“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. =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.

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