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Smt. Vimla Kapoor Vs. Rajinder Kapoor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1971CriLJ1754
AppellantSmt. Vimla Kapoor
RespondentRajinder Kapoor
Excerpt:
- orderj.n. bhat, j.1. this revision petition is directed against the order of the sessions judge, srinagar, dated 29-7-1970 whereby he has ordered- the prosecution of the petitioner under section 191/193, rp.c.2. the brief facts necessary for the disposal of this case are that oae rajinder kapoor brought an application under section 9 of the hindu marriage act against the petitioner in the court of the district judge, srinagar. on the pleadings of the parties a preliminary- issue of jurisdiction was framed by the learned judge and it was decided in favour of the husband. thereafter an application was moved on behalf of the husband that the petitioner be prosecuted for perjury on the following grounds:-in her written statement dt. 12-7-1969 in para 6 the petitioner had stated:-the.....
Judgment:
ORDER

J.N. Bhat, J.

1. This revision petition is directed against the order of the Sessions Judge, Srinagar, dated 29-7-1970 whereby he has ordered- the prosecution of the petitioner Under Section 191/193, RP.C.

2. The brief facts necessary for the disposal of this case are that oae Rajinder Kapoor brought an application Under Section 9 of the Hindu Marriage Act against the petitioner in the Court of the District Judge, Srinagar. On the pleadings of the parties a preliminary- issue of jurisdiction was framed by the learned Judge and it was decided in favour of the husband. Thereafter an application was moved on behalf of the husband that the petitioner be prosecuted for perjury on the following grounds:-

In her written statement dt. 12-7-1969 in para 6 the petitioner had stated:-

the respondent after marriage was brought to Srinagar where she stayed with her husband upto July/Aug., 1966 and then they shifted to Varanasi.

In para 7 of her written statement it was stated by her:.-

For the respondent it became daily routine to receive shower of abuses, criticism of her parents at the hands of her husband, mother-in-law, father-in-law, and sister-in-law and used to receive kicks and beating off and on from her husband. She was not permitted to go to her parents in Delhi so much so if the father of the respondent came to Srinagar to meet her, he was not permitted to see her. ... In about the year 1965-66 the petitioner fought with one of his brothers and left Srinagar with his family to settle down at Varanasi. Since August 1966 the petitioner and respondent have been residing in Varanasi.

(Quoted from the interim order of the Court below).

On the other hand in her statement which was recorded by the Commissioner on 15-1-1970 she has stated:-

I never lived in Srinagar at all and in the same statement she has stated I have never been to Srinagar and I do not know whether the parents of my husband ever resided at Bararas. I do not know their whereabouts.

(Quoted from the interim order of the court below.)

The learned trial Judge says that this statement is clearly inconsistent and irreconcilable on the points contained ip. the written statement. Thereafter the District Judge comes to the conclusion that in the interest of justice for the eradication of the, evils of perjury this lady should be prosecuted. Then he has .quoted some authorities which I shall refer soon. As I indicated above the application for restitution of conjugal rights is still pending and has not been finally decided. This is admitted by the Sessions Judge himself and he has devoted a lot of space in his order to the discussion of this very fact and in penultimate para of his order stated.

That being so, there is no legal objection to the complaint being made in the instant case at the present stage when the case still awaits the final disposal.

Long arguments have been addressed by the learned Counsel for the petitioner. It appears that the parties are fighting a number of cases against each other and every, attempt is made by each one of-them to harasss and embarrass the other. Ordinarily people make so many contradictory statements and seldom applications are made for proceeding against them for perjury and still fewer are the instances where the Courts have sanctioned prosecution in such cases. This is one aspect of the matter.

3. Apart from this aspect the learned Counsel for the. petitioner has pointed out that the order under revision suffers from legal defects in so far as there is ,no finding by the learned Sessions Judge that, it is expedient that this lady should be prosecuted for perjury for the eradication of the evils of perjury. Although there is no clear finding in these words but the order of the Sessions Judge can be understood to have fulfilled this requirement, as on page 6 of the order he says that :-

I have already held that this is a fit case in which in the interests of justice and for eradicating the evils of perjury the respondent may be prosecuted for perjury....

Therefore this contention of the learned Counsel for the petitioner is not correct. Then the Sessions Judge goes on to consider whether this is the stage at which the prosecution should be launched. As I indicated earlier the application for conjugal rights is yet sub-judice and only a preliminary issue has been decided. This clear language of the section says that the prosecution shall be ordered 'at the time of the delivery of the judgment or final order disposing of such proceedings.'... The 'proceedings' mean the whole case and not a preliminary issue. The Sessions Judge has quoted some authorities but it was argued by the learned Counsel for the petitioner that he misunderstood the authorities. He has quoted from : AIR1963SC816 but in the first paragraph which he has quoted, the Supreme Court has held that:-.. at the time of the delivery of the judgment or final order disposing of such proceedings, record a finding to that effect ....

which shows clearly that even that authority lays that the proper time for passing such an order is when the final order or judgment is given in the case. The procedure of- this -section is analysed in note 1260B of the Code of Criminal Procedure by B. B. Mitra (fourteenth edition), 1967 Vol. II at page 994 and it says as under:-

Section 479-A contemplates three steps. - '

(1) the recording of a finding in terms of Sub-section (1) at the time of the delivery of the judgment or final order disposing of the judicial proceedings in the course of which a witness has given false evidence.

(2) issue of notice to the witness and giving him opportunity of being heard; and

(3) making of a complaint in writing signed by the Presiding Officer of the court setting forth, the evidence which, in the opinion of the court, is false and forwarding the case to a Magistrate of the first class having jurisdiction to try the case....

The principle behind this provision of law is very sound.- The intention is to, prosecute only such persons who have1 given false evidence in cases before a, court so that the court acts upon such] evidence at the time of final judgment or order, taking into consideration the whole evidence and the entire circumstances of a particular case and that too only when it is expedient in the interest of justice and for purposes of eradicating the evils of perjury and fabrication of false evidence. It is the experience of everybody who has something to do . with the courts of law that in every case usually a number of witnesses tell lies and give false evidence and take contradictory stands in the same proceedings. If this power was used so generously, it would lead to prosecution of dozens of witnesses in each and every case. That would make the application of this section in every case rather the abuse of process of the court. The use of this section therefore requires circumspection judicious and judicial approach and consir deration of all circumstances and facts of the case which are before a court in their entirety only at its final stage and can be determined only by means of the final order or judgment as the case may be.

4. Obviously therefore, on the bare reading of .the Section 479-A, Criminal Procedure Code, the order for prosecution of the petitioner is premature and cannot be upheld, and is here-; by vacated.

5. The result is that the revision is accepted and the order of the District Judge vacated.


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