Manashnath Roy, J.
1. In this Rule, which was obtained on 12th Feb. 1980, the petitioner, who has admittedly retired from the services of the Respondent Corporation of Calcutta, has prayed for drawing up proceedings Under Section 340 of the Cr.P.C. 1973, which is to the following effect: 340. Procedure in cases mentioned in Section 195(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of iustice that an inquiry should be made into any offence referred t0 in Clause (b) of Sub-section (1) of Section 195, which appears to have boen committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect:
(b) make a complaint thereof in writing:
(c) send it to a Magistrate of the first class having .jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
against the Respondent officials of the Corporation of Calcutta, after such or necessary enquiry and then to direct the learned Registrar of the Court, to forward a complaint to the Chief Metropolitan Magistrate, Calcutta, in the facts and circumstances as mentioned hereinafter. The case as submitted by Mr. Banerjee, has really a chequered career. The Respondent Corporation of Calcutta is hereinafter referred to as the said Corporation.
2, It has been stated that in or about; 1944, the petitioner was appointed as a 'Draftsman' in the Chief Engineer's Department of the said Corporation and thereafter, pursuant to an advertisement dated 7th April 1946. he applied and was ultimately appointed to the post of 'Draftsman' in charge of (Blue Print) Section, Drainage Department of the said Corporation, on being selected on 1st Mar. 1947, by the Water Work's Committee, It was the case of the petitioner that he was duly confirmed in that post and the duties and responsibilities attached to the post, were not only risky and dangerous, but they were onerous, apart from being full of responsibilities. It was claimed that in view of such character and nature of the job, on representations being made, the Standing Finance Committee of the said Corporation, resolved on or about 21st Jan. 1965, that the petitioner amongst others, should be granted a Special Pay equivalent to l/5th of the basic pay. Apart from the nature and character of the duties performed, it has been stated that such recommendations were made on consideration of the fact that the employees concerned including the petitioner, were required to perform their duties beyond the office hours and even on holidays. The petitioner has stated that the resolution, by an order of the said Corporation dated 19th March 1965, was also duly approved and ratified and accordingly, the Schedule of establishments as contemplated by Section 78 of the Calcutta Municipal Act, (hereinafter referred to as the said Act, was amended. Apart from the hazards of employment to the concerned post, the petitioner has also stated or given the particulars of such dangerous materials or substances, which were required to be dealt with by him. It has further been stated that because of the character of employment, joint representations were made to the Commissioner of the said Corporation, for necessary protection and security and at last, it was decided that persons employed in the department in question, should be provided with a pair of rubber gloves. It was the allegations of the petitioner that even in spite of such directions, nothing was done.
3. It was the case of the petitioner that in 1971, he' was transferred with some motive, from the said post of Draftsman-in-charge, Blue Print Section and challenging the said order of transfer, he obtained Civil Rule No. 2618(W) of 1971. The Rule was made absolute and as a consequence to that, the concerned order of transfer was set aside. It has been alleged that there- after, again on 3rd Feb. 1972, the Executive Engineer of the Drainage Department of the said Corporation, sought to transfer the petitioner from the Blue Print Section to Drawing Section and this action was also challenged by him in Civil Rule No. 440 (W) of 1972. This Rule was also made absolute on 10th November 1974 and accordingly the order of transfer was set aside. The petitioner has stated that the learned Judge, making the Rule absolute, observed that the post held by the petitioner was created as a Special one, with special designation and payment, as such, his transfer from the concerned post to some other with lesser pay, would be a case of penalty. On a reference to the concerned order making the said Civil Rule No. 440 (W) of 1972, absolute as in Annexure 'B' to the petition it would appear that it was also observed that a special post of Draftsman-in-charge of the Blue Print Section, was created with special pay and the same was provided to the petitioner while holding the concerned post, though the special pay was not allotted to the post itself.
4. The petitioner has alleged that because of his repeated success in this Court, in having the orders, as passed illegally, set aside, one Shri B. Nandi, Executive Engineer, Drainage Department, was displeased and as such, to get rid of him. he, with the help and assistance of one Shri Sukumar Mitra, Deputy Executive Engineer, Drainage Department, took steps and actions and in order to a achieve such mala fide intention in harassing the petitioner, a memo dated 1st April 1975, was issued calling upon him to produce documents and certificates in proof of his age and qualifications. The petitioner replied to such memorandum on 7th April 1975. It has been stated that at that time, one Peary Shaw of the Blue Print Section went on leave on and from 23rd Feb. 1973 and no substitute was provided for in his place. It has been stated that, a note for the necessary arrangements to be made as was given by the petitioner, was not acceded to and on the directions of the officers as mentioned above and because of their machination, the petitioner had to perform the work of the said Shri Shaw, in addition to his own work and the petitioner having refused to comply with or carry on such illegal order, the officers as mentioned above, threatened him with disciplinary action. The petitioner has stated that his prayers and representations for protective materials, were not only refused unilaterally and without any reason or basis, but the said Shri Nandi, on 8th Mar. 1976, issued a notice calling upon him to show cause, why disciplinary action should not be initiated. This, according to the petitioner, was duly replied to, alleging amongst others, that the lack of co-operation and sympathy, apart from the concern for the safety of the subordinates, by Sarbashree Nandi and Mitra, created dissatisfaction amongst the employees in question and ultimately, the drainage department suffered in its workings. It was also alleged that those officers amongst others, were not at all concerned with the suffering either of the department or the employees and they were out to harass him and ultimately, by an order dated 30th Mar. 1976, his special pay amounting to l/5th of the pay was withheld. This action, according to the petitioner, was wholly without jurisdiction and authority, apart from being illegal, arbitrary and mala fide, and was framed at the instance and machination of Sar-bashri Nandi and Mitra, Such action, was of course challenged in Civil Rule No. 5146(W) of 1976, which Rule was made absolute on 20th July 1976 by Amiya Kumar Mookerji J. The learned Judge, while setting aside the order withholding the special pay, made it clear that the order as made, would not prevent the said Corporation, to initiate departmental proceeding, Thereafter, the petitioner obtained Civil Rule No. 15209(W) of 1976 on l'6th Dec. 1976 and his case was that upto the date of the issue of such Rule, no such departmental proceeding as mentioned above, was initiated against him.
5. It has been alleged in the affida-vit-in-opposition in Civil Rule No. 5146(W) of 1976, that the said Shri Mitra, whose other particulars have been mentioned hereinbefore, stated that the petitioner has been absenting himself without notice since 9th April 1976 and as such, the memo as mentioned above, was sent. Such statement was incorporated in paragraph 16 of the concerned affidavit, which again was affirmed as true to the informations of the said Shri Mitra, as derived from the records of the said Corporation, The petitioner has stated that he applied for leave by Registered Post with acknowledgement due and the same was received and duly acknowledged by the said Corporation on 10th April 1976. This application for leave, as appears, and according to the petitioner was accompanied by a Medical Certificate. The petitioner has categorically asserted that the records of the said Corporation would definitely establish that he had duly applied for leave, which application again, was received by the said Corporation and as such the statement or assertions of the said Shri Mitra, regarding, the absence of the petitioner without leave, were false and so, the affidavit, which was affirmed by him to that effect, was malicious and the petitioner had and has reason to believe that the said Shri Mitra made, such maliciously false and incorrect statement on oath, deliberately and with the ultimate object of victimising him and/ or to make a wrongful gain thereby. It has also been asserted by the petitioner that no charge-sheet has yet been made available to him, although by letter dated 20th Aug. 1976, Respondent No. 6, Shri Ajpy Kumar Lala, formerly personnel officer of the said Corporation, according to the petitioner, falsely and maliciously, had also written, that he had not applied for leave. Such statements or the contents of the letter, because of the facts as stated hereinbefore, were also claimed by the petitioner, to be false, apart from being motivated. There was correspondence also on trie point by Messrs. S. C. Mitra & Company, Solicitors for the petitioner, which was replied to by Shri Ajit Kumar Basu, Respondent No. 9 the Law officer of the said Corporation and those replies have also been claimed by the petitioner, to be false and contrary to the records, as he had duly applied for leave. It may be mentioned incidentally that the said Shri Basu, also claimed that there was no leave application by the petitioner. The petitioner has also imputed bad motive irregularity and impropriety to the contents of the said letter of Shri Basu, which was dated 8/l5th Sept. 1976. It should also be noted at this stage, that Civil Rule No. 15209(W) of 1976, which the petitioner obtained against the order of Compulsory retirement, claiming the same to be illegal, arbitrary and void, was made absolute on 4th May I978 holding inter alia amongst others, that the order as made was a nullity on the face of the records and so it was observed that the petitioner was not duly superannuated.
6. In view of the facts and circumstances as mentioned above, it has been claimed by Mr. Banerjee appearing in support of this Rule, that the Respondents, in view of their acts and actions as mentioned above, have wilfully, de-liberately and intentionally made false statements on oath and use them in this Court knowing them to be false and incorrect and for that, they are liable to be proceeded with in accordance with law viz. under or in terms of Section 340 of the Cr.P.C. It was also claimed by Mr. Benerjee that in so doing or taking the action or filing the concerned affidaviti, the Respondents have acted in collusion and conspiracy with each other and they made false statement and/or fabricated false evi-1 dence, by making the statements as mentioned hereinbefore, for the purpose of achieving their common object and intention to get rid of the petitioner and to mislead this Court, it was further claimed that since the Respondents nxade the statements as mentioned above, even knowing them to be false, in a judicial proceeding pending before this Court, so it would be expedient in the interest of justice, equity and fair play that an enquiry should be made into the offence or offences referred to Under Section 195(1)(b) of the Cr.P.C. which appears to have been made or in relation to a proceeding in this Court. It was also claimed by Mr. Banerjee that there are ample and enough reliable evidence to prove and establish that the Respondents have intentionally and deliberately gave false affidavit evidence or had reasons to believe that they were making such false statements to this Court. Section 195 deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence and Sub-clause (b) of Sub-section (1) of the said section, requires that no Court shall take cognizance-
(i) of any offence punishable under any of the following sections of the Penal Code (45 of 1860, namely. Sections 193 to 196(both inclusive). 199, 200, 205 to 211(both inclusive) and 228 when such offence is alleged to have been committed in, or in relation, to any proceeding in any Court, or
(ii) of any offence described in Section 463, or punishable Under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court.
(2). (3) and (4) ....
7. There were two affidavit-in oppositions filed by the answering Respondents and they are dated 12th Feb. 1980 and 5th Jan. 1981 respectively. Both these affidavits were affirmed by Shri Ajjt Kumar Basu, the Chief Law Officer of the said Corporation. The affidavit dated 5th Jan, 1981 would be dealt with by me first as reference to the same, was mainly made by Mr. Banerjee. For convenience, the said affidavit would hereafter be referred to as the said first affidavit and the other one as the said second affidavit.
8. The said first affidavit was purported to be affirmed for and on behalf of all the Respondents. The Chief Law Officer, it may be mentioned incidentally has been impleaded as Respondent No. 9, Apart from saying that Respondent No. 1, Nirmalya Kumar Mukher-jee, was no longer in the services of the said Corporation, the deponent has stated that Shri Shiva Prasad Majumder, Respondent No, 4, was no longer the Administrator of the said Corporation and that Respondents Nos. 5, 6, 8 and 10, were no longer in the services of the said Corporation. He has claimed the proceeding to be not maintainable, apart from being defective in form and a belated one. The fact of appointment of the petitioner with the said Corporation, with some dispute about his initial appointment and the manner of his workings, has been admitted, it has been stated that the petitioner was paid the special pay, for discharging onerous duties in the matter of Blue and Ozalic Printing and that fact according to the deponent, established the fact that the petitioner was required to perform all tasks in the matter. Such printings included rubbing of chemical solution on the papers for Blue print Works, It was claimed that even under the orders of the Executive Engineer, the petitioner was to carry out the work of the Blue Print Section with the assistance of two persons. It has been admitted that the petitioner complained of some skin disease, as a result of his working in the Blue Print Section and on such complaint, his case was referred to the Director, School of Tropical Medicines, Calcutta,. The deponent has stated that from the inception, the petitioner was required to work with the use of a pair of gloves and even though he was informed about that he did not requisition the same. He has also stated that the absence of Feary Shaw could not be used by the petitioner as an excuse, for bringing the workings of the entire Blue print Section, to a stand-still. It was the specific case of the deponent that the petitioner failed to carry out the orders of his superiors and for that, he was duly warned. It has been stated, that in fact, the petitioner was asked to rub the chemical solution on papers, in terms of his terms of appointment id conditions of service. The deponent has stated further that in view of the defiant attitude of the petitioner, in the matter of not making the necessary requisitions, the said Corporation or their Blue Print Section, suffered much and as such, the petitioner was asked to explain why disciplinary action should not be taken against him, for negligence of duty and insubordination.
9. The deponent has claimed that the withholding of special pay, was not penal in nature and was neither illegal nor arbitary and mala fide or against principles of natural justice as alleged. Such withholding of sepecial pay was also claimed to have been passed with authority and duly. In fact, it has been stated that the said action was taken under the directions of the Administrator, who also directed Departmental proceedings to be initiated against the petitioner. The deponent has also stated that the petitioner was absent since 7th Apr. 1976 and as such, the charge sheet was sent by post. It has also been stated that in fact, by a letter dated 20th Apr. 1976, the petitioner was asked to explain his conduct as regards absence from duty without leave with effect from 7th Apr. 1976 and such letter was sent to his address as in the petition. But the letter, which was sent under Registered with A. D. Post, was returned with the remarks 'Addressee out of Calcutta.' The deponent has denied the motive imputed in the matter of issuing the notice. He has denied the existence of any conspiracy or collusion in the matter, for victimising the petitioner and claimed those allegations to be false. It has also been stated by the deponent that from a note in Annexure 'H' to the said first affidavit of the acting Chief Engineer, along with the report of the Executive Engineer, was put before the Administrator for the sanction in regard to the withdrawal of special pay from Mar. 1976 and the Administrator, having considered the report and so also the explanation of the petitioner, duly directed that such special pay of the petitioner, be withdrawn forthwith. This order was passed on 6th Apr. 1976 and accordingly the deponent has stated that the special pay has been withdrawn and the departmental proceeding have been initiated against the petitioner which was approved by the Commissioner on 8th May 1976. It has also been averred that the petitioner was absent since 7th Apr. 1976 and as such, the charge-sheet was sent to him by post at his residential address as mentioned above.
10. The deponent has claimed that there was no conspiracy amongst or between the Respondents or anyone of them, to victimise the petitioner, as falsely alleged or to use any false or fraudulent statements, knowing the same to be false or having reasons to believe that the same was false and to use the same for the purpose of depriving the petitioner of his legitimate rights under the Constitution of India. It has been admitted that Shri Mitra as mentioned above, affirmed the affidavit on 7th June 1976, in Civil Rule No. 5146 fW) of 1976 and it has been stated that the averments with regard to the absence of the petitioner, were made in such affidavit, on the basis of the materials on record. In this connection, the deponent has Bought to place reliance on an office note addressed by the Executive Engineer, Drainage Department to the Chief Law Officer, Corporation of Calcutta, date 31st May 1976. The said note is in Annexure 'A' to the said first affidavit and was to the following effect:
Ch. Law Officer
Please find herewith a leave application of Sri B. B. Basu, Draftsman Blue Print Section dated. 28-5-1976. Shri Basu has been absenting himself from duty on and from 7-4-1976. As he was absenting himself without intimation to the1 Deptt. he was called for explanation for his absence without intimation, but the Registered letter issued to him in this respect was not received by him and the registered letter returned to this deptt, with a note on the envelope 'Addressee out of Calcutta1' hence left. In the leave application referred to above Shri Basu has mentioned that a registered letter sent by him on 9-4-1976 re-t garding his leave from 7-4-1976 was re-i ceived by the deptt. but the deptt. did not receive such letter from Shri B. B. Basu, as reported.
Under the circumstances the case is referred to you with a request to offer your considered views how the leave application now received for the period from 29th May to 30th June, 1976 is to be dealt with.
Executive Engineer, Drainage.
It has also been stated that the petitioner affirmed an affldavit-in-reply in the said Civil Order and replied t0 the statements as mentioned hereinbefore, in the following manner :
That with reference to the allegations contained in paras 16 and 17 of the affldavit-in-opposition I reiterate my statements made in paragraph 22 of the petition that the order withholding my special pay is penal in nature, illegal, without jurisdiction, arbitrary, mala fide and against the principle of natural justice. I further say that the respondent No. 4 or the respondent No. 7 has no authority or jurisdiction to withhold my special pay. I say no copy of the alleged order of the Administrator dated April 6, 1976 has been annexed to the affldavit-in-Opposition and I do not admit the said allegations. Assuming that the Administrator passed the order of withholding special pay on Apr. 6, 1976, I say that even the Administrator cannot withhold the said special pay which has been granted by the standing Finance Committee by its resolution which was approved by the Corporation of Calcutta on Mar. 19, 1965 and in pursuance of which the schedule of establishment has been amended as required Under Section 78 of the Calcutta Municipal Act, 1951. I further state that respondents themselves say that the Ad- ministrator passed the purported alleged order on Apr. 6. 1976 but my special pay was withheld even before that. I reiterate that at any event even the Administrator cannot withhold the special pay in question. I further say that the service regulation framed by the Corporation of Calcutta also do not authorise any withholding special pay under any circumstances. I reiterate that the order of withholding my special pay has been passed illegally and as a penal measure. It may be stated here that his Lordship the Hon'ble Mr. Justice Anil Kumar Sen in his -judgment and order dated Nov. 10, 1974 in Civil Order No. 440 (W) of 1972 inter alia, held that the special pay having been allotted to me personally, deprivation of said special pay would be penal.' in view of the above, it was claimed by the petitioner that no illegality or any irregularity was done or committed, with any criminal intention to mislead this Court or in making such affidavit there was no mens rea behind the same and as such also, no order, in terms of Section 340 of the Cr.P.C. as claimed now, should be passed or would be available to the petitioners.
11. The deponent has also stated that from the records of the said Corporation, it does not appear that the petitioner had applied for leave by registered post with acknowledgment due and the same has been acknowledged by the said Corporation on 10th Apr. 1976 as alleged. It has also been stated that because of the absence of the concerned leave application on record, the petitioner was asked to submit proper leave application to have his absence since 7th Apr. 1976 regularised. The factum of receipt and the authenticity and/or validity of the acknowledgement due receipt, as produced and referred to by the petitioner, has been denied. It has also been stated that assuming though not admitting that the petitioner holds authentic acknowledgement cards showing the service of the concerned leave application by registered post, the same would not necessarily mean that averments in affldavit-in-opposition dated 7th June 1976 as mentioned above, were deliberate falsehood or malicious misstatement, as claimed by the petitioner and that too for the purpose of misleading this Court. The said deponent has stated that in such a vast organisation like the said Corporation, there is the possibility of a registered letter being mislaid before the same could be placed in the relative file and such happenings cannot be ruled out altogether. As such, it has been stated by the deponent that even assuming though not admitting that the petitioner had actually sent his leave application and that he got back the acknowledgement card, showing that the letter had reached the office of the said Corporation, it might still be possible that the leave application of the petitioner was not placed in the relative file, through inadvertence on the part of some dealing Assistant and when the Executive Engineer, Drainage, found that there was no such leave application on record, he duly asked the petitioner to submit fresh application for regularising his leave. Admittedly, at the time when the said affidavit-in-opposition was filed there was no statement disclosed by the petitioner, regarding the receipt of the concerned acknowledgement due card and as such, the deponent has stated that such statements in the affidavit as mentioned above, were made bona fide and in good faith and on the basis of the facts as mentioned above. It has also been claimed that there was no malice or bad faith or guilty knowledge or intention behind the concerned averments. It has also been asserted that there was no deliberate misstatement on the part of the authorities concerned, nor was there any object of victimising the petitioner or to make any wrongful gain by making the statements in the suffering any shock or injury as alleged. It has been emphatically denied that any of the Respondents gave any wilful or intentional false statements as claimed by the petitioner for which on they are liable to be proceeded with under the provisions of the Cr.P.C. as mentioned above. The deponent has claimed that this should be a case where it is not expedient in the interest of justice, equity and fair play that an enquiry or any steps should be taken in terms of or in view of the provisions of Section 195(1)(b) of Cr.P.C. In any event, it has been denied that due to vindictiveness or pressurisations made by the Respondents, the petitioner has suffered or is suffering any shock or injury as alleged. It has been claimed that the illness of the petitioner as contended, cannot be regarded as a sufficient explanation for the delay in making the application, which as mentioned above, has been claimed to be not maintainable for unexplained delay.
12. The said second affidavit was filed on behalf of Respondent Nos. 2, 3, 7. 8, 9 and 10 and the statements and defence as contained therein, are, if not appropriately,,but more or less the same, as in the first affidavit.
13. The said first and the said second affidavit-in-replies were dated 9th Jan. 1981 and 15th Spt. 1981 respectively. The reply dated 9th Jan. 1981 which is in answer to the said first affidavit would hereafter be referred to as the first reply and the other one would hereafter be referred to as the second reply.
14. It has been claimed in the said first reply that the said first affidavit was not in form and not maintainable. It has been claimed that the deponent of the said first affidavit, had no right or authority to affirm such affidavit on behalf of the Respondents concerned and the relative Respondents, against whom personal allegations have been made, not having duly replied to such allegations, it should be found and observed that there was no return to the allegations as made. The said first affidavit has also been claimed to be dismissed as the same was filed without obtaining due and prior leave from this Court. In any event, the authority and competence of the Chief Law Officer, to make and affirm the said first affidavit, has been denied and disputed. It has also been stated that the said Chief Law Officer, being at present an employee of the said Corporation, cannot as such, have any authority to affirm the concerned affidavit, for and on behalf of those persons who are no longer serving the said Corporation. In fact, it has been admitted that the Respondent No. 1 was no longer the Commissioner of the said Corporation, so also the Respondent No. 4, was the Administrator of the same and Respondents Nos. 5,6,8 and 10 were no longer in the services of the said Corporation.
15. The application for necessary prayers Under Section 340 of the Cr, P. C. has been claimed to be due and bona fide and to be maintainable. The deponent has raised dispute regarding his appointment and transfer but in my view nothing turns on such facts, in view of the claims and contentions as raised in this proceeding. The steps and actions as taken, were claimed and reiterated to be improper,' undue, harsh, illegal and irregular, apart from being motivated. It was further claimed that actions against the petitioner were taken as he succeeded in all the proceedings before this Court, the particulars whereof have been mentioned hereinbefore. In fact, the action as impeached in this case, has been claimed t0 be inflicted or taken as a repercussioriary measure against the petitioner, for his successive successes in this Court. The petitioner has also claimed that the authorities concerned, were out to put him into troubles and as such, were trying to find out fault with him and with that end in view, the charge-sheet in the instant case, was issued on the grounds which were nothing but flimsy. He has also claimed, that in terms of the determinations in Civil Rule No. 15209(W) of 1976, rubbing of chemicals solution on papers for Blue Print was pot a part of the duty of the petitioner. The petitioner has stated that there was no neglect of duty on his behalf and he did not commit any act of insubordination as alleged. He has claimed that because of the hazardous duties, which the petitioner was performing, he was entitled to certain protections, but such protections were refused and neglected to him.
16. The petitioner has claimed that the withholding of special pay, by the Administrator in his case was illegal, arbitrary, mala fide and unauthorised and not only such action, but whatever actions were taken against the petitioner, they were motivated. The particulars of motive have been mentioned in the petition. In fact, the petitioner has stated that because of the untrue and false affidavit made by the authorities concerned, they have not only misled this Court, but have exposed themselves to appropriate action in law. For such act on their part and in the facts and circumstances of the case the petitioner has contended that they cannot claim any exoneration and the explanations as given were not iustified. The petitioner has stated that the respondents, knowing full well, made deliberate and false statements, not only for victimising and harassing the petitioner, but also to have an order in their favour and against the petitioner, by misleading this Court.
17. The said second reply was also in the same line as that of the said first reply.
18. There were no disputes with regard to the facts in respect of or up to the three Civil Rules as mentioned hereinbefore and the results or the outcome of them. So. there were no doubt or any dispute that the orders transferring the petitioner and withholding his special pay, were bad. But that apart, the admitted position is that, the petitioner has retired automatically and in due course on reaching his age of superannuation, with effect from 4th May 1978. There may also be iustification in the submissions of the answering respondents that in a vast organisation like the said Corporation, there may be cases when and where documents are difficult to be traced out, as or if they are not duly incorporated in the relevant records or files. Such explanations, even though, are very difficult to be accepted, are sometimes, required to be accepted, considering the general conduct of the employees, working in many cases, specially in such an organisation like the said Corporation. Such explanation or defence as taken on affidavit by a responsible officer like t.he Chief Law Officer of the said Corporation, will have to be considered in the light of the circumstances as mentioned above. But these embarrassing position, could certainly have been avoided if the petitioner had disclosed his application for leave and the acknowledgement due receipt, relevant for the same, a the appropriate stage and that in my view, would not have emboldened the respondents concerned, to take such defence as mentioned above, which Mr. Banerjee, has claimed, not only to be unfortunate and untrue but improper, mischievous and misleading. If the defence as taken and as mentioned hereinbefore is believed or accepted, there would perhaps be no cause or occasion for misleading this Court or for any action Under Section 340 of the Cr.P.C. Mr. Banerjee claimed that the records and the affidavits as referred to and relied on, do support that deliberate false statement, with regard to the leave application of the petitioner or the receipt of the same, by the authorities of the said Corporation, were made, in fact, apart from relying on the copy of the statutory form for application for leave other than casual leave of the petitioner, Mr. Banerjee referred to the records in Annexures 'J', 'Jl' and 'J2' to the petition of motion, in support of his submissions as aforesaid and more particularly for establishing the fact that such leave application was received by the said Corporation or its authorities on 10th Apr. 1976, Mr. Banerjee submitted that the affidavits as filed on the basis of the records, were not in consonance with 0. 19, Rule 3 of the Civil P. C, as the appropriate records were not specified, from which the deponent of the affidavits rederived the knowledge of the facts. In fact, it was claimed by Mr. Banerjee that since the respondents were duly served with the proceedings and the deponent of the affidavit viz. the Chief Law Officer had nothing to do in the matter nor he was conversant with the workings or facts as involved in respect of the drainage department of the said Corporation, the said Chief Law Officer, was not the competent person to affirm and file the necessary returns and as such, the learned Registrar Appellate Side, should be directed to lodge the necessary complaint, in the facts of this case. It was definitely asserted by Mr. Banerjee that the petitioner was made to suffer and was also oppressed In various ways and means and such false statements as mentioned above were made knowing them to be false and incorrect and that too, to have this Court mislead and to have the sufferings of and the oppressions to the petitioner, continued and increased.
19. Mr. Ghosh submitted that before making an order as asked for, the Court must be satisfied about the mens rea or the criminal intention behind the act as alleged viz. the making of the concerned statements in the affidavits and also to find out and see, whether it has been established that by making such statements or in taking resort to them, any malicious intention has been established, to mislead this Court, knowingly, and thus, either to prejudice the case of the petitioner or to have an order prejudicial to his interest. It was claimed by Mr. Ghosh that sympathy, which the said petitioner has pleaded for his alleged sufferings being the basis of the orders as asked for, are no basis and in fact the same has no application in a matter like this. It was claimed by him that the real intention behind the act or action or the statements as made are only material issues to be judged, found out and determined, to come to a conclusion on the expediency of the case as involved. It was, in short claimed by Mr. Ghose that expediency to protect the interest of justice, in the circumstances of given case, would be only precondition in a case like this, under the provisions of Section 340 of the Code of Criminal Procedure.
20. In support of his submissions, Mr. Ghose firstly referred to the determinations in the case of Shabir Hussain Bholu v. State of Maharashtra : AIR1963SC816 , a case Under Sections 476 to 479 of the old Cr.P.C. of 1898, which was incorporated in Chap. XXXV of that Code, dealing with 'Proceedings in case of certain offences affecting the Administration of Justice', whereas the provisions involved in this case, are incorporated in Chap. XXVI of the new Code, making 'Provisions as to offences affecting the Administration of Justice.' It has been observed in that case amongst others that for the purpose of making a complaint against a person for intentionally giving false evidence or for intentionally fabricating false evidence at any stage of the proceeding before it, the Court should follow the provisions of Section 479A (1). It has also been observed that where the offence consists of intentionally giving false evidence 'in any stage of judicial proceeding' it is no doubt true that as Under Section 476 it is the Court which disposes of such judicial proceeding which primarily has to act Under Section 479A.
21. The second case, to which reference was made by Mr. Ghose, was that of Baban Singh v. Jagdish Singh : 1967CriLJ6 where it has been observed that if a false affidavit is sworn by witness in a proceeding before a Court, the offence would fall Under Sections 191 and 192, rather than Under Section 199 of the Criminal Procedure Code, 1898. It has also been observed that a case of the nature as involved, will have to be considered from the standpoints viz. does the swearing of the false affidavits amount to an offence Under Section 199, Indian Penal Code or under either Section 191 or 122, Indian Penal Code? if it comes under the two lat- ter sections the present prosecution cannot be sustained. Section 199 deals with a declaration and does not state that the declaration must be on oath. The only condition necessary is that the declaration must be capable of being used as evidence and which any Court of -justice or any public servant or other person, is bound or authorised by law to receive as evidence. Section 191 deals with evidence on oath and Section 192 with fabricating false evidence. If we consider this matter from the standpoint of Section 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the truth because an affidavit is a declaration made under an oath. The definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within Section 192, it lays down inter alia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may cause any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. When Baban Singh and Dharichhan Kuer made declarations in their affidavits which were tendered in the High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing to cause the Court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of Sections 191/192 rather than Section 199 of the Indian Penal Code. They were thus prima facie guilty of an offence of giving false evidence or of fabricating false evidence for the purpose of being used in a judicial proceeding.
22. The third case as referred to by Mr. Ghose was that of Chaioo Ram v. Radhey Shyam, : 1971CriLJ1096 . In that case, in course of writ proceedings, several affl-davits were filed in the High Court by the contesting parties. In one of the affidavits the appellant stated that he was not acting as a Sarpanch during the pendency of an injunction restraining him from functioning as Sarpanch. An application was moved by the respondents Under Section 476 Cr.P.C. 1898, for his prosecution. On the averments and materials, a learned single Judge directed the necessary complaint to be filed for the statements in the affidavit, which was affirmed by a Division Bench and it was observed by the Supreme Court, while allowing the appeal, that (i) The crucial point in Section 479-A is that itis only a witness who has appeared before a Court who can be proceeded against and not a person who has merely filed an affidavit. Since the appellant did not appear as a witness art the High Court Section 479-A is inapplicable and it cannot operate as a bar to proceedings Under Section 476. Cr.P.C.
(ii) The prosecution for perjury should be sanctioned by the Courts, only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. 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 foundation for the charge. In dealing with perjury prosecutions, the question of long lapse of time of more than ten years is relevant.
(iii) In view of the fact that the appellant had only committed some irregularity without any dishonest motive the appeal is allowed and order is set aside.
23. The fourth and the last case, to which Mr. Ghose referred, was that of Jotish Chandra Chaudhury v. State of Bihar, : 1969CriLJ257 , where it has been observed that for conviction Under Section 199, false statements in a declaration must be found to be touching any point material to the object, for which declaration is made, It has also been observed that for conviction Under Section 200, declaration should be used or attempted to be used corruptly. In the case under reference, the appellant filed an affidavit, giving the date of birth of his minor son, on the basis of School record, knowing that the same was wrong, but giving of such wrong date, did not touch any material point in appeal and thereby the appellant stood to no gain or any advantage and since the declaration was no+ shown to be used corruptly, filing of complaint by Court Under Sections 199 and 200, was found to be unjustified.
24. The case of Chajoo Ram v. Radey Shyam (1971 Cri LJ 1096)(SC)(supra, as cited by Mr. Ghosh was sought to be distinguished on facts by Mr. Banerjee and more particularly on the basis of the holdings therein that the crucial point in Section 479-A would be that it was only a witness who had appeared before a Court who can be proceeded against and not a person who had merely filed an affidavit, Mr. Banerjee in fact made a specific reference to the contents in para 4 of the determinations, in support of his contentions as mentioned above. That apart, he made references firstly, to the determinations in the case of Dr. B. K. Pal Chaudhary v. State of Assam : 1960CriLJ174 , which was a determination Under Section 479-A of the Code of Criminal Procedure, 1898. The said determination was referred to by Mr. Banerjee, for the purpose of establishing the requirements, if and when a complaint Under Section 340 of the new Cr.P.C. would be filed. It has been observed that the combined effect of Section 479A (i) and (v) would be to require the Court intending to make a complaint, t0 record a finding that in its opinion a person appearing as a witness has intentionally given false evidence and that for the eradication of the evils of perjury and in the interest of justice, it is expedient that such witness should be prosecuted for the offence and to give the witness proposed to be proceeded against, an opportunity of being heard as to whether a complaint should be made or not. It has also been observed that where therefore in the order passed by the High Court directing complaint to be filed against a witness there would be no finding recorded by it that the witness has intentionally given any false evidence or that it was expedient to proceed against him for the eradication of the evils of perjury and in the interests of justice, and further, the High Court did not give the witness a proper hearing to which he was clearly entitled under the terms of Section 479-A (v). That the order was made in breach of the express provisions of the section and could not be allowed to stand apart from holding further that the finding required to b? made by Section 479-A (i) was only of a prima facie nature and that it could be a finding which would have any force at the trial upon the complaint made pursuant to that findings.
25. The next case on this point, which was cited by Mr. Banerjee was that of Kuppa Goundan v. M. S. P-Rajesh. : 1966CriLJ1503 . The said determination has laid down the necessary contentions of applicability of Section 479-A to the effect that the Court before delivering judgment or at the time of delivering the same, must form the opinion that particular witness gave false evidence and for that, there must be materials placed before the Court to form such opinion. It has also been observed in that determination that materials placed after judgment can be invoked only in some exceptional cases and circumstances. Thereafter and lastly Mr. Banerjee referred to another Bench determination of this Court in the case of Kalipada Maity v. Sukumar Bose : AIR1962Cal639 . This was also a determination Under Section 479-A of the old Criminal Procedure Code and has dealt with the scope of the words 'person appearing as witness' and the meaning of the words 'person making affidavit but not personally appearing,1' It has been observed that Section 479-A applies to the offence of intentionally giving false evidence or intentionally fabricating false evidence for use at any stage of the judicial proceeding i. e. to an offence Under Section 193 IPC Further, it applies to a person appearing before the Court as a witness. Apart from observing that a person who has sworn an affidavit before the Commissioner of Affidavits appointed by the Court cannot be said to have appeared in person before the Court where the Court in exercise of his discretion has not required his personal appearance for the purpose of cross-examination. Section 479-A, Cr. P, C. is limited to persons appearing before any Court as witnesses, and the fact that the term 'witness' by itself may include persons who have made affidavits filed before any Court, cannot be taken to mean that such persons are also persons appearing before any Court as witnesses. The above mentioned three cases were cited by Mr. Banerjee for the purpose of the form of the order, which was required to be followed or made by this Court, if it was satisfied about the offences as alleged to have been committed.
26. Under Section 340 of the Cr.P.C. the Court can exercise power, if it is of the opinion, on being satisfied, that the person against whom complaint is to be lodged, has committed perjury or fabrication of evidence and in the interest of justice, it would be expedient that such person should be prosecuted for the offence, which appeared to have been committed by him. In fact, only on such formation of opinion duly, the Court has to take the action, in the manner as prescribed. It has been observed in the case of K, Karunakaran v. Eachara Warrier : 1978CriLJ339 that whether suo motu or on an application by a party Under Section 340(1), Cr.P.C. a court having been already seized of a matter may be tentatively of opinion that further acj tion against some party or witness may be necessary in the interest of justice. In a proceeding Under Section 340(1), Cr.P.C. the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having re--gard to the overall opinion formed by the court in the earlier proceedings. At such an enquiry irrespective of tho result of the main case, the only question is whether a prima facie case is made out which, if unrebutted. may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. The party may choose to place all its materials before the court at that stage, but if it does, not, it will not be estopped from doing later in the trial, in case prosecution is sanctioned by the Court, and an enquiry, when made, Under Section 340(1), Cr.P.C. is really in the nature of affording a locus paenitentiae to a person and if at that stage the court chooses to take action, it does not mean that he will not have full and adequate opportunity in due course of the process of j,ustice to establish his innocence, apart from holding that Chap. XXVI of the Criminal P. C. (2 of 1974) makes provisions as to offences affecting the administration of justice. Section 340 Cr.P.C. with which the Chapter opens is the equivalent of the old Section 476. Criminal P. C. (5 of 1898). The Chapter has undergone one significant change with regard to the provision of appeal which was there under the old Section 476B. Criminal P. C. Under Section 476B, Cr.P.C. (old) there was a right of appeal from the order of a subordinate court to the superior court to which appeals ordinarily lay from an appealable decree or sentence of such former court, Under Section 476B (old) there would have ordinarily been a right of appeal against the order of the High Court to the Supreme Court. There is, however, a distinct departure from that position Under Section 341, Cr.P.C. (new) with regard to an appeal against the order of a High Court Under Section 340 t0 the Supreme Court. An order of the High Court made under Sub-section (1) or Sub-section (2) of Section 340 is specifically excluded for the purpose of appeal to the superior court Under Section 341(1), Cr.P.C. (new). This is, therefore, a new restriction in the way of the appellant when he approaches the Supreme Court under Article 136 of the Constitution.
27. The provisions of Section 340. are more or less procedural and indicates how a complaint in respect of offence referred to in Section 195(1)(b) is to be made. The Court, in a proceeding Under Section 340 or before directing a complaint to be lodged must in my view, form the opinion on being satisfied or come to the conclusion on such satisfaction that the person charged, has intentionally given false evidence and that, for the eradiction of the evils of per-, jury and in the interest of justice, it is expedient that he should be prosecuted for the offence and furthermore the Court, at the time of or before delivering the judgment, must, as mentioned above, duly form the opinion that the person charged, gave false evidence and such formation of opinion, must be on consideration of materials duly placed. These apart, the Court should, before directing a complaint to be filed, also consider, if the evidence as led, was intentionally done and knowing the same to be false or the same was intended to have some unlawful gain over the adversary and was aimed at having some advantage irregularly. Thus, like all other Criminal trials or proceedings, the existence of mens rea or the criminal intention behind the act as complained of. will also have to be looked into and considered, before any action Under Section 340 is recommended. Mere sufferance of the petitioner, because of the inaction or irregular or improper or wrong action of his adversary, would not be enough. If there is any doubt or any semblance such doubt in the mind of the Court, in respect of the bona fides of the defence of the person charged of the action, the Court, in my view, will not be justified in exercising the power to direct the lodging of a complaint Under Section 340 simply because such action has been filed. The purpose of making a complaint against a person, would be for intentionally giving false evidence or for intentionally fabricating such evidence and that too with the aim and object as mentioned hereinbefore, at any stage of the proceeding.
28. I further observe that if a person affirms a false affidavit in a proceeding in a Court, his case would also come under the provisions of the Code as referred to hereinbefore and the principles, similar to those as mentioned above, if he is nought to be proceeded with Under Section 340, would apply statements as claimed to be violative or infringing the rights, must in my view, be found to be touching the point, material to the object,
In the instant case, there cannot be any doubt that a huge organisation like the said Corporation. would receive many such letters and correspondence as in the present case and if they are not duly placed in the relevant files, the person, who would make and file an affidavit, on the basis of such records, would certainly be misled or there would be such a chance and such unfortunate affidavits as in this case, may be the result. The defence to the above effect, when taken, which in fact was the case of the answering respondents, would have to be considered even though, such defence, as mentioned hereinbefore, from an organisation like the said Corporation, was not expected. But, this unfortunate circumstance could have certainly been avoided, if the petitioner had disclosed his application for leave and Annexures J, Ji and J2 as mentioned above in time or at the appropriata stage. Perhaps, because of such inaction on his part. The Respondents have been emboldened or had the occasion to take the defence as mentioned hereinbefore. But, since such contingencies have not been proved or established by any legal evidence, in my view, it would not be safe to rely on the same and to hold that the defence as taken, was improper or such defence as taken, was resorted to intentionally and with the ultimate end or aim as mentioned above, knowing the same to be false.
29. In view of the above, the application fails, so also the Rule, no order asking for the sanction, in my view should be made on the pleadings and the Rule is thus discharged. There will be no order as to costs.
30. It should be placed on record, that during the course of the proceedings, Mr. Banerjee. at the request of the Court, tried to have the matter settled out of Court and he ultimately informed that because of some small differences between the parties and not the learned Lawyers, all his attempts failed. Although I am discharging the Rule, I would expect that the legal dues of the petitioner, should be paid or made available to him by the said Corporation forthwith, considering the fact, that after serving them for a long time, the petitioner has already retired in due course.