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M.S. Jaggi Vs. Registrar, High Court of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in54(1982)CLT601; 1983CriLJ1527
AppellantM.S. Jaggi
RespondentRegistrar, High Court of Orissa and anr.
Cases Referred(Nirrmaljit Singh Hoon v. State of West Bengal
Excerpt:
.....or instructions nor can they replace statutory rules. - under the direction of the learned chief justice, the registrar of this court, after an inquiry, submitted his report stating that the present petitioner, had failed to prove his allegation. when the court takes action it is a species of falsehood clearly defined under section 191. i. 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. it has been laid down in air 1933 pat 513 :34 cri lj 912 (supra) that the burden of proof in case of an offence under section 199 is on the prosecution to..........the statement was not correct, and directed that the matter should be placed before the learned chief justice for appropriate action. under the direction of the learned chief justice, the registrar of this court, after an inquiry, submitted his report stating that the present petitioner, had failed to prove his allegation. thereafter the learned chief justice-passed an order for placing the matter before dr. justice b. n. misra. hearing of the criminal revision was taken up and. concluded in the court of dr. justice b. n. misra on 16-11-1981 on which day, the present petitioner filed an affidavit' stating that the learned chief justice. mr. justice j.k. mohanty and mr. b.b. mohanty, advocate for the petitioner in that revision, were the class-mates of dr. justice b. n. misra and,.....
Judgment:

B.K. Behera, J.

1. The petitioner invokes the inherent jurisdiction of this Court under Section 482 of the Criminal P.C. (the Code, for shorty to quash the criminal proceeding (2 (c) C. C. No. 23 of 1982) instituted against him under Section 199 of the I.P.C. on a complaint made by the Registrar of this High Court.

2. In Cri. Revn. No. 432 of 1979 of this Court in which Subash Chandra Mohapatra was the petitioner and the present petitioner was the opposite party, Mr. B. B. Mohanty, Advocate, had filed vakalatnama and appeared on behalf of the petitioner in that Criminal Revision. The present petitioner, who had been appearing in person, filed an affidavit in the court of Mr. Justice J. K-Mohanty, after the hearing was concluded, alleging relationship of the learned Judge with the petitioner in that revision. The learned Judge observed that the statement was not correct, and directed that the matter should be placed before the learned Chief Justice for appropriate action. Under the direction of the learned Chief Justice, the Registrar of this Court, after an inquiry, submitted his report stating that the present petitioner, had failed to prove his allegation. Thereafter the learned Chief Justice-passed an order for placing the matter before Dr. Justice B. N. Misra. Hearing of the Criminal Revision was taken up and. concluded in the court of Dr. Justice B. N. Misra on 16-11-1981 on which day, the present petitioner filed an affidavit' stating that the learned Chief Justice. Mr. Justice J.K. Mohanty and Mr. B.B. Mohanty, Advocate for the petitioner in that revision, were the class-mates of Dr. Justice B. N. Misra and, therefore, the matter might not be heard in that court, The matter was posted to 17-11-1981 for hearing on this affidavit. On that day, the present petitioner filed another affidavit expressing his regret for having asserted that the learned- Chief Justice and Dr. Justice B. N: Misra were class-mates, but he did not deny his assertion that Dr. Justice B. N. Misra and Mr. B. B. Mohanty, Advocates, were class-mates.

3. Oil 17-11-1981. Dr. Justice B. N. Misra passed the following order:-

Two affidavits have been filed by the opposite party Mr. M.S. Jaggi today in Court.- In one affidavit he tenders his unconditional apology for his false statement in his affidavit dt. 16-11-1981 to the effect that Hon'ble Chief Justice shri R. N. Misra and myself were classmates. He sincerely regrets for the false statement made by him. His apology is accepted in so far as it relates to the above false statement.

XX XX XX XX XX XXHearing on the affidavit dt. 16-11-1981 is concluded. Judgment is reserved.

The learned Judge passed the following order on 15-12-1981:-

Judgment delivered as per separate sheets, The impugned order dated 23-4-1979 is quashed and the revision is disposed of accordingly.XX XX XX XX XX XX

The hearing of this revision on merits commenced on 23-10-1981, continued on 28-10-1981 and concluded on 16-11-1981. On 16-11-1981 the opposite party filed an affidavit stating therein that the Hon'ble the Chief Justice, the Hon'ble Justice Shri J. K. Mohanty and Shri B. B. Mohanty, Advocate for the petitioner, were my class-mates, I pointed out to the opposite party that the Hon'ble the Chief Justice and Shri B.B. Mohanty, Advocate were never my classmates. To my query Shri B. B. Mohanty, Advocate confirmed that he was never my class-mate. The matter was posted to 17-11-1981 for hearing on the affidavit dt. 16-11-1981 filed by the opposite party. On 17-11-1981 the opposite party filed another affidavit expressing his sincere regrets and tendered his apologies for his false assertion that the Hon'ble the Chief Justice and myself were class-mates. His apologies were accepted.

As alreay noted, when the hearing of the revision application was almost over, with a view to prevent the hearing of the master before me and to shift the case to some other Court, a false statement of fact was made by the opposite party that Shri B. B. Mohanty. Advocate for the petitioner, was my classmate. Prima facie, an offence punishable under Section 199. I.P.C. has been committed. The opposite party is in the habit of making false allegations against Judges when he finds that they are not amenable to pass orders of his choice, and in the aid of his interest the opposite party chooses to make false allegations. I am inclined to take the view that by his conduct the opposite party has rendered himself liable for being prosecuted in the interest of public justice and, therefore, a complaint should be made as required under Section 195(1)(b)(i), Cr. P.C. I direct the Registrar of this Court to lodge the appropriate complaint in accordance with law before the Chief Judicial Magistrate of Cuttack.

4. The Registrar of this Court has accordingly made a complaint in the court for prosecution of the petitioner under Section 199 of the I.P.C.

5. An application was made by the petitioner before the learned Chief Judicial Magistrate to quash the order dt. Jan. 21, 1982 passed by him taking cognisance of the offence against the petitioner. The learned Chief Judicial Magistrate rejected the application by stating:-

It is rejected.

The learned Magistrate ought to have recorded his reasons for the rejection of the application and in my view, he did not exercise his discretion properly by passing a non-speaking order. I have, however, called for the record and examined it.

6. The petitioner has appeared in person and contended, placing reliance on. the principles laid down in the cases of Chandrapal Singh v. Maharaj Singh : 1982CriLJ1731 Jotish Chandra v-State of Bihar : 1969CriLJ257 and Shahzad Khan v. Emperor AIR 1933 Pat 513 : 34 Cri LJ 912 that the allegations against him do not constitute an offence punishable under Section 199 of the I.P.C. and his prosecution being illegal, the criminal proceeding against him should be quashed by this Court. Mr. S. C Mohapatra, appearing for the Registrar of this Court, has, on the principles laid down in the cases of State of West Bengal v. Swapan Kumar Guha : 1982CriLJ819 and K. Karunakaran v. T.V. Eachara Warrier : 1978CriLJ339 , contended that the allegations made in the petition of complaint on the basis of which cognisance has been taken by the learned Chief Judicial Magistrate do constitute an offence punishable under Section 199 of the I; P.C. and it is not a fit case in which the criminal proceeding against the petitioner should be quashed. Mr. S. K. Das, the learned Additional Standing Counsel appearing for the State has adopted the same contentions raised by Mr. Mohapatra.

7. Section 199 of the I, P.C. reads:-

Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.' This section requires three essentials:

(a) making of a declaration which a court or a public servant is bound or authorised by law to receive in evidence.

(b) making of a false statement in such declaration knowing or believing it to be false, and (c) such false statement should be touching any point material to the object for which the declaration is made or used. There must be a deliberate false statement. In : 1978CriLJ339 (supra) Goswami. J. speaking for the Court, observed (at p 344 of Cri LJ) :-Lie tends to become almost a style of life. Lies are resorted to by the high and the low being faced with inconvenient situations which require a Mahatma Gandhi to own up Himalayan blunders and unfold unpleasant truths truthfully. But when principles are sacrified at the altar of individuals, selfishness of man, desire to continue in position and power, lining up with the high and mighty, lead to lies, euphemistically prevarication. But all lies made, here and there, ignored by the people or exposed on their own to nudity are not subject-matters for the court to take action. When the court takes action it is a species of falsehood clearly defined under Section 191. I.P.C. and punishable under Section 193, I.P.C.

Statements made in a reckless and haphazard manner, though untrue in fact, may not constitute any offence when the person making such statements immediately admits the mistake and corrects the statements, if,. however, a person makes a reckless and false allegation against a Judge in his affidavit, he lays himself open to a prosecution under this Section.

8. In (1982) 1 SCC 466 : 1982 Cri LJ 1731 (supra), their Lordships of the Supreme Court observed (At p. 1736 of Cri LJ) :-

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 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 Chan-drapal Singh alleged that he was in possession of one room forming part of premises No. 385/2. The learned Addl. Disk 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 fake 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 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.

In view of the facts and circumstances of that case and for the reasons recorded by their Lordships, the criminal proceeding in that case was quashed.

9. In : 1969CriLJ257 (supra), it has been laid down (at p. 250 of Cri LJ) :-.Before a person can be punished under Section 199, I.P.C.. it has to be proved inter alia, that the false statement is 'touching any point, material to the object for which the declaration is made.' There is no suggestion that the change of the date of birth touched any material point in F. A. No. 227 of 1962. One of the ingredients of an offence under Section 200. I.P.C. is that the declaration should be used or attempted to be used corruptly. It has not been explained to us how the declaration was used 'corruptly.' Considering that the date of birth was obtained from the school records, and that the appellant stood to gain no advantage by giving a wrong date, the learned single Judge should not, in our view, have directed the lodging of complaint under Section 199 or Section 200. I.P.C. It is not clear what other section of Indian Penal Code the learned single Judge had in view.

It has been laid down in AIR 1933 Pat 513 : 34 Cri LJ 912 (supra) that the burden of proof in case of an offence under Section 199 is on the prosecution to show that at the time of making the affidavit, the accused either knew or believed it to be false or did not believe it to be true and it is not for the accused to show the correctness of the statement and his good faith in making it. The ingredients of the offence are to be established at the trial and not at the stage when cognisance is taken.

10. As pointed out eariler, the petitioner had filed an affidavit stating that the learned chief Justice, Mr. Justice J.K. Mohanty and Dr. Justice, B. N. Misra of this' Court and Mr. B. B. Mohanty appearing for the petitioner in the Criminal Revision in which the present petitioner was the opposite party were class-mates. He made amends in respect of a part of his statement, but stood by his statement that Dr. Justice B. N. Misra and Mr. B. B. Mohanty, Advocate, were class-mates. This assertion of his is false as recorded by Dr. Justice B. N. Misra in the orders extracted above. As has been laid down in (1982) 1 SCC 466 (supra), a prosecution under Section 199 of the Penal Code may not be launched merely because any part of the statements made by or the evidence of one party to a judicial proceeding is ultimately found to be untrue. But here it was not a case of merely making a reckless statement. A false statement deliberately made by the petitioner was stuck to. The object of the petitioner in making a false statement alleging that Dr. Justice B. N. Misra and Mr. B. B. Mohanty. Advocate, were class-mates was to have the matter transferred to the court of any other Judge of this Court although legally this could not be a valid ground for transfer.

11. In : 1982CriLJ819 (supra), the criminal proceeding arising out of the first information report was quashed as the first information report and the other materials did not disclose any offence and it was held that no investigation was to be permitted or allowed to be continued. It has been laid down in that case that justice requires that a person who commits an offence has to be brought to book and must be punished for the same and if the court interferes with the proper investigation of the case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of justice suffers.

12. The inherent power of the High Court to quash a criminal proceeding is to be exercised in a proper case to prevent an abuse of the process of the court or to secure the ends of justice. The criminal proceeding instituted against an accused person shall ordinarily be proceeded with in accordance with law-Where, however, the allegations in the first information report or in the complaint, even on their face value and if accepted in entirety, do not constitute an offence, the inherent jurisdiction of the court can be exercised. In this connection, one may keep in mind the principles laid down in : 1960CriLJ1239 (R.P. Kapur v. State of Punjab) : 1975CriLJ812 (Supdt. and Remembrancer of Legal Affairs W.B. v. Mohan Singh) and : 1977CriLJ1146 (Dr. Sharda Prasad Sinha v. State of Bihar). It is not possible or expedient to lay down an inflexible rule which would govern the exercise of inherent jurisdiction of the High Court. As has been held in : 1978CriLJ165 (Madlm Limaye v. State of Maharashtra), in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose- of securing the ends of justice, interference by the High Court is absolutely necessary, the High Court may exercise its power under Section 482 of the Code, This power is to be exercised very sparingly. Criminal proceedings instituted illegally, vexatiously or without jurisdiction may be quashed In : 1978CriLJ1687 (Hareram Satpathy v. Tika-ram Agrawala) it has been observed that as the Magistrate is restricted to finding out whether 'there is a prima facie case or not for proceeding against the accused person and cannot enter into a detailed discussion of the merits or demerits of the case and the scope of the revisional jurisdiction is very limited, the High Court cannot launch on a detailed and meticulous examination of the case on merits and set aside the order of the Magistrate directing issue of processes against certain persons. As has been laid down in : [1964]1SCR639 (Chandra Deo Singh v. Prokash Chandra Bose : 1971CriLJ1110 Balraj Khanna v. Moti Ram) and : [1973]2SCR66 (Nirrmaljit Singh Hoon v. State of West Bengal) whether there are sufficient materials to hold a person guilty of the offence is to be decided at the stage of trial and not while finding out as to whether there are materials to take cognisance and proceed against him.

13. In the instant case, there are prima facie materials to show that the petitioner has committed an offence punishable under Section 199 of the Penal Code. It cannot be said at this stage that the petition of complaint could not legally be made against the petitioner.

Regard being had to be aforesaid facts, it is not a fit case in which this Court should exercise its inherent jurisdiction under Section 482 of the Code and quash the criminal proceeding against the petitioner.

14. In the result, the application is rejected and the criminal revision stands dismissed.

15. Before I close. I would like to make is clear that some observations have been made by me for the purpose of disposal of this revision and the same must not. in any manner, influence the mind of the trial/court.


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