AARISH ASGAR QURESHI versus FAREED AHMED QURESHI & ANR.

Citation: [2019] 3 S.C.R. 400 · Decided: 26-02-2019 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 3 S.C.R.
AARISH ASGAR QURESHI
v.
FAREED AHMED QURESHI & ANR.
(Criminal Appeal No. 387 of 2019)
FEBRUARY 26, 2019
[R. F. NARIMAN AND VINEET SARAN, JJ.]
Code of Criminal Procedure, 1973 – s.340 – Matrimonial
proceedings – Certain averments made in anticipatory bail
applications both before the Sessions Court as well as the High
Court – Allegation that the statements made were knowingly false
and were deliberately made in order to get favourable orders from
the Court – Sessions Court held that the application filed by the
applicant is  premature – Same statements made in anticipatory bail
application before the High Court – High Court found that statement
made in the aforesaid application was false and therefore, a prima
facie case was made out for perjury u/s.340 and that it would be
expedient in the interest of justice to prosecute the appellant – On
appeal, held: 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, the
statement made in the anticipatory bail application cannot be tested
against unimpeachable evidence as evidence has not yet been led –
High Court has not scrutinised any evidence as there was none to
scrutinise – 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  – Order of the High Court set aside.
Allowing the appeal, the Court
HELD: 1.1 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
[2019] 3 S.C.R. 400
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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. 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 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. [Para 10] [408-B-F]
1.2  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. [Para 13] [409-F-H]
1.3  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,
it is found otherwise that it ought not to have so proceeded.
Equally, not impressed by the argument by the appellant’s counsel
AARISH ASGAR QURESHI v. FAREED AHM

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