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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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