Fayaz Ahmad Sheikh vs Civil Judge Jr. Div. Ashmuqam

Mohammad Yaqoob Mir, J.—Suit for declaration and permanent injunction captioned Mst. Rehana Akhtar v. Afzal Sheikh has been

decreed. Nikah Nama has been declared to be fabricated and illegal, therefore void ab initio. Plaintiff has been declared as unmarried person. The

defendant has been perpetually restrained from causing any interference with the personal life of the plaintiff. Learned trial court has decreed the

suit at the same time has issued direction No. 4 which reads as under:

One witness namely Fayaz Ahmad Shah S/o. Ghulam Mohammad Sheikh R/o Budroo made false statements before the court, for which he is

liable for panel consequences. No one shall be allowed to pollute the stream of justice. Two statements of the witness are on record and both are

on oath. One statement is false, SHO Ashmuqam shall initiate proceedings as required under law against above said witness for giving false

statement.

It is this direction which is challenged by medium of this petition whereunder, supervisory powers are sought to be invoked as permissible under

Section 104 of the Constitution of J&K.

Learned counsel for the petitioner has rightly projected that trial Court was required to adhere to the procedure prescribed under Section 479-

A Cr.P.C. Svt. 1989.

Section 479-A Cr.P.C. reads as under:--

479-A. Procedure in certain cases of false evidence

Notwithstanding anything contained in sections 476 to 479 inclusive, when any Civil Revenue or Criminal Court is of opinion that any person

appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false

evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of

false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been

committed by him, the Court shall, at the time of the delivery of the judgement or final order disposing of such proceeding, record a finding to that

effect, stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in

writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward

the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court take sufficient security for his

appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate:

Provided that where the Court making the complaint is the High Court, the complaint may be signed by such officer of the Court as the Court may

appoint.

It is clear as to how a witness who has intentionally given false evidence or has intentionally fabricated false evidence is to be dealt with:

(a) Such witness has to be prosecuted for the offence which appears to have been committed by him.

(b) The court shall, at the time of delivery of the judgement or final order, record a finding stating its reasons therefor then has to give the witness an

opportunity of being heard.

(c) Thereafter to make a complaint in writing signed by the Presiding Officer setting forth the evidence which, in the opinion of the court, is false or

fabricated.

(d) To forward the same to a Magistrate of First Class having jurisdiction, and if the accused person is present before the court, take sufficient

security for his appearance before the Magistrate.

Learned counsel for the petitioner was pointedly asked as to whether the defendant (Judgement Debtor) has filed an appeal or any proceeding

against the judgement but to his information, no such appeal has been preferred.

Exercise of supervisory powers so as to keep the proceedings within the bounds of law is imperative. Trial court has proceeded against the

witness in deviation to procedure and law, so interference is warranted. Learned trial court shall proceed against the witness (petitioner) strictly in

accordance with the procedure prescribed under Section 479 A Cr.P.C. In the said background Para 4 of the judgement as quoted above is

expunged to the extent it provides for action to be taken by SHO Ashmuqam.

Petition allowed. Judgement impugned to the extent indicated above shall stand modified. Copy of the order be sent to the trial court for

information and follow up.