LexCHAJOO RAM versus RADHEY SHYAM & ANR.
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A CBAJOO RAM v. RADHEY SHYAM &: ANR. March 23, 1971 B [S. M. SIKRI, C. J., P. JAGANMOHAN REDDY AND I. D. DUA, JJ.J c D E F G H Code of Criminal Procedure (Act 5 of 1898), ss. 476 and 479-Scope of-Filing of false affidavit if appearing as witness. Practice-Prosecution for perjury-When should be ordered. Several complaints were made to the District Magistrate by the re8· pondent about the appellant while he was functioning as a Sarpanch. As no action was taken on those complaints the respondent filed a writ peti· tion in the High Court praying for a mandamus directing inquiries to be made. 'fhe writ petition was allowed and an inquiry was directed to be held. The inquiry was held by the Sub-Divisional Magistrate and it was held that there were only irregularities committed by the appellant, that be did not abuse his position in any way, and that no action Ot:ed be taken against him. In those proceedings the appellant filed an affida vii that he had not acted as Sarpanch during the relevant period but only looked after the work of the Sarpanch. The respondent presented an application under s. 476, Cr. P. C., in the Court of the District Magistrate praying for the appellant's prosecution under ss. 193, 181 and 182 1.P.C., for having deliberately filed a false affidavit. The matter was inquired into by District Magistrate and after going through the entire material he held that the case of swearing of a false affidavit was not made out against the appellant. An appeal· to the Sessions Court and a revision to the High Court by the respondent were dismissed. Tn the course of the writ proceedings in the High Court several affida- vits were filed and the appellant asserted in those affidavits also that he had not acted as a Sarpanch during the relevant period. The respondent again moved the High Court by filing an application under s. 476, Cr. P. C., for the appellant's prosecution for making a false statement in his affidavit. A single Judge of the High Court ordered that a complaint be made against the appellant. The matter was taken on appeal to a Division Bench by the appellant and it was contended that in view of s. 479-A Cr. P. C .. the appellant could not be prosecuted under s. 476 Cr. P. C., bunhe conten- tion was repelled and it was held that a per!l<>n filing an affidavit could not be considered to have appeared as a witness before the Court as con .. templated by s. 479-A. In appeal to this Court, HELD: In s. 479 A(6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479 for the prosecution of a person for giving or fabricating false evidence if in respect of such a person proceed- ings could be taken under s. 479-A. But under s. 479-A it is only a wit- ness who hal' appeared before the court that can be proceeded against. In the present case, the appellant filed a sworn affidavit but it was ont possible to hold that by doing so he appeared as a witness. Since he did not appear as a witness before the High Court s. 479-A was inapplicable and did not operate as a bar to the proceedings under s. 476 Cr. P. C. [177A-E] CHAIOO RAii v. RADllEY SHYAM (Dua, J.) (2) But there is nothing to show that the explanation given by the appellant that he did not act as Sarpanch at the relevant time, but only did his work as a panch, was false. (1798] A prosecution for perjury should be sanctioned by courts only in those cases where perjury appears to be deliberate and Conscious and a convic- tion is reasonably probable, and 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 a prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable founda- tion for the charge. The giving of false evidence and the filling of false affidavits is no doubt an evil which must be effectively curbed but to start prosecuuon for prejury too readily and too frequently and without due care and caution defeats its. very purpose. [l 79E-G] In the present case, the material on record was not sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The High Court did not give due weight to the follow- ing fa~ts: (a) The appellant was a Panch and was authorised to act as such and bis explanat
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