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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  387  OF 2019 (Arising out of SLP (Crl.) No. 2632/2018)

AARISH ASGAR QURESHI                              Appellant(s)

VERSUS

FAREED AHMED QURESHI & ANR.                       Respondent(s)

J U D G M E N T

   R.F. Nariman, J.

1) Leave granted.

2) The  present  case  arises  out  of  a  judgment  dated

07.03.2018 of the High Court of Judicature at Bombay, in which

the High Court felt that a prima facie case has been made out

for perjury under Section 340 of the Cr.P.C., and that it

would be expedient in the interest of justice to prosecute the

appellant before us.

3) The present case arises out of matrimonial proceedings

in which certain averments have been made in anticipatory bail

applications both before the Sessions Court as well as the

High  Court.   Insofar  as  the  anticipatory  bail  application

before the Sessions Court is concerned, the applicants in the

aforesaid application stated:

“8. That the Applicant No.1 was deeply troubled

by  these  developments  and  thus  approached  his

mother  in  law,  Naseem  Qureshi  to  ask  for  her

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intervention in this matter and in the hope that

a mother would be able to talk sense to her own

daughter  and improve  their relations.  However,

despite  the  intervention  of  several  family

members, there was no change in Sana’s behaviour.

During this period, it came to light that Sana

was having an affair with one Waseem Shaikh who

resided in Mahim. The in-laws of the Applicant

No.1  admitted  that  they  were  aware  of  this

relationship which had been going on prior to the

marriage of the Applicant No.1 with Sana but as

the  said  Waseem  Shaikh  belonged  to  another

community,  they  did  not  approve  of  the

relationship and had forced Sana to marry the

Applicant No.1.

11.  That  on  the  29th of  October,  2016,  the

Applicant  No.1  went  to  fetch  Sana  from  her

maternal home and was completely aghast to find

Sana  in  a  compromising  position  with  Waseem

Shaikh.  That  the  Applicant  No.1  was  further

shocked that such incidences were occurring right

under  the  nose  of  his  in-laws  who  were  doing

nothing  to  discourage  their  daughter  from

maintaining these illicit relations.  Thereafter,

the Applicants made it clear to the Complainant

and  his  family  members  that  they  would  not

tolerate  the  continuance  of  such  illicit

relations  which  went  against  the  sacred

institution of marriage and demanded that Sana

stop all interactions with the said Waseem Shaikh

and that she should genuinely try to make her

marriage work. However, Sana refused to comply

and in November, 2016, Sana left her matrimonial

home taking with her various items.”

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When the aforesaid statements were brought to the notice of

the  Sessions  Court,  and  it  was  argued  before  the  Sessions

Court that these were knowingly false statements deliberately

made in order to get favourable orders from the Court, the

Sessions Court by a judgment dated 12.02.2018 held:  

“The  accused  are  charged  for  the  offences

punishable under Sections 323, 376(b), 377, 406,

498A, 504 and 506 read with 34 of the Indian

Penal Code and under Sections 3 and 4 of the

Dowry  Prohibition  Act,  1961.   F.I.R.  was

registered on 19-11-2017. Still charge-sheet is

not filed before the Court therefore, proceeding

against  the  Accused  Nos.1  to  7  is  yet  to  be

conducted. Evidence of prosecution witnesses and

defence  witnesses,  if  any,  are  yet  to  be

recorded.  After  recording  of  evidence,  both

parties having an opportunity to cross-examine

the  witness.  Thereafter,  it  will  be  decided

whether  the  allegation  made  by  the  accused

persons  are  true  or  false.  At  this  juncture,

contradictory statement of Accused Nos. 1 to 7

are before the Court. Now, the truthfulness of

the statement is not decided. Admittedly, if the

person made false statement before the Court on

oath, he is liable for punishment.  However, for

that purpose, it is necessary to come to the

conclusion  that  the  accused  persons  had  made

false  statement.  Merely,  on  the  basis  of

contradictory  statement  made  by  the  accused,

they cannot be punished, at this juncture, and

cannot initiate proceeding under Section 340 of

Cr.P.C., as the allegations are yet to be proved

in the case filed by the victim. Therefore, this

application  filed  by  the  applicant  is

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premature.”  

4) The same statements were made in an anticipatory bail

application before the High Court.  The High Court found that

an investigating officer had filed a Report dated 24.11.2017

and  recorded  a  finding  that  the  allegations  made  in  the

anticipatory  bail  application  were  false.   It  prima  facie

appeared to the Court that the Respondent No.2 has made a

false  statement  in  the  aforesaid  application  and  that

therefore, a case for filing a complaint under Section 340

read with Section 195(1)(b) of the Cr.P.C. is made out and it

is expedient in the interest of justice that an enquiry be

made by the judicial magistrate having jurisdiction.  The High

Court also referred to para 3 of an order dated 30.11.2017 in

which the aforesaid allegations were repeated and, according

to the High Court, anticipatory bail was granted.

5) Mrs. Amrita Panda, learned counsel appearing on behalf of

the  appellant,  has  stated  that  the  so-called  investigation

report  is  a  preliminary  report  made  by  an  investigating

officer two days after the filing of the F.I.R. in which no

findings whatsoever had been recorded about the falsity of the

statements  made  in  the  anticipatory  bail  application.   She

also argued that the High Court order of 30.11.2017 merely

recorded  the  allegation  that  was  found  to  be  false  as  a

submission  made  by  appellant’s  counsel.   However,  the

anticipatory bail was granted for reasons that were entirely

different from the submission made.  She also argued before us

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that it was highly improper on the part of the respondents to

have suppressed the proceeding that ultimately culminated in

the Sessions Court order of 12.02.2018, and said that on this

ground also since the respondents approached the High Court

with unclean hands, the impugned order ought to be set aside.

She cited certain judgments to buttress her contentions.

6) Mr. Nilesh Ojha, learned counsel appearing on behalf of

the  Respondent  No.1,  has  countered  these  submissions.   On

suppression, he has stated that, as a matter of fact, the

application for anticipatory bail made in the Sessions Court

was made after that made in the High Court, and effective

arguments were over in the High Court by the 8th and 9th of

February.   Obviously  therefore,  the  order  dated  12.02.2018

could not be brought to the notice of the High Court.  He also

stated that the anticipatory bail application made before the

Sessions  Court  was  a  separate  and  independent  application,

which the Sessions Court dealt with, and the anticipatory bail

application made before the High Court again being separate,

it was open to the High Court to arrive at its own conclusion

in an independent proceeding as to whether a prima facie case

under Section 340 has been made.  He also relied upon certain

judgments to buttress his arguments.

7) The law under Section 340 on initiating proceedings has

been laid down in several of our judgments.  Thus in  Chajoo

Ram vs. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7,

stated:

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“7. … 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.”  

8) Similarly  in  Chandrapal  Singh  and  Others vs.  Maharaj

Singh and Another, (1982) 1 SCC 466, this Court, in para 14,

stated:

“14.   That  leaves  for  our  consideration  the

alleged offence under Section 199. Section 199

provides  punishment  for  making  a  false

statement  in  a  declaration  which  is  by  law

receivable in evidence. We will assume that the

affidavits filed in a proceeding for allotment

of premises before the Rent Control Officer are

receivable as evidence. It is complained that

certain averments in these affidavits are false

though no specific averment is singled out for

this  purpose  in  the  complaint.   When  it  is

alleged that a false statement has been made in

a declaration which is receivable as evidence

in any Court of Justice or before any public

servant or other person, the statement alleged

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to be false has to be set out and its alleged

falsity with reference to the truth found in

some document has to be referred to pointing

out that the two situations cannot co-exist,

both being attributable to the same person and,

therefore, one to his knowledge must be false.

Rival  contentions  set  out  in  affidavits

accepted or rejected by courts with reference

to onus probandi do not furnish foundation for

a  charge  under  Section  199,  I.P.C.  To

illustrate  the  point,  appellant  1  Chandrapal

Singh alleged that he was in possession of one

room forming part of premises No. 385/2. The

learned  Additional  District  Judge  after

scrutinising  all  rival  affidavits  did  not

accept  this  contention.  It  thereby  does  not

become false. The only inference is that the

statement  made  by  Chandrapal  Singh  did  not

inspire  confidence  looking  to  other  relevant

evidence in the case.  Acceptance or rejection

of  evidence  by  itself  is  not  a  sufficient

yardstick  to  dub  the  one  rejected  as  false.

Falsity can be alleged when truth stands out

glaringly and to the knowledge of the person

who is making the false statement. Day in and

day out, in courts averments made by one set of

witnesses  are  accepted  and  the  counter

averments are rejected.  If in all such cases

complaints under Section 199, I.P.C. are to be

filed not only there will open up floodgates of

litigation but it would unquestionably be an

abuse of the process of the Court. The learned

Counsel  for  the  respondents  told  us  that  a

tendency  to  perjure  is  very  much  on  the

increase and unless by firm action courts do

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not  put  their  foot  down  heavily  upon  such

persons the whole judicial process would come

to  ridicule.  We  see  some  force  in  the

submission  but  it  is  equally  true  that

chagrined and frustrated litigants should not

be permitted to give vent to their frustration

by  cheaply  invoking  jurisdiction  of  the

criminal  court.  Complainant  herein  is  an

Advocate. He lost in both courts in the rent

control proceedings and has now rushed to the

criminal court. This itself speaks volumes. Add

to this the fact that another suit between the

parties was pending from 1975. The conclusion

is inescapable that invoking the jurisdiction

of the criminal court in this background is an

abuse of the process of law and the High Court

rather glossed over this important fact while

declining to exercise its power under Section

482, Cr. P.C.”  

9) Both these judgments were referred to and relied upon

with  approval  in  R.S.  Sujatha vs.  State  of  Karnataka  and

Others, (2011) 5 SCC 689 (at paras 15 & 16).  This Court,

after setting down the law laid down in these two judgments

concluded:

“18. Thus, from the above, it is evident that

the  inquiry/contempt  proceedings  should  be

initiated  by  the  court  in  exceptional

circumstances where the court is of the opinion

that  perjury  has  been  committed  by  a  party

deliberately to have some beneficial order from

the court.  There must be grounds of a nature

higher  than  mere  surmise  or  suspicion  for

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initiating  such  proceedings.   There  must  be

distinct  evidence  of  the  commission  of  an

offence  by  such  a  person  as  mere  suspicion

cannot bring home the charge of perjury.  More

so,  the  court  has  also  to  determine  as  on

facts, whether it is expedient in the interest

of justice to inquire into the offence which

appears to have been committed.”

10) It is clear therefore from a reading of these judgments

that there should be something deliberate - a statement should

be  made  deliberately  and  consciously  which  is  found  to  be

false as a result of comparing it with unimpeachable evidence,

documentary or otherwise.  In the facts of the present case,

it is clear that the statement made in the anticipatory bail

application cannot be tested against unimpeachable evidence as

evidence has not yet been led.  Moreover, the report dated

12.11.2011  being  a  report,  which  is  in  the  nature  of  a

preliminary investigation report by the investigating officer

filed only two days after the F.I.R. is lodged, can in no

circumstances be regarded as unimpeachable evidence contrary

to the statements that have been made in the anticipatory bail

application.  Further, as has been correctly pointed out by

learned  counsel  appearing  on  behalf  of  the  appellant, that

though the submission recorded by the High Court in para 3 of

the order dated 30.11.2017 is from the aforesaid paragraph in

the anticipatory bail application, yet, the High court made it

clear  that  it  was  granting  anticipatory  bail  principally

because the F.I.R. annexed to the bail application does not

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show that there was sexual intercourse of the applicant with

his wife during the course of their separation as a result of

which  it  was  not  possible  to  assess  whether  the  averment

regarding  the  offence  punishable  under  Section  377  of  the

I.P.C.  is  or  is  not  substantiated.   The  High  Court  also

recorded  that  considering  that  the  husband  and  wife  had

resided together after marriage only for a very brief period,

and that the husband was granted interim anticipatory bail,

decided to grant final anticipatory bail on these grounds.  It

is clear, therefore, that both the grounds stated by the High

Court would not suffice to initiate prosecution under Section

340 read with Section 195 (1)(b) of the Cr.P.C.

11) Learned  counsel  appearing  on  behalf  of  the  Respondent

No.1,  however,  cited  a  number  of  judgments.   Thus  in  K.

Karunakaran vs. T.V. Eachara Warrier and Another, (1978) 1 SCC

18, this Court, after referring to Chapter XXVI of the Code of

Criminal Procedure, 1973 reiterated that a statement cannot be

said  to  be  false  unless  it  is  done  deliberately  or

intentionally  (see  paras  23  &  30).   Considering  that  this

Court  was  hearing  an  appeal  against  a  High  Court  order

initiating  prosecution  it  held  that  when  two  views  are

possible  in  the  matter  it  will  not  be  expedient  in  the

interest of justice to interfere with the aforesaid order (see

para 26).

12) In  Sarvepalli Radhakrishnan University and Another vs.

Union of India and Others, 2019 SCC OnLine SC 51, this Court

referred  to  the  facts  in  that  case  in  which  the  Court

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constituted a high level committee headed by a senior officer

deputed by the Director, Central Bureau of Investigation with

two doctors of the All India Institute of Medical Sciences as

its members to go into the facts.  The Committee gathered

facts in great detail, as is mentioned in paras 8 & 9 of the

aforesaid judgment, and ultimately came to certain conclusions

after a detailed enquiry.  It is in this circumstance that

this Court found, after perusing the Committee’s Report, that

the College in question had manufactured records brazenly in

order to obtain favourable orders from the Court.  It is on

the basis of the aforesaid findings of the Committee that it

was clear that a false statement had been made by the College

on the basis of completely fabricated documents.  The facts of

this case are very far from the facts of the present case as

there are no fabricated documents in the present case nor has

there been a detailed enquiry by an independent high level

committee  going  into  facts.   This  case  is,  therefore,

distinguishable from the facts of the present case.   

13) The case next cited by learned counsel for the respondent

No.1 is State of Goa vs. Jose Maria Albert Vales alias Robert

Vales, (2018) 11 SCC 659 in which the learned counsel relied,

in particular, upon para 34.  Para 34 of this judgment, in

turn, relied upon the celebrated judgment of  M.S. Sherif vs.

State of Madras, AIR 1954 SC 397, and ultimately concluded

that  as  the  High  Court  in  that  case  had  scrutinised  the

evidence “minutely” and had disclosed ample materials on which

a  judicial  mind  could  reasonably  reach  the  conclusion  that

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further  investigation  was  necessary  in  a  Section  340

proceeding,  held  that  the  Section  340  proceeding  must,

therefore, go on.  As has been stated in the facts of the

present case, the High Court has not scrutinised any evidence

as there was none to scrutinise.  Further, all that the High

Court has seen is a preliminary investigation report, and that

too by a police officer, together with a High Court order

granting anticipatory bail, none of which can be said to be

unimpeachable evidence against which it can clearly be stated

that a prima facie case of perjury can be said to have been

made  out.   This  judgment  also  does  not  further  the

respondent’s case.  The respondent then relied upon  Perumal

vs.  Janaki, (2014) 5 SCC 377 and para 20, in particular, to

state that the High Courts not only have the authority to

exercise  such  jurisdiction  under  Section  195  but  also  an

obligation to exercise such power in appropriate cases.  This

proposition is unexceptionable.  We have, however, found that

the present is not such an appropriate case.

14) Learned  counsel  then  relied  upon  a  Delhi  High  Court

judgment reported as H.S. Bedi vs. National Highway Authority

of India, 2015 SCC OnLine Del 9524 which states in some detail

the problems faced with present day courts and the number of

false affidavits that are filed before them.  This again has

very little application, as we have seen above, to the facts

of the present case.

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15) The arguments of learned counsel appearing on behalf of

the  appellant that the High Court has not satisfied itself

that it is expedient in the interest of justice to proceed

with the matter does not appear to be correct.  Such finding

is recorded.  However, we have found otherwise that it ought

not to have so proceeded.  Equally, we are not impressed by

the argument by the appellant’s counsel on suppression of the

Sessions Court order.

16) In the result, the appeal is allowed and the impugned

order of the High Court is set aside.

  .......................... J.    (ROHINTON FALI NARIMAN)

  .......................... J.              (VINEET SARAN)

New Delhi; February 26, 2019.