1 Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 649   OF 2018 (Arising out of S.L.P. (Crl.) No.545 of 2016)

Prof. Chintamani Malviya ……Appellant Versus

High Court of Madhya Pradesh ..…. Respondent

JUDGMENT

Uday Umesh Lalit, J.

Leave granted.

2. This  appeal  challenges  the  Judgment  and  Order  dated  07.10.2015

passed by the High Court of Madhya Pradesh at Indore in M.CR.C No.2526

of 2015 whereby the High Court authorized the Principal Registrar of the

High  Court  under  Section  195(1)(b)(i)  of  Criminal  Procedure  Code

(“Cr.P.C”, for short) to file complaint in the concerned court of Magistrate

against the appellant herein.

3. The appellant was elected to Lok Sabha in the elections held in the

year  2014  from  Ujjain  Lok  Sabha  Constituency.   His  election  was

challenged vide Election Petition No.33 of 2014 by one Premchand Guddu.

2 On 31.07.2014 notice was issued by the High Court in said election petition

and the same was to be served upon the appellant through the District Judge,

Ujjain. The next date in the petition being 01.09.2014, the notice was said to

have  been  served  upon  the  appellant  on  16.08.2014  by  one  Mr.  Arun

Bhalerao, Process Server.

4. According to the appellant, the aforesaid notice was served on one of

his employees while the appellant was in Delhi and that the appellant came

to know about the pendency of the election petition only on 25.01.2015.  On

the other hand according to the election petitioner, the process server had

served the notice on the appellant himself.   

5. On the returnable date of hearing, namely, on 01.09.2014, neither the

appellant was present before the High Court nor was he represented by any

counsel.  Since the service report presented before the Court showed that the

appellant was duly served on 16.08.2014, the case proceeded ex parte.

6. On 29.01.2015 the appellant moved an application under Order 9 Rule

7 Civil Procedure Code (“CPC”, for short) being I.A. No.927 of 2015 and

submitted inter alia that the process server had served notice and documents

on  one  of  the  employees  while  the  appellant  was  in  Delhi  and  that  the

appellant  came  to  know about  the  election  petition  only  on  25.01.2015.

3 Soon thereafter  the original  election  petitioner  filed an  application  under

Section 340 Cr.P.C. being I.A. No.1303 of 2015 in pending election petition

alleging that the appellant had committed perjury by stating falsely that the

notice in the election petition was given to his employee whereas said notice

was actually served upon the appellant by the process server.

7. By its order dated 24.03.2015, the High Court allowed I.A. No.927 of

2015 preferred by the appellant for setting aside the order for proceedings

ex-parte against the appellant and it allowed the appellant to participate in

the proceedings.  Further, by another order of the same date, the High Court

allowed I.A. No.1303 of 2015 preferred by the original election petitioner

and directed the Registry to register a criminal case.  The Registrar was also

given directions to conduct appropriate inquiry under Section 340 Cr.P.C.  In

compliance  of  said  order,  M.Cr.C.  No.2526  of  2015  was  registered  on

27.03.2015 and appropriate show cause notice was issued to the appellant.

In  the  subsequent  proceedings,  statement  of  Mr.  Arun  Bhalerao,  Process

Server was recorded who stated that the requisite notice was served on the

appellant by him.

8. By its order dated 24.09.2015, the High Court accepted the plea taken

by the appellant in his application preferred under Order 7 Rule 11 C.P.C. in

pending election petition and the election petition was dismissed.

4

9. By  subsequent  order  dated  07.10.2015  which  is  presently  under

appeal, the High Court authorized the Principal Registrar of the High Court

under  Section 195(1)(b)(i)  of  Cr.P.C.  to  file  appropriate  complaint  in  the

concerned Court of Magistrate.  It was observed:-

“(6) After  recording  the  statements  and  taking  into consideration  the  served  notice  bearing  No.1762  dated 12.08.2014 and enclosed hukmnama, it is apparent that notice was served personally on the respondent while in the affidavit, he mentioned that notice was served on his staff. …

(8) It is to be seen whether, it is in the interest of justice to punish  the  respondent  whether,  such  lapses  on  his  part  are immaterial and innocent.

(9) Counsel  for  the  respondent  argues  that  it  was unintentional  mistake  on  the  part  of  the  respondent  and, therefore, no action should be taken against him.

(10) In my considered opinion, however, more cautious and responsible approach was expected from the respondent being representative of people and professor himself.  He is expected to  understand  the  consequences  of  not  appearing  before  the Court of law and specially before the High Court.  Therefore, in this case, lenient and sympathetic view is not called for.  In this view of the matter, I find that prosecution for perjury should be initiated against the respondent.”

10. Appearing for the appellant, Mr. K.V. Vishwanathan, learned Senior

Advocate submitted inter alia ;

(a) It  has  consistently  been  laid  down  by  this  Court  that

prosecution for perjury be sanctioned by Courts only in those cases where

5 perjury  appears  to  be  deliberate  and  on  a  matter  of  substance  and  the

conviction would reasonably be probable.  Further, prosecution ought to be

ordered when it  would  expedient  in  the  interest  of  justice  to  punish  the

delinquent and not merely because there is some inaccuracy in the statement.

He placed reliance on the decision of this Court in Chajoo Ram v. Radhey

Shyam and Another1 where this Court observed:-

“The prosecution  for  perjury  should  be sanctioned by courts only in those cases where the perjury appears to be deliberate and  conscious  and  the  conviction  is  reasonably  probable  or likely.  No  doubt  giving  of  false  evidence  and  filing  false affidavits is  an evil  which must  be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and  doubtful  material  defeats  its  very  purpose.  Prosecution should  be  ordered  when  it  is  considered  expedient  in  the interests  of  justice  to  punish  the  delinquent  and  not  merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate  falsehood  on  a  matter  of  substance  and  the  court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and  superficial:  it  does  not  reflect  the  requisite  judicial deliberation….”

Reliance was also placed on the decision of this Court in  K.T.M.S.

Mohd. and Another v. Union of India2.

1 (1971) 1 SCC 774 2 (1992) 3 SCC 178

6 (b) The  fact  that  there  was  delay  of  five  months  in  filing  the

application under Order 9 Rule 7 from the date of alleged service of notice

on 16.08.2014 indicated that the appellant was not aware of the pendency of

the election petition.

11. Ms.  Swarupama  Chaturvedi,  learned  Advocate  appearing  for  the

respondent submitted that for a person to be made liable under Section 191

and  193 of  IPC following ingredients would be required :-

(i) Person  must  be  legally  bound  by  an  oath  or  any  express

provision of law to state the truth or to make a declaration on any subject.

(ii) He must make the false statement.

(iii) He must know or believe to be false or must not be believed to

be true.   

Relying on  Baban Singh and Anr  v. Jagdish Singh & Ors3,  it was

submitted that the appellant was obliged to state facts correctly.  According

to Ms. Chaturvedi the statement of Arun Bhalerao, Process Server clearly

showed that the appellant himself had signed the receipt of notice and yet a

false statement was made.   

3 AIR 1967 SC 68

7 12. Having given our anxious consideration to the entirety of the matter,

in our view, the guiding principle is the one as laid down in  Chajoo Ram

(supra).   The  law  is  clear,  “prosecution  should  be  ordered  when  it  is

considered expedient in the interest of justice to punish the delinquent….

and there must be prima facie case of deliberate falsehood on the matter of

substance  and  the  Court  should  be  satisfied  that  there  is  reasonable

foundation for the charge”.  The assessment  made by the High Court,  as

extracted in the paragraph hereinabove,  in our considered view,  does not

satisfy the parameters and requirements as laid down by this Court.

13. Recently,  this Court in  Amarsang Nathaji  v.  Hardik Harshadbhai

Patel and Others4 summed up the legal position as under:

“6. The  mere  fact  that  a  person  has  made  a  contradictory statement  in  a  judicial  proceeding  is  not  by  itself  always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”);  but  it  must  be  shown  that  the  defendant  has intentionally given a false statement at any stage of the judicial proceedings  or  fabricated  false  evidence  for  the  purpose  of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate  an  inquiry  into  the  offences  of  false  evidence  and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall  factual matrix  as  well  as  the  probable  consequences  of  such  a prosecution.  (See  K.T.M.S.  Mohd. v.  Union  of  India).  The

4 (2017) 1 SCC 113

8 court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.”

14. We are of the considered view that initiation of proceedings in the

present case was not consistent with the parameters laid down by this Court.

The election petition itself has been dismissed and considering the entirety

of the matter, it would not be expedient to initiate proceedings under Section

340 Cr.P.C. read with Section 195(1)(b)(i) of Cr.P.C.  We, therefore, accept

the appeal and close the proceedings.  The appeal stands allowed and the

judgment and order under appeal is set aside.

…………………..……J. (Arun Mishra)

…………………..……J. (Uday Umesh Lalit)

New Delhi, April 27, 2018