) upon receiving a
complaint of facts which which constitute such offence (b)
upon a police report of such facts, and (c) upon
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information received from any person other than a police
officer, or upon his own knowledge, that such offence has
been committed. Section 195 Cr.P.C. is a sort of exception
to this general provision and creates an embargo upon
the power of the court to take cognizance of certain types
of offences enumerated therein. The procedure for filing a
complaint by the court as contemplated by Section
195(1) Cr.P.C. is given in Section 340 Cr.P.C. The purpose
of the section is to bar private prosecution where the
courts of justice is sought to be perverted leaving to the
court itself to uphold its dignity and prestige.
In M.S. Ahlawat v. State of Haryana & Anr., AIR
2000 SC 168, Supreme Court considered the matter at
length and held as under :
“5….Provisions   of   Section   195   CrPC   are
mandatory and no court has jurisdiction to
take   cognisance   of   any   of   the   offences
mentioned   therein   unless   there   is   a
complaint in writing as required under that
section.”  (Refer: Kamla Prasad Singh vs. Hari
Nath Singh AIR 1968 SC 19, Iqbal Singh Marwah
(supra))
Normally, a direction for filing of a complaint is not
made during the pendency of the proceeding before the
court and this is done at the stage when the proceedings
is concluded and the final judgment is rendered. ( Refer:
N. Natarajan vs. B.K. Subba Rao AIR 1993 SC 541)
For the law and reasons stated herein above, the
impugned order dated 31 February 2015 passed by the
Revisional Court/Additional Sessions Judge in Criminal
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Revision No. 22 of 2015 (Mahesh Tiwari vs. State of U.P.)
and summoning order dated 17 December 2014 passed
by the Judicial Magistrate-I, Anwla, Bareilly cannot be
sustained, accordingly, is set aside, the proceedings being
Complaint Case No. 743 of 2014 (Vijay Kumar vs. Mahesh
Tiwari) instituted by opposite party no. 2 is thereby
quashed.
The application is allowed.
Order Date :- 24.08.2016
S.Prakash