ASHOK KUMAR AGGARWAL Vs UNION OF INDIA .
Bench: B.S. CHAUHAN,S.A. BOBDE
Case number: Crl.A. No.-001842-001842 / 2013
Diary number: 23281 / 2010
Advocates: Vs
GAUTAM NARAYAN
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1842 OF 2013
Ashok Kumar Aggarwal …Appellant
Versus
Union of India & Ors. ..Respondents
J U D G M E N T
Dr. B.S. Chauhan, J.
1. This appeal has been preferred against the impugned judgment
and final order dated 16.4.2010 passed by the High Court of Delhi at
New Delhi in Criminal Miscellaneous Application No. 3314 of 2006
in Writ Petition (Crl.) No. 938 of 2001, by which the application filed
by the appellant to proceed against respondent no. 5 under Section
340 read with Section 195(1)(b) of the Code of Criminal Procedure,
1973 (hereinafter referred to as `Cr.P.C.’) has been dismissed.
2. Facts and circumstances giving rise to this appeal are that:
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A. The appellant had filed Writ Petition (Criminal) No. 938 of
2001 before the High Court of Delhi seeking transfer of investigation
from respondent nos. 3, 4 and 5 to any other senior officer of Central
Bureau of Investigation (hereinafter to referred as `CBI’), as the said
respondents had been abusing their investigating powers and adopted
unfair and improper means in RC No. S19/E0006/99 dated 7.12.1999.
B. The court made order dated 4.4.2002, on the submission of
counsel for the respondent No. 5 that the investigation report had been
finalised in the said RC case and no further investigation was required
to be done, directed the competent authority of the CBI to file an
affidavit in this regard by 5th April, 2002.
C. An affidavit was filed by respondent No. 5 on 5.4.2002, being
investigating officer, wherein it had been stated that the investigation
was complete and that no further investigation was required to be
done and a final report Part-1 (FR-1) was submitted by him on
11.1.2002 to the Superintendent of Police (in short `SP’).
D. However, coming to know that certain witnesses had been
examined by the CBI subsequent thereto, the appellant preferred an
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application under Section 340 r/w 195(1)(b) Cr.P.C., which has been
dismissed by the High Court vide impugned judgment and order.
Hence, this appeal.
3. Shri Ram Jethmalani, learned senior counsel appearing on
behalf of the appellant, has submitted that not only a statement was
made, but even an affidavit had been filed by respondent no. 5 before
the High Court that the investigation was complete and an
investigative report had been finalised by him and no further
investigation was required. Therefore, if further witnesses had been
examined and certain evidence had been collected, it is evident that
the statement so given and affidavit filed by respondent no. 5 was just
to mislead the court and therefore, the court ought to have proceeded
against him allowing the application filed by the appellant.
4. Per contra, Shri Ranjit Kumar, learned senior counsel appearing
on behalf of the respondent No.5 and Ms. Indira Jaising, learned ASG
for respondent no. 1 and 2, have vehemently opposed this appeal
contending that the submission made before the court and affidavit
filed by respondent no.5 that investigation stood concluded, was
factually correct. However, as per the procedure prescribed under the
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CBI manual, the investigation report submitted by the I.O. goes to the
superior officers for their comments, approval and directions, and
ultimately, it goes to the Director of the CBI. In case the superior
authorities have some query in respect of any matter in that report of
the investigating officer, they are competent to issue directions to
examine a particular witness on a particular point. The investigating
officer is bound to do so in order to tie the loose ends of investigation.
Such examination of witness or further investigation does not amount
to the statement made by the I.O. in the affidavit before the court
being false or having been made deliberately and mischievously to
misguide the court. As per the requirement of the procedure
prescribed under the CBI manual, the I.O., even after filing such an
affidavit, was bound to carry out such directions issued by the
superior authorities.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6. In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421,
this Court held that no body should be permitted to indulge in
immoral acts like perjury, prevarication and motivated falsehoods in
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the judicial proceedings and if someone does so, it must be dealt with
appropriately. In case recourse to a false plea is taken with an oblique
motive, it would definitely hinder, hamper or impede the flow of
justice and prevent the courts from performing their legal duties.
7. In this context, reference may be made of Section 340 under
Chapter XXVI of the Cr.P.C., under the heading of “Provisions as to
Offences Affecting the Administration of Justice”. This Chapter deals
with offences committed in or in relation to a proceeding in the court,
or in respect of a document produced or given in evidence in a
proceeding in the court and enables the court to make a complaint in
respect of such offences if that court is of the view that it is expedient
in the interest of justice that an inquiry should be made into an
offence. Clause (b) of Section 195 (1) Cr.P.C. authorises such court to
examine prima facie as it thinks necessary and then make a complaint
thereof in writing after having recorded a finding to that effect as
contemplated under Section 340 (1) Cr.P.C. In such a case, the
question remains as to whether a prima facie case is made out which,
if unrebutted, may have a reasonable likelihood to establish the
specified offences and whether it is also expedient in the interest of
justice to take any action. Thus, before lodging a complaint, the
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condition precedent for the court to be satisfied are that material so
produced before the court makes out a prima facie case for a
complaint and that it is expedient in the interest of justice to have
prosecution under Section 193 IPC. (Vide: Karunakaran v. T.V.
Eachara Warrier & Anr., AIR 1979 SC 290; and K.T.M.S. Mohd.
& Anr. v. Union of India, AIR 1992 SC 1831).
8. In the case of Chajoo Ram v. Radhey Shyam & Anr., AIR
1971 SC 1367, this Court held:
“7. 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.” (Emphasis added)
9. In Iqbal Singh Marwah & Anr. v. Meenakshi Marwah &
Anr., AIR 2005 SC 2119, this Court observed:
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“In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1) (b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice…..”
(See also: R.S. Sujatha v. State of Karnataka & Ors., (2011) 5 SCC
689)
10. In view of the above, law on the issue can be summarised that
in order to initiate prosecution for perjury, the court must prima facie
reach a conclusion after holding preliminary inquiry that there has
been a deliberate and conscious effort to misguide the court and
interfere in the administration of justice. More so, it has to be seen
whether such a prosecution is necessary in the interest of justice.
The case is required to be decided in light of the aforesaid
settled legal proposition.
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11. The affidavit filed by respondent no. 5 revealed that the
respondent no. 5 had submitted the final report (Part-I) in the
aforesaid case on 11.1.2002 to the SP. It is also not in dispute as can
be seen from the affidavit dated 5.4.2002, that the report submitted by
the IO goes to the superior officers for scrutiny and comments. The
High Court had passed a consent order dated 19.4.2002 wherein
certain directions had been issued to the Director, CBI to examine the
case. The Director, CBI after examining the record of the case, vide
order dated 23.4.2002, asked the IO to tighten the loose ends of the
case. The said order has not been challenged till date. It is also evident
that chargesheet was filed on 5.12.2002 and, subsequently, cognizance
was taken by the competent court on 10.1.2003. The case was filed
under Section 340 read with Section 195(1)(b) Cr.P.C. by the
appellant on 3.5.2006, i.e. after three and a half years.
12. The High Court while dealing with the case has also, after
examining the original records as well as the file and particularly the
confidential notings therein, came to the conclusion that in view of the
directions issued by the superior authority, some other witnesses were
examined “to tighten the loose ends of the case” and there was no
attempt on the part of the investigating agency to mislead the court.
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The order dated 23.4.2002 passed by the Director, CBI has not been
challenged by the appellant and the instant complaint had been filed
after 3-1/2 years in 2006. The statements were recorded on such
directions, however, only to the extent of tightening the loose ends.
More so, the provisions of Section 195(1)(b) etc. are also attracted in
such a fact-situation. After looking into the voluminous record of the
case, what has been done after filing the affidavit or making the
statement was minimal. The prosecution for perjury is required only
where perjury appears to be deliberate and conscious and the
conviction is reasonable, probable or likely. In the circumstances, a
mere impression or perception of the appellant would not make the
deposition on affidavit by the respondent no. 5 to be false as being a
deliberate and conscious act.
13. The court further observed that the complaint had been filed
after 4 years on the basis of mere impression of the appellant and
under no circumstances, it could be held that there had been some
deliberate and conscious attempt to mislead the court which may
warrant entertaining the application filed by the appellant.
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14. We have given serious consideration to the material on record.
However, we could not convince ourselves to take a view contrary to
that of the High Court. The High Court has rightly reached the
conclusion that there was no deliberate perjury to misguide the court
while making such statement or filing the affidavit. In such a fact-
situation, the question of allowing application under Section 340
Cr.P.C. read with Section 195 (1)(b) Cr.P.C. was not warranted.
15. Thus, we do not find any cogent reason to interfere with the
impugned judgment and order. The appeal lacks merit and, is
accordingly dismissed.
.........................………………..J. (DR. B.S. CHAUHAN)
.............………………………J. (S.A. BOBDE)
New Delhi, November 22, 2013
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