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498a Discussion Forum - View topic - SEC 340 Cr P C ACCPETED BY JUDGE IN SEC 9 HMA & SEC 24
It is currently Sat Jun 19, 2021 9:42 pm



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SEC 340 Cr P C ACCPETED BY JUDGE IN SEC 9 HMA & SEC 24 
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Joined: Fri Jul 18, 2008 3:59 am
Posts: 10


Last edited by Tipok on Wed Apr 15, 2009 9:24 am, edited 2 times in total.



Fri Jan 09, 2009 4:44 pm
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Good going. Thanks for the post.


Sat Jan 10, 2009 1:11 am
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Hello Friends,

May someone throw some light in layman terms - how the above two cases can be helpful in our cases...

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James Bladwin


Sat Jan 10, 2009 3:47 pm
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Hi,

The details reg LAW points are still I feel inadequate and if you come with some details exactly, it will be good for the forum.

Sec 24 is a weak thread on males.
Any wife can file with any allegations etc in a simple Affidavit and if the contents are false or unprovable, then the statement contained in the Affidavit is false and it is filed only with a motive to enrich herself.

May be Sec 24 depends on the Status and Income of both parties, but does it allow any lady to file any damn before the Court for want of any undue claim with false allegations or false statements.

If the allegations or statements are happen to be false then, Sec 340 can be invoked on her?????


wbr
ramnath

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A Good solution can be successfully applied to any problem.
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Sat Jan 10, 2009 4:29 pm
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Joined: Fri Jul 18, 2008 3:59 am
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Giving false affidavite is a crime & SC has taken it serious.

We have been successful in getting 340 intiated in Sec 9 & Sec 24.

If you have proof then Sec 340 is very good tool.


Sat Jan 31, 2009 10:06 am
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It's a naked truth that every affidavit by the girl's side, in all such cases are false cases...good point.


Mon Feb 02, 2009 12:46 am
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Two things, I would like to point out for CrPC 340, whcih should always be there for the efficacy of the same.

1. The concerned lie should touch the material aspect of the proceedings.
2. The filing of perjury complaint should be in the interest of natural justice and not mere delay in proceedings.


Mon Feb 02, 2009 5:37 am
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Joined: Wed Feb 04, 2009 7:39 am
Posts: 114
Some questions:-

if we file 340 what will happen (if we have material proof)?
judge will take cognize or not?
imprisonement or somthing less?
still maintenance can be awarded to wife by the judge?
disposal of main petition of divorce get late due to first disposal of 340?
this 340 complaint prevail side by side on the same date or different dates?


Sat Feb 28, 2009 11:36 am
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I thank Shonee for all the guidance and help. The Court has asked the judicial clerk to proceed with the complaint in my DV matter as seperate proceedings . This is another feather in your cap Shonee. I am posting the section and please explain the details in your lucid style for other members in the forum. Many members have asked for the judgments I relied on and will post them seperately.

Code of Criminal Procedure

Chapter 26 (PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE)

340. Procedure in cases mentioned in Section 195:- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate, and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.

(3) A complaint made under this section shall be signed-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section, "Court" has the same meaning as in Section 195.

341. Appeal :--(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (1) or sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195, and the superior Court May thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such-former Court might have made under Section 340, and, if it makes such complaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order, an order under Section 340, shall be final and shall not be subject to revision.

342. Power to order costs:- Any Court dealing with an application made to it for filing a complaint under Section 340 or an appeal under Section 341, shall have power to make such order as to costs as may be just.

343. Procedure of Magistrate taking cognizance:- (1) A Magistrate to whom a complaint is made under Section 340 or Section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.

(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.

344. Summary procedure for trial for giving false evidenced:- (1) If, at the time of delivery of any judgement of final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.

(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

(3) Nothing in this section shall affect the power of the Court to make a complaint under Section 340 for the offence, where it does not choose to proceed under this section.

(4) Where, after any action is initiated under sub-section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgement or order in which the opinion referred to in that sub-section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.

345. Procedure in certain cases of contempt:--(1) When any such offence as is described in Section 175, Section 178, Section 179, Section 180, or Section 228 of the Indian Penal Code (45 of 1860), is committed in the view or presence of any Civil, Criminal, or Revenue Court, the Court may cause the offender to be detained in custody, and may, at any time before the rising of the Court or the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, sentence offender to fine not exceeding two hundred rupees, and, in default of payment of fine, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid.

(2) In every such case the Court shall record the fact constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence.

(3) If the offence is under Section 228 of the Indian Penal Code (45 of 1860), the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult.

346. Procedure where Court considers that case should not be dealt with under Section 345.- (1) If the Court in any case considers that a person accused of any of the offences referred to in Section 345 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other reason of opinion that the case should not be disposed of under Section 345, such Court, after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of such person before such Magistrate, or if sufficient security is not given, shall forward such person in custody to such Magistrate.

(2) The Magistrate to whom any case is forwarded under this section shall proceed to deal with, as far as may be, as if it were instituted on a police report.


Tue Mar 03, 2009 7:05 am
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OOH LA LA

So you used my perjury complaint as a basis and built on that.

MOGAMBO KHUSH HUA.

I would explain on this.


Tue Mar 03, 2009 7:39 am
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Conviction for perjury *

(2008) 8 Supreme Court Cases 34

(Before Dr. Arijit Pasasayat and P. Sathasivam, JJ.)
Mahila Vinod Kumari. . Petitioner;
Versus

State of Madhya Pradesh . . Respondents.

SLPs (Crl.) Nos. 4950-51 of 2008† with Crl. Misc. Petitions Nos. 8515-16 of 2008, decided on July 11, 2008
A. Criminal Procedure Code, 1973 — S. 344 — Perjury — Petitioner filing false report against two persons alleging rape — On basis of the report charge-sheet filed and accused put to trial — During trial petitioner resiling from her statement made during investigation and even denying lodging of FIR or having given any statement to police — Accused were acquitted but cognizance taken against petitioner in terms of S. 344 — Before the trial court petitioner admitting that she had lodged false report of rape against the accused and hence sentenced to undergo three months’ simple imprisonment — Appeal filed thereagainst dismissed by High Court — Submission before Supreme Court that being a girl of tender age, she was pressurised by her mother and uncle to give a false report was found at variance with the statement made in court during trial to the effect that she had not reported anything to the police — Held, it is a settled position in law that so far as sexual offences are concerned, sanctity is attached to the statement of a victim — It has been repeatedly held that evidence of the prosecutrix alone is sufficient for the purpose of conviction if it is found to be reliable, cogent and credible — In the present case, on the basis of the allegations made by the petitioner, two persons were arrested and had to face trial and suffered the ignominy of being involved in a serious offence like rape — Their acquittal, may, to a certain extent, have washed away the stigma, but that is not enough — Hence, no infirmity in the order of the trial court and the High Court to warrant interference (Paras 4 to 8 and 13)
B. Criminal Procedure Code, 1973 — S. 344 — Essential ingredients for invocation — Held, are: (i) Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence; (ii) Court must come to the conclusion that in the interest of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness; and (iii) Before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished — All these conditions are mandatory (Para 10)
C. Criminal Procedure Code, 1973 — S. 344 and S. 340(1) — Purpose of S. 344 — Held, object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to courts to take recourse to S. 340(1) in cases in which they have failed to take action under S. 344 — It was to further arm the court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession — It introduced an additional alternative procedure to punish perjury by the very court before which it was committed — Further held, evil of perjury has assumed alarming proportions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done (Paras 8, 9 and 12)
D. Criminal Procedure Code, 1973 — S. 344 — Salient features of — Stated (Para 9)


Tue Mar 03, 2009 7:56 am
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does this apply to sec 24 maintanenece?
still maintenance can be awarded to wife by the judge or not?


Tue Mar 03, 2009 1:22 pm
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does this apply to sec 24 maintanenece?
It applies to any court proceedings in which affidavit or evidence is given.

still maintenance can be awarded to wife by the judge or not?
Depends, if the judge takes instant cognizance, no. If judge accepts it and posts it for cognizance after evidence, Yes, inetrim maintenance would be granted.


Tue Mar 03, 2009 1:24 pm
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Joined: Sat Feb 11, 2006 4:19 am
Posts: 312
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Hi,

It perfectly matches and applies for my case whereas my Lawyer who is my best family friend is slightly scared of since it may turn POOMARANG on us.

wbr
ramnath

_________________
No real problem has a Solution.
A Good solution can be successfully applied to any problem.
S.RAMNATH


Tue Mar 03, 2009 5:01 pm
Profile YIM

Joined: Wed Feb 04, 2009 7:39 am
Posts: 114
Thanx
my next date is on 9th april. i will try to gather more evidences/ proofs for the same.


Wed Mar 04, 2009 7:06 am
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Joined: Wed Feb 04, 2009 7:39 am
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is there any way to pressurize judge to take instant cognizance of that under 24 maintenence?


Wed Mar 04, 2009 7:13 am
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Location: Delhi (India)
No, there is no way.

Understand, it is an application and not petition.


Wed Mar 04, 2009 9:58 am
Profile YIM

Joined: Wed Oct 31, 2007 5:51 pm
Posts: 280
Location: mumbai
With due respect to Shonee, may I add that private complaint u/s 191 & 192 IPC can be an option, though it may not have the same effect.


Wed Mar 04, 2009 2:39 pm
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Marwah Vs Marwah???

Read it carefully.


Wed Mar 04, 2009 3:58 pm
Profile YIM

Joined: Wed Oct 31, 2007 5:51 pm
Posts: 280
Location: mumbai
Section 190 Cr.P.C. provides that a Magistrate may take cognizance

of any offence (a) upon receiving a complaint of facts which constitute such

offence, (b) upon a police report of such facts, and (c) upon 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

IPO 191: Giving false evidence, judicial perjury

IPO 192: Fabricating false evidence

IPO 193: punishment for offenses u/s 191 & 192 IPO

IPO 194 & 195: Aggravated forms of offenses u/s 191 & 192 IPO



Section 191. Giving false evidence


Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.


Wed Mar 04, 2009 5:04 pm
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Correct Salim, but IPC 191 and 192 are punishable in IPC 193 only


Thu Mar 05, 2009 6:10 am
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Joined: Wed Aug 20, 2008 6:40 am
Posts: 83
Dear Ramnath,

Why are you or your lawyer thinking that filing for perjury against your wife might boomerang on you??

Dear Shonee,

Can you please let us know if there is any risk involved in filing for perjury.

Thank you

PS:
Shonee,
Also can a husband file for perjury in CrPC 125 against wife as the husband has filed(or palns to file) for an RCR. Please note the perjury is for an earlier CrPC 125 case filed by the wife. Please confirm.


Thu Mar 05, 2009 8:13 am
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Joined: Tue Mar 18, 2008 1:44 pm
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Location: Delhi (India)
Risks:

The perjury application is supported by affidavit. Hence there can be a backlash if you file false application.

And no, the perjury application can be filed in the same court in which such a lie was stated under oath. No other court can entertain such an application.

Please read another post on this topic, which I have just posted.


Thu Mar 05, 2009 8:33 am
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Joined: Wed Mar 26, 2008 9:03 am
Posts: 3053
Raghu,
You have a detailed answer in the other Thread just posted by Shonne on this subject.
It should clear all doubts about the law and its usages.


Thu Mar 05, 2009 8:35 am
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This is the latest judgment of Supreme Court giving guidelines to the lower courts in matters of perjury.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NOS. OF 2008
(CRIMINAL MISC. PETITION NOS.8515-8516 OF 2008)



Mahila Vinod Kumar i .....

Petitioner

Versus

State of Madhya Pradesh .....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.



1. Heard learned counsel for the petitioner.



2. Delay condoned.



3. Though, we are not inclined to entertain the special leave

petitions, but we find that there is a need for expressing views

on action to be taken for maliciously setting law into motion.

4. The petitioner lodged a report against two persons at

Pichhore Police Station to the effect that on 28.1.1993

between 6.00 to 7.00 a.m. she was waylaid by them who

dragged her and committed rape on her, one after another.

She claimed to have narrated the incident to her father and

uncle and, thereafter lodged the report at the police station.

On the basis of the report, matter was investigated. The

accused persons were arrested. Charge-sheet was filed. The

accused persons faced trial for alleged commission of offence

punishable under Section 376(2)(g) of the Indian Penal Code,

1860 (in short `the IPC'). The accused persons abjured their

guilt. During trial, the petitioner stated that she had actually

not been raped. As she resiled from the statement made

during investigation, she was permitted to be cross-examined

by the prosecution. She even denied to have lodged the first

information report (Exh.P-1) and to have given any statement

to the police (Exh.P-2). In view of the statement of the

petitioner, the two accused persons were acquitted by

judgment dated 28.11.2001. The Trial Court found that the

2

petitioner had tendered false evidence and had fabricated

evidence against the accused persons with the intention that

such evidence shall be used in the proceedings, and,

therefore, directed cognizance in terms of Section 344 of the

Code of Criminal Procedure, 1973 (in short `the Code') to be

taken against the petitioner. A show-cause notice was issued

and the case was registered against the petitioner who filed

reply to the effect that being an illiterate lady, she had

committed the mistake and may be excused. The Trial Court

found that the petitioner admitted her guilt that she had

lodged false report of rape against the accused. She was,

accordingly, sentenced to undergo three months' simple

imprisonment. Aggrieved by the order, the petitioner filed an

appeal before the Madhya Pradesh High Court, which, by the

impugned order, was dismissed.



5. Stand before the High Court was that being an illiterate

lady, she does not understand law and the particulars of the

offence were not explained to her and, therefore, the appeal

should be allowed. This was opposed by the State on the


3

ground that the petitioner had admitted her guilt before the

Trial Court and, therefore, the conviction is well founded. The

High Court perused the records of the Trial Court and found

that in the show-cause reply she had admitted that she had

told lies all through. The stand that the particulars of the

offence were not explained to her, was found to be equally

untenable, because in the show-cause notice issued, relevant

details were given. In the first information report, and the

statement recorded by the police, she had clearly stated that

she was raped by the accused persons. But in Court she

denied to have stated so. Learned counsel for the petitioner

submitted that the Court imposed 15 days' simple

imprisonment which is harsh. But that is not the end of the

matter. The petitioner filed an application before the High

Court stating that a wrong statement was made before the

High Court that she had already suffered custody for 15 days,

which weighed with the High Court to reduce the sentence.



6. Learned counsel for the petitioner stated that being a girl

of tender age, she was pressurized by her mother and uncle to


4

give a false report. This is at variance with the statement

made in court during trial to the effect that she had not

reported anything to the police. It is a settled position in law

that so far as sexual offences are concerned, sanctity is

attached to the statement of a victim. This Court, has, in

several cases, held that the evidence of the prosecutrix alone

is sufficient for the purpose of conviction if it is found to be

reliable, cogent and credible. In the present case, on the basis

of the allegations made by the petitioner, two persons were

arrested and had to face trial and suffered the ignominy of

being involved in a serious offence like rape. Their acquittal,

may, to a certain extent, have washed away the stigma, but

that is not enough. The purpose of enacting Section 344,

Cr.P.C. corresponding to Section 479-A of the Code of

Criminal Procedure, 1898 (hereinafter referred to as `the Old

Code') appears to be further arm the Court with a weapon to

deal with more flagrant cases and not to take away the

weapon already in its possession. The object of the legislature

underlying enactment of the provision is that the evil of

perjury and fabrication of evidence has to be eradicated and

5

can be better achieved now as it is open to the courts to take

recourse to Section 340(1) (corresponding to Section 476 of

the Old Code) in cases in which they are failed to take action

under Section 344 Cr.P.C.



7. This section introduces an additional alternative

procedure to punish perjury by the very Court before which it

is committed in place of old Section 479 A which did not have

the desired effect to eradicate the evils of perjury. The salient

features of this new provision are:

(1) Special powers have been conferred on two specified

Courts, namely Court of Session and Magistrate of the

First Class, to take cognizance of an offence of perjury

committed by a witness in a proceeding before it instead

of filing a complaint before a Magistrate and try and

punish the offender by following the procedure of

summary trials. For summary trial, see Ch. 21.




6

(2) This power is to be exercised after having the matter

considered by the Court only at the time of delivery of the

judgment or final order.

(3) The offender shall be given a reasonable opportunity of

showing cause before he is punished.

(4) The maximum sentence that may be imposed is 3

month's imprisonment or a fine up to Rs.500 or both.

(5) The order of the Court is appealable (vide S. 351).

(6) The procedure in this section is an alternative to one

under Sections 340-343. The Court has been given an

option to proceed to punish summarily under this

section or to resort to ordinary procedure by way of

complaint under Section 340 so that, as for instance,

where the Court is of opinion that perjury committed is

likely to raise complicated questions or deserves more

severe punishment than that permitted under this

section or the case is otherwise of such a nature or for

some reasons considered to be such that the case should

be disposed of under the ordinary procedure which




7

would be more appropriate, the Court may chose to do so

[vide sub-section (3)].

(7) Further proceedings of any trial initiated under this

section shall be stayed and thus, any sentence imposed

shall also not be executed until the disposal of an appeal

or revision against the judgment or order in the main

proceedings in which the witness gave perjured evidence

or fabricated false evidence [vide sub-section (4)].




8. For exercising the powers under the section the Court at

the time of delivery of judgment or final order must at the first

instance express an opinion to the effect that the witness

before it has either intentionally given false evidence or

fabricated such evidence. The second condition is that the

Court must come to the conclusion that in the interests of

justice the witness concerned should be punished summarily

by it for the offence which appears to have been committed by

the witness. And the third condition is that before

commencing the summary trial for punishment the witness



8

must be given reasonable opportunity of showing cause why

he should not be so punished. All these conditions arc

mandatory. [See Narayanswamy v. State of Muharashtra,

(1971) 2 SCC 182].



9. The object of the provision is to deal with the evil perjury

in a summary way.



10. The evil of perjury has assumed alarming propositions in

cases depending on oral evidence and in order to deal with the

menace effectively it is desirable for the courts to use the

provision more effectively and frequently than it is presently

done.



11. In the case at hand, the court has rightly taken action

and we find nothing infirm in the order of the Trial Court and

the High Court to warrant interference. The special leave

petitions are, accordingly dismissed.




9

................................J.
(Dr. ARIJIT PASAYAT)



................................J.
(P. SATHASIVAM)
New Delhi:
July 11, 2008




10


Thu Mar 05, 2009 9:06 pm
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Joined: Tue Oct 07, 2008 7:13 am
Posts: 1
Also i am posting one more judgment of Karnataka High Court

HC (Kar) Perjury - Two irreconcilable statements proves prejuary
Read in this Judgment:

6. I have already referred to Illustration (b) of S. 236 Cr.P.C. which states that a person may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of the contradictory statements was false. Sri Vijaya Shankar has also relied on Umrao Lal v. State, , which is an authority for the proposition that in a prosecution under S. 193 IPC. if the prosecution succeeds in proving that the accused in the witness box deliberately made two statements which are so contradictory and irreconcilable with each other, that both cannot possibly be true, he can be convicted of perjury even without its being proved which one of them was not true.


and

"giving false evidence in any stage of the judicial proceeding". What is a 'judicial
proceeding' is defined in S. 4(m) Cr.P.C. it reads thus:

"'Judicial proceeding' includes any proceeding in the course of which evidence is or may be legally taken on oath."



Gangawwa vs State Of Mysore on 17/2/1967

ORDER

1. The petitioner has been convicted of an offence under section 193 I.P.C. by the Judicial Magistrate, Ist Class, Bijapur, and sentenced to suffer one year's R. I. In the appeal filed by the petitioner against the said conviction and sentence to the Sessions Judge of Bijapur, the
conviction was confirmed, but the sentence was reduced to three months' R. I. The petitioner has come up in revision to this Court questioning the correctness and legality of the said order of the Sessions Judge confirming her conviction.

2. In P. R. Case No. 5/1963, in a proceeding under section 512 Cr.P.C. the petitioner examined as a witness by the Judicial Magistrate, I Class, Bagewadi, and made a certain statement on oath. When the petitioner was examined in the committal proceedings in P. R. Case No.
2/65, she made another statement wholly irreconcilable and contradictory to the previous statement. After issuing show cause notice, the learned Magistrate directed that a complaint be filed against the petitioner under S. 193 IPC. After the trail, the Judicial Magistrate, I Class, Bijapur, convicted her of an offence under S. 193, IPC.

3. Sri Malimath learned counsel on behalf of the petitioner, has contended that the charge framed against the petitioner is defective. The charge simply says that either of the statements made by her in the two different proceedings is false and it does not say which particular statement made by her is false. He also argues that the charge framed is not consistent with the complaint or the committal order in the case. I see no force in the said contentions.

4. It is not necessary for the charge to state specifically which of the statements made by the petitioner is false. As pointed out by Sri Vijaya Shankar, learned counsel appearing on behalf of the State, it is open to the Court under section 236 Cr.P.C. to frame alternative charges against a person. Illustration (b) to section 236 Cr.P.C. states that a person may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of those contradictory statements is false. The charge framed by the Court must depend on the evidence in the case and does not depend on either the complaint or the order passed in the committal proceedings.

Further, there is no inconsistency between the complaint filed and the charge framed in this case. the complaint sets out the contradictory statements made by the petitioner and states that the answers given by her go to show that she has perjured. In any case, even assuming there
are defects in the charge, S. 225 Cr.P.C. states, that no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

5. Sri Malimath has next contended that the prosecution has failed to establish which of the statements made by the petitioner is false and therefore the petitioner cannot be convicted under S. 193 IPC. He has strongly relied on Emperor v. Ningappa Ramappa Kurbar, 43 Bom LR 864 :
(AIR 1941 Bom 408) in support of his said contention. The facts of that case were entirely different from the facts of the present case. Their Lordships were considering there the question whether it was expedient to prosecute a person under S. 476, Cr.P.C. and not under S. 479A,
Cr.P.C. They were considering the statement made by the accused under
S. 164 Cr.P.C. in the committal Court.

6. I have already referred to Illustration (b) of S. 236 Cr.P.C. which states that a person may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of the contradictory statements was false. Sri Vijaya Shankar has also relied on Umrao Lal v. State, , which is an authority for the proposition that in a prosecution under S. 193 IPC. if the prosecution succeeds in proving that the accused in the witn ess box deliberately made two statements which are so contradictory and
irreconcilable with each other, that both cannot possibly be true, he can be convicted of perjury even without its being proved which one of them was not true.

7. Sri Malimath also contends that the examination of the petitioner by the learned Magistrate under S. 342 Cr.P.C., is not according to law and it has gravely prejudiced the petitioner. He has relied on Ajmer Singh v. State of Punjab, and Ramashankar Singh v. State of W. B., . He argues that the questions put by the Court to the petitioner were so long, involved and confusing that
it was not possible for the petitioner to understand the same and give proper answers. If the petitioner had been properly questioned, she would have come out with an explanation. There is no doubt, the question put by the Magistrate are long and complicated. But the point
for consideration is whether the petitioner has been prejudiced in her defence and whether it has caused failure of justice.

8. In Moseb Kaka v. State of W. B., , their Lordships, in paragraph 8, page 540, have observed as follows:

"There can be no doubt that this is very inadequate compliance with the salutary provisions of S. 342, Cr.P.C. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing Tara Singh v. State, on a due and fair compliance with the terms of S. 342 Cr.P.C. But it is also
well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342 Cr.P.C. It is settled that clear prejudice must be shown. This Court has clarified
the position in relation to cases where accused is represented by Counsel at the trial and in appeal. It is up to the accused or his Counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice."

The charge which the petitioner was upon to meet was a simple one. The case was that she made two totally contradictory statements on oath in P. R. Case No. 5/63 and P. R. Case No. 2 of 1965. The petitioner denied that she made the statement alleged in P. R. Case No 5/63. Hence, I am of opinion that it cannot be said that the petitioner has been prejudiced and it has resulted in miscarriage of justice.

9. Sri Malimath has further contended that the statement under S. 512 Cr.P.C. made by the petitioner cannot be made use of when the petitioner is alive and can give evidence. Further, he contends S. 512 Cr.P.C. is only a mode of recording evidence. It is neither an enquiry nor a trial. The petitioner was not a witness when her statement was recorded under S. 512 Cr.P.C. He also argues that a complaint could not be made under S. 479A Cr. P.C. by the Committal Court. It could be made only by the Sessions Court to whom the accused is committed. There is no final order disposing of the case when the accused is committed to the Court of Session for trial. Committal proceedings are not independent proceedings, but only a stage of the judicial proceedings before the Sessions Judge who and it is only the Sessions Judge who has
jurisdiction to file a complaint under S.479-A Cr.P.C. If the Committal Court and the Sessions Court both have jurisdiction to pass an order under S. 479A, this would result in conflicting orders.

9A. It may be pointed out that the contentions mentioned above have not been urged either in the trial Court or in the appeal before the Sessions Court. This Court has not got the benefit of the views of the Courts below on these questions. Since Sri Malimath argues that they are questions of law and could be raised revision, I will deal with these points shortly.

10. With regard to the contention that the statement under S. 512 Cr.P.C. cannot be made use of when the petitioner is alive and could give evidence, it may be pointed out that this has reference only to the absconding accused in the said proceedings. There is no prohibition for making use of a statement given by the petitioner under section 512 Cr.P.C. against herself in proceedings instituted under section 193 IPC. With regard to the contention that S. 512 proceedings are neither inquiry, nor trial, it may be pointed out that S. 479A Cr.P.C. does not refer to any inquiry or trial. All that it states is "giving false evidence in any stage of the judicial proceeding". What is a 'judicial proceeding' is defined in S. 4(m) Cr.P.C. it reads thus:

"'Judicial proceeding' includes any proceeding in the course of which evidence is or may be legally taken on oath."

Explanation 2 to S. 193 IPC. states that even an investigation directed by law, preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Explanation 3 to the same section also
states that an investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding though that investigation may not take place before a Court of Justice. It is therefore clear that both under the Code of Criminal Procedure and the Indian Penal Code, a proceeding under section 512 Cr.P.C. comes within the definition of 'judicial proceeding.'

11. Sri Malimath has also contended that when a person is examined under S. 512 Cr.P.C. he is not deposing as a witness. He has relied on in re: Ramalingam, AIR 1965 Mad 100 in support of his contention. What was decided in that case was that section 479A, Cr.P.C. applied only to person appearing before Court as witnesses and does not apply to a casewhere a person does not appear as a witness before Court but only files an affidavit without entering the box. Here, it cannot disputed that the petitioner had appeared before Court in both the proceedings as a
witness.

12. Sri Malimath has argued that committal proceedings are only a stage of the judicial proceedings before the Sessions Court and that only the Sessions Judge has got the power to take proceedings under S. 479A, Cr.P.C. and not the Committal Court. He has strongly relied on the observations made by their Lordships of the Supreme Court in Shabir Hussain Bholu v. State of Maharashtra, in support of his contention. The question which their Lordships were considering in the said case was, in a case where proceedings under S. 479A Cr.P.C. should have been taken, whether it was open to the Court to proceed under S. 476 Cr.P.C. Their Lordships held that the provisions of S. 476 are totally excluded where the offence is of the kind specified in S.
479A. In that particular case, the accused had made conflicting statements before the Committal Court and the Sessions Court.
Their Lordships held that the committal proceedings were not independent proceedings and it was only the Sessions Court which decide whether proceedings under S. 479A could be taken against the accused. It may be pointed out in this case, the petitioner was never examined
in the Sessions Court. Hence the question of Sessions Court taking proceedings S. 479A did not arise. The question of conflicting orders by the Sessions Court and the Committal Court also does not arise in the case.

13. There is equally no force in the contention of Sri Malimath that in the committal proceedings there is no final order disposing of such proceedings. So far as the Committal Court is concerned once it commits an accused to the Sessions Court, there is final disposal of the proceedings before it. In Dastagiramma v. State, it has been held that committal proceedings are final so far as they result in discharge or in committal. Such an order would be final order disposing of such proceedings within the meaning of S. 478A Cr. P.C.

14. Finally, Sri Malimath has contended that the statement made by the petitioner was not intentional and that she is an illiterate woman. It is not possible to accept this contention. The learned Magistrate, who recorded the evidence in both the proceedings has been examined as a
witness. He has stated that the petitioner after being administered oath, made the above mentioned contradictory statements. The evidence given by her was read over and explained to her and she admitted the statements to be correct. There is, therefore, no force in any of the
contentions urged by Sri Malimath on behalf of the petitioner.

15. In the result, there is no merit in this revision petition and the same is dismissed.

16. Petition dismissed.


Fri Sep 04, 2009 5:24 pm
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Joined: Sat Mar 01, 2008 2:50 pm
Posts: 21
In charge sheet the 498a girl has made contradictory statement to one on which 340 is going on.

We shall present those documents also in the 340 case.

How can she say that no one came to visit her in hospital at time of birth of child u/s 9 HMA then in charge sheet she says that gifts were given during visit at time of child birth.

This is repeated on 3 pages.

I think this girl has made so much contradictory statements that no witness is needed to prove that she is habitual liar.


Thu Oct 15, 2009 9:39 am
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Joined: Sat Mar 01, 2008 2:50 pm
Posts: 21
This judgement can also be used in 340:-

We are giving this in case of my brother.


ITEM NO.101(PH) COURT NO.11 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 5239 OF 2002
DALIP SINGH Appellant (s)
VERSUS
STATE OF U.P. & ORS. Respondent(s)

(With appln(s) for exemption from filing O.T.,directions and office
report )

Date: 03/12/2009 This Appeal was called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE ASOK KUMAR GANGULY

For Appellant(s)
Mr. Shambhu Prasad Singh, Adv.
Mr. Prashante Jha, adv.
Ms. Manjula Gupta,Adv.
For Respondent(s)
Mr. L.K. Pandey,Adv.
Mr. Pramod Swarup, Sr.Adv.
Mr. S.K. Dwivedi, Adv.
Mr. Amit Singh, adv.
Ms. Sushma Verma, Adv.
Mr. Chandra Prakash Pandey ,Adv
Dr. Krishan Singh Chauhan ,Adv
Mr. K.C. Lamba, adv.
Mr. Chand Kiran, Adv.
Mr. Kartar Singh, Adv.

UPON hearing counsel the Court made the following
O R D E R
This appeal is dismissed in terms of the signed
reportable order.


(Sukhbir Paul Kaur) (Mithlesh Gupta)
Court Master Court Master

(Signed reportable order is placed on the file)
REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO.5239 OF 2002


DALIP SINGH Appellant(s)

Versus

STATE OF U.P. & ORS. Respondent(s)


O R D E R




1. For many centuries, Indian society cherished two basic

values of life i.e., `Satya' (truth) and `Ahimsa' (non-violence).

Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to

ingrain these values in their daily life. Truth constituted an

integral part of justice delivery system which was in vogue in pre-

independence era and the people used to feel proud to tell truth in

the courts irrespective of the consequences. However, post-

independence period has seen drastic changes in our value system.

The materialism has over-shadowed the old ethos and the quest for

personal gain has become so intense that those involved in

litigation do not hesitate to take shelter of falsehood,

misrepresentation and suppression of facts in the court proceedings.

In last 40 years, a new creed of litigants has cropped up. Those

who belong to this creed do not have any respect for truth. They

shamelessly resort to falsehood and unethical means for achieving

their goals. In order to meet the challenge posed by this new creed

of litigants, the courts have, from time to time, evolved new rules

and it is now well established that a litigant, who attempts to

pollute the stream of justice or who touches the pure fountain of

justice with tainted hands, is not entitled to any relief, interim

or final.



2. In Hari Narain v. Badri Das AIR 1963 SC 1558, this Court

adverted to the aforesaid rule and revoked the leave granted to the

appellant by making the following observations:

"It is of utmost importance that in making material
statements and setting forth grounds in applications for
special leave made under Article 136 of the Constitution,
care must be taken not to make any statements which are
inaccurate, untrue and misleading. In dealing with
applications for special leave, the Court naturally
takes statements of fact and grounds of fact contained
in the petitions at their face value and it would be
unfair to betray the confidence of the Court by making
statements which are untrue and misleading. Thus, if at
the hearing of the appeal the Supreme Court is satisfied
that the material statements made by the appellant in his
application for special leave are inaccurate and
misleading, and the respondent is entitled to contend that
the appellant may have obtained special leave from the
Supreme Court on the strength of what he characterizes as
misrepresentations of facts contained in the petition for
special leave, the Supreme Court may come to the
conclusion that in such a case special leave granted to
the appellant ought to be revoked."



3. In Welcome Hotel and others v. State of Andhra Pradesh and

others etc. AIR 1983 SC 1015, the Court held that a party which has

misled the Court in passing an order in its favour is not entitled

to be heard on the merits of the case.


4. In G. Narayanaswamy Reddy and others v. Governor of

Karnataka and another AIR 1991 SC 1726, the Court denied relief to

the appellant who had concealed the fact that the award was not made

by the Land Acquisition Officer within the time specified in Section

11-A of the Land Acquisition Act because of the stay order passed by

the High Court. While dismissing the special leave petition, the

Court observed:

"Curiously enough, there is no reference in the Special
Leave Petitions to any of the stay orders and we came to
know about these orders only when the respondents appeared
in response to the notice and filed their counter
affidavit. In our view, the said interim orders have a
direct bearing on the question raised and the non-
disclosure of the same certainly amounts to suppression of
material facts. On this ground alone, the Special Leave
Petitions are liable to be rejected. It is well settled
in law that the relief under Article 136 of the
Constitution is discretionary and a petitioner who
approaches this Court for such relief must come with frank
and full disclosure of facts. If he fails to do so and
suppresses material facts, his application is liable to be
dismissed. We accordingly dismiss the Special Leave
Petitions."



5. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath

(dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that

where a preliminary decree was obtained by withholding an important

document from the court, the party concerned deserves to be thrown

out at any stage of the litigation.



6. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC

449, it was held that in exercising power under Article 226 of the

Constitution of India the High Court is not just a court of law, but

is also a court of equity and a person who invokes the High Court's

jurisdiction under article 226 of the Constitution is duty bound to

place all the facts before the court without any reservation. If

there is suppression of material facts or twisted facts have been

placed before the High Court then it will be fully justified in

refusing to entertain petition filed under Article 226 of the

Constitution. This Court referred to the judgment of Scrutton, L.J.

in R v Kensington Income Tax Commissioners (1917) 1 K.B. 486, and

observed:

"In exercising jurisdiction under Article 226 of the
Constitution, the High Court will always keep in mind the
conduct of the party who is invoking such jurisdiction.
If the applicant does not disclose full facts or
suppresses relevant materials or is otherwise guilty of
misleading the Court, then the Court may dismiss the
action without adjudicating the matter on merits. The
rule has been evolved in larger public interest to deter
unscrupulous litigants from abusing the process of Court
by deceiving it. The very basis of the writ jurisdiction
rests in disclosure of true, complete and correct facts.
If the material facts are not candidly stated or are
suppressed or are distorted, the very functioning of the
writ courts would become impossible."



7. In A.V. Papayya Sastry and others v. Government of A.P. and

others, AIR 2007 SC 1546, the Court held that Article 136 does not

confer a right of appeal on any party. It confers discretion on

this Court to grant leave to appeal in appropriate cases. In other

words, the Constitution has not made the Supreme Court a regular

Court of Appeal or a Court of Error. This Court only intervenes

where justice, equity and good conscience require such intervention.



8. In Sunil Poddar & Ors. v Union Bank of India (2008) 2 326,

the Court held that while exercising discretionary and equitable

jurisdiction under Article 136 of the Constitution, the facts and

circumstances of the case should be seen in their entirety to find

out if there is miscarriage of justice. If the appellant has not

come forward with clean hands, has not candidly disclosed all the

facts that he is aware of and he intends to delay the proceedings,

then the Court will non-suit him on the ground of contumacious

conduct.



9. In K.D. Sharma v. Steel Authority of India Ltd. and others

(2008) 12 SCC 481, the court held that the jurisdiction of the

Supreme Court under Article 32 and of the High Court under Article

226 of the Constitution is extraordinary, equitable and

discretionary and it is imperative that the petitioner approaching

the Writ Court must come with clean hands and put forward all the

facts before the Court without concealing or suppressing anything

and seek an appropriate relief. If there is no candid disclosure of

relevant and material facts or the petitioner is guilty of

misleading the Court, his petition may be dismissed at the threshold

without considering the merits of the claim. The same rule was

reiterated in G. Jayshree and others v. Bhagwandas S. Patel and

others (2009) 3 SCC 141.



10. This appeal, which is directed against order dated

21.5.2001 passed by the Allahabad High Court is illustrative of how

unscrupulous litigants can mislead the authorities entrusted with

the task of implementing the provisions of U.P. Imposition of

Ceiling on Land Holdings Act, 1960 (for short, "the Act") and the

courts for retaining possession of the surplus land. The tenure-

holder Praveen Singh did not file statement in terms of Section

9(2-A) of the Act in respect of his holding as on 24.1.1971. After

about four years, the Prescribed Authority issued notice dated

29.11.1975 under Section 10(2) of the Act and called upon Shri

Praveen Singh to show cause as to why the statement prepared under

Section 10(1) of the Act may not be taken as correct and his land

may not be declared surplus accordingly. A copy of the statement

was sent to Shri Praveen Singh along with the notice in C.L.H. Form

No.4. For the sake of convenient reference, the notice is

reproduced below:

"C.L.H. FORM NO. 4

(See Rule 8)

(Form of Notice under Section 10(2) of the imposition of
Ceiling on Land Holdings Act, 1961)

To,
Name of tenure-holder Sri Praveen Singh
With parentage s/o. Shri Raghubir Singh and
Address r/o Village Tisotara, P.O. Khas, Pargana
Kirat Pur, Tehsil Najibabad, District
Bijnor.

Whereas you have failed to submit a statement/have
furnished incomplete/incorrect statement in respect of all
your holdings in the State of Uttar Pradesh including
holdings of your family members with all the required
particulars within the time mentioned in the notice in
C.L.H. Form 1, published under Section 9;

And whereas the statement of all holdings held by you
in the State on 8th June, 1973, statement showing proposed
ceiling area applicable to you and the proposed surplus
land have been prepared under sub-section (1) of Section
10, they are sent to you herewith and you are hereby
called upon to show cause within a period of 15 days from
the date of service of this notice, why the said statement
be not taken as correct.

On your failure to dispute the correctness of the
statements in any court, within the time allowed, the
aforesaid statement shall be treated as final and ceiling
area applicable to you and the surplus land shall be
determined accordingly.

Given under my hand and seal of the Court this day of
29-11-1975.

S/d-
Signature of the Prescribed Authority of the Sub-
Division Prescribed Authority
Tehsil Najibabad."

11. The notice was delivered to Shri Praveen Singh on

3.12.1975, but he neither filed any objection to the proposed

determination of his surplus land nor sought extension of time for

the said purpose. After service of notice, the Prescribed Authority

adjourned the case on 10.12.1975 and again on 19.12.1975 apparently

with the hope that the tenure-holder may file objection to the

statement prepared under Section 10(1). This is evident from the

proceeding sheets of the two dates, which are reproduced below:

Proceedings dated 10.12.1975

10.12.1965 File received after service of notice on
the tenure-holder on 3.12.1975.

It is ordered that the file be put up on
19.12.1975 after receipt of objections.

Sd/-
Prescribed Authority
Proceedings dated 19.12.1975

19.12.1975 File put up. The tenure-holder has not
filed any objection despite service.

It is ordered that the file be put up for
ex-parte orders on 27.12.1975.
Sd/-

Prescribed Authority"



12. On 27.12.1975, the Prescribed Authority noted that Shri

Praveen Singh has not filed any objection and declared that 18.22

acres of irrigated land was surplus in the hands of the tenure-

holder. After six months and twelve days, Shri Praveen Singh

submitted an application dated 8.7.1976 along with what was termed

as an affidavit before the Prescribed Authority and prayed that ex

parte order dated 27.12.1975 may be set aside and he may be given

opportunity to file objections and tender evidence. The Prescribed

Authority rejected the application on the same day i.e. 8.7.1976 by

observing that no valid ground has been made out for reconsidering

the matter after six months. The appeal preferred by Shri Praveen

Singh against the order of the Prescribed Authority was dismissed by

Additional Commissioner (Judicial), Allahabad (Appellate Authority)

in default because no one appeared on the date of hearing. The

restoration application filed by Shri Praveen Singh was dismissed on

27.8.1980. He then challenged the orders of the Prescribed

Authority and Appellate Authority in Writ Petition No. 8342/1980,

which was allowed by the High Court and the matter was remitted to

the Appellate Authority with a direction to decide the application

of Shri Praveen Singh afresh in accordance with law.



13. In compliance of the direction given by the High Court, the

Appellate Authority reconsidered the appeal of Shri Praveen Singh

but dismissed the same on the ground that the tenure-holder had not

filed an application under Section 5 of the Limitation Act for

condonation of the delay and even in the application filed for

setting aside the ex parte order, no cause was shown for the delay.

The Appellate Authority also observed that the tenure-holder had not

denied receipt of notice dated 29.11.1975 issued under Section 10(2)

of the Act, but did not file any objection till the passing of ex

parte order on 27.12.1975 and that his assertion of having come to

know of the ex parte order from Lekhpal Halqa on 7.7.1976 is not

believable. It appears that after remand of the matter by the High

Court, Shri Praveen Singh died and, therefore, his legal

representatives (including the appellant herein) were substituted in

his place.



14. The legal representatives of Shri Praveen Singh jointly filed

Civil Miscellaneous Writ Petition No. 22790/1990 and prayed for

quashing of orders dated 27.12.1975, 8.7.1976, 7.8.1990 passed by

the Prescribed Authority and the Appellate Authority respectively.

They also prayed for issue of a direction to the Appellate Authority

to remand the case to the Prescribed Authority for entertaining

their objections. In paragraph 3 of the writ petition, the

following statement was made:

"That the petitioner's late father, against whom the
proceedings had been initiated under Section 10(2) of
the Ceiling Act, filed application on 8.7.1976
supported by an affidavit stating therein clearly that
he was seriously ill for about ten months as such he
was not in a position to file objection, and as a
matter of fact he did not have any knowledge of the
date of the proceedings that were being conducted
before the prescribed authority. True copy of the
application dated 8.7.1976 of petitioners' late father
is annexed herewith as Annexure 2. True copy of the
affidavit filed in support of the application dated
8.7.1976 of the petitioners' father is annexed herewith
as annexure 3."

(Emphasis added)



15. By an order dated 7.9.1990, the learned Single Judge of the

Allahabad High Court stayed the operation of the orders passed by

the Prescribed Authority and the Appellate Authority. The interim

order remained operative till 21.5.2001 that is the date on which

the writ petition was finally dismissed and during the interregnum

the appellant continued to enjoy the property.



16. In the special leave petition filed against the order of the

High Court, notice was issued on 12.10.2001, but the appellants

prayer for stay was declined. Thereafter, the surplus land of the

tenure-holder was distributed among the landless persons who were

joined as parties pursuant to order dated 27.3.2006 passed in I.A.

No. 9/2004.



17. After service of notice, respondent Nos. 1 to 3 filed

counter in the form of an affidavit of Shri Pradip Kumar Singh,

Additional Tehsildar, District Bijnor, U.P. In his affidavit, Shri

Pradip Kumar gave details of the steps taken by the Prescribed

Authority in terms of Section 10(1) and 10(2) of the Act and made a

categorical assertion that notice issued on 29.11.1975 was duly

served upon Shri Praveen Singh on 3.12.1975. This is evident from

paragraphs 4(iv) and (v) of the counter affidavit read as under:

"(iv) That the averments of facts made in the list of
dates against date 7.7.1976 are not admitted being
incorrect. The notice in CLH Form No. 4 having been
served on the tenure-holder on 3.12.1975, it was for him
to have filed his objection. It was for the tenure-holder
to have managed his affairs. It is not for a Court or an
Authority to communicate to the tenure-holder each and
every order passed by it once service of the notice is
complete, the Act does not require that each and every
date of proceedings and the copy or information about the
final order ex parte or otherwise be served on him. The
tenure-holder avoided to file his objections since he had
none. The statement of surplus land is prepared by the
revenue authorities in accordance with the provisions of
the Act which is prepared on the basis of revenue records
of land held by a tenure-holder in his name and there is
`Presumption of correctness of the revenue record.'

(v) That the averments of fact in list of date
against date 8.7.1976 are not admitted as stated. It is
submitted that an application dated 8.7.1976 filed by the
tenure-holder did not dispute service of notice in CLH
Form No. 4 dated 29.11.1975. The application was of a
general nature. If a tenure-holder having been asked to
file objections within 15 days of the date of service of
him `chooses not to do so', would proceed to a presumption
that he has nothing to say. Section 11 o the Act provides
that where a tenure-holder chooses not to dispute and not
to file any objection to the statement prepared by the
Prescribed Authority under Section 10 of the Act within
the stipulated period, the Prescribed Authority `shall'
accordingly determine the surplus land of the tenure-
holder. Sub-section (2) of Section 11 of the Act further
provides that where an application is made by a tenure-
holder within thirty days of the date of an order under
sub-section (11) of the Act, that being a statutory duly
cast on the Prescribed Authority. In the present case the
Prescribed Authority after passing order dated 27.12.1975
fixed the next date as 27.1.1976 i.e. after 30 days and it
is only on 27.1.1976 that the Prescribed Authority sent
notification regarding publication of surplus land in
official Gazette which was so published on 5.6.1976."



18. Shri Sunil Kumar Singh, son of the appellant Dalip Singh

and grandson of late Shri Praveen Singh filed rejoinder affidavit

dated 18th February, 2002. In paragraph 3 of the rejoinder affidavit

Shri Sunil Kumar Singh made the following statement :-

"That it is denied categorically that the father of the
petitioner had ever received the notice dated
29.11.1975 along with the statement of surplus land,
prepared under section 10(1) of the Act. It is humbly
stated that father of the petitioner could not file any
show cause without going through the above referred
statement prepared under Section 10(1) of the Act."



19. We have heard learned counsel for the parties and scrutinized

the record. In our opinion, the appeal is liable to be dismissed

only on the ground that the tenure-holder Shri Praveen Singh did not

state correct facts in the application filed by him on 8.7.1976

before the Prescribed Authority for setting aside the ex parte order

and the appellant did not approach the High Court with clean hands

inasmuch as, by making a misleading statement in paragraph 3 of the

writ petition, an impression was created that the tenure-holder did

not know of the proceedings initiated by the Prescribed Authority.

By making the said statement, the appellant succeeded in persuading

the High Court to pass an interim order which resulted in

frustrating the efforts made by the concerned authority to

distribute the surplus land among landless persons. Even before

this Court, a patently false statement has been made in the

rejoinder affidavit on the issue of receipt of notice dated

29.11.1975 by Shri Praveen Singh.



20. A perusal of application dated 8.7.1976 submitted by Shri

Praveen Singh for setting aside ex parte order dated 27.12.1975

passed by the Prescribed Authority makes it clear that he had

pleaded his continuous illness for ten months as the cause for his

inability to file objection. In paragraph 2 of the application,

Shri Praveen Singh made a suggestive assertion that he had no

knowledge of the proceedings initiated by the Prescribed Authority

and he came to know about the case having been decided ex parte only

on 7.7.1976 when he went to Lekhpal to procure memo. There was not

even a whisper in the application that notice dated 29.11.1975

issued by the Prescribed Authority under Section 10(2) of the Act

had not been served upon him and on that account he could not file

objections within 15 days. The application filed by Shri Praveen

Singh was not supported by any medical certificate or other evidence

which could prima facie establish that he was really sick for ten

months. This is the reason why the Prescribed Authority refused to

reconsider order dated 27.11.1975 and the Appellate Authority

declined to entertain his prayer for remand of the case to the

Prescribed Authority for the purpose of fresh determination of

surplus area case. Notwithstanding this, in the writ petition filed

before the High Court a misleading statement was made that due to

serious illness, Shri Praveen Singh could not file objection and, as

a matter of fact, he did not have any knowledge of the dates of

proceedings which were conducted by the Prescribed Authority. In

view of that statement, the learned Single Judge of the High Court

felt persuaded to stay the orders passed by the Prescribed Authority

and Appellate Authority which, as mentioned above, resulted in

frustration of the action to be taken by the concerned authority for

distribution of the surplus land to landless persons for a good

period of more than eleven years and enabled the heirs of Shri

Praveen Singh to retain possession of the surplus land and enjoy the

same. Before the High Court also, no evidence was produced in

support of the assertion regarding serious illness of Shri Praveen

Singh. Insofar as this Court is concerned, Shri Sunil Kumar Singh,

grandson of Shri Praveen Singh and son of the appellant, boldly made

a false statement that his grandfather did not receive notice dated

29.11.1975 along with the statement of surplus land prepared under

Section 10(1) and he could not file any show cause without going

through the statement. We are amazed at the degree of audacity with

which Shri Sunil Kumar Singh could make a patently false statement

on oath.



21. From what we have mentioned above, it is clear that in this

case efforts to mislead the authorities and the courts have

transmitted through three generations and the conduct of the

appellant and his son to mislead the High Court and this Court

cannot, but be treated as reprehensible. They belong to the

category of persons who not only attempt, but succeed in polluting

the course of justice. Therefore, we do not find any justification

to interfere with the order under challenge or entertain the

appellant's prayer for setting aside the orders passed by the

Prescribed Authority and the Appellate Authority.


22. In the result, the appeal is dismissed. We would have saddled

the appellants with exemplary costs but, keeping in view the fact

that possession of the surplus land was taken in 2002 and the same

has been distributed among landless poor persons, we refrain from

doing so.

.......................J.
[G.S.Singhvi]



.......................J.
[Asok Kumar Ganguly]
New Delhi
December 3, 2009


Wed Dec 23, 2009 11:26 am
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Joined: Wed Oct 31, 2007 5:51 pm
Posts: 280
Location: mumbai
Hi!
I am trying to trace this order on the Supreme Court website.
Can you tell me where to look ??


Wed Dec 23, 2009 5:52 pm
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Joined: Sat Mar 01, 2008 2:50 pm
Posts: 21
I took it from SC site only & pasted it completely without any edition.

Try below link:

http://courtnic.nic.in/courtnicsc.asp


Thu Dec 24, 2009 10:22 am
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Joined: Wed Oct 31, 2007 5:51 pm
Posts: 280
Location: mumbai
Thanx. Shonee has mentioned elsewhere that it is yet to be uploaded.
The observations can certainly be used as binding precedent in 340 applications.


Thu Dec 24, 2009 2:14 pm
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