Harmandar Singh vs Harbir Singh

S. S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure, 1974 (hereinafter to be referred to as the Code) relates to quashment of order passed by Additional Sessions Judge, Jalandhar, dated 22.9.1988 whereby the appeal filed by the present petitioner against the order of Sub Divisional Magistrate, Nakodar, dated 19.2.1981 was dismissed.

The brief facts relevant for the disposal of this petition are that in proceedings under Section 145 of the Code which were pending before the Sub Divisional Magistrate, Nakodar, both the parties filed affidavits and in those proceedings the possession of the land in dispute was held to be that of the present petitioner by the SubDivisional Magistrate, Jalandhar vide his order dated 18101982. However, in those proceedings an application under Section 340 of the Code moved by the present petitioner against the present respondent was not decided by the Sub Divisional Magistrate. The main ground in the application taken was that the affidavit dated 451981 and the statement dated 10.6.1981 of Shri Harbir Singh are false and that he had committed perjury. The revision filed by Harbir Singh against the aforesaid order was dismissed, as withdrawn whereas the application of the present petitioner under Section 340 of the Code was referred back to the trial Court for disposal.

The Sub Divisional Magistrate vide his order dated 24121982 on the application under Section 340 of Code filed by Harbir Singh held that the said Court had no jurisdiction to prosecute the other party, as the case had already been decided on 18101982.

Harmandar Singh again filed an appeal which was decided by the Additional Sessions Judge, Jalandhar, on 20121985. In that appeal the order of the Sub Divisional Magistrate was set aside, and the case was remanded to the Sub Divisional Magistrate, Jalandhar with the direction that the prayer of the present petitioner under Section 30 of the Code for filing the complaint against the respondent be considered, and decided on merits.

Thereafter, the Sub Divisional Magistrate, Nakodar vide his impugned order dated 1921987 held that at the time of filing of the affidavit dated 451981 Harbir Singh (i. e. present respondent) claimed his possession on the landindispute, whereas, the Sub Judge Ist Class, Nakodar, vide order dated 1381962 found Harmandar Singh, as owner in possession of the land in dispute. Application under Section 340 of the Code was directed by the Sub Divisional Magistrate, Nakodar on 1921987 to be filed.

Aggrieved against this order of the Sub Divisional Magistrate, Nakodar, Harmandar Singh filed an appeal which was dismissed by the Additional Sessions Judge, Jalandhar, vide his order dated 2291988. The Additional Sessions Judge held that there is no case of prima facie deliberate falsehood on the part of the respondent and that granting of permission would be a clear misuse of the process of law.

Harmandar Singh who was present in person was heard at length, whereas none appeared on behalf of the respondent i. e main grievance of the petitioner is that in the present case the offence of perjury is proved to have been committed. In the main proceedings under Section 145 of the Code, Harmandar Singh was held to be in possession and that the affidavit given by Harbir Singh and the statement made by him that Harbir Singh himself was in possession of the land in dispute was false and, that the refusal to complaint by the Courts below, was arbitrary, and amounts to abuse of the process of Court. It was also argued that the petitioner has committed this offence twice both in his affidavit, as well as in his statement on oath recorded by the Sub Divisional Magistrate, Jalandhar on 1061981. This argument is devoid of any merit.

It is pertinent to mention that while deciding proceedings under Section 145 of the Code the Sub Divisional Magistrate has not specifically held that the affidavit filed by Harbir Singh on 451981, or that his statement dated 1061981 was false or that he has committed perjury. Such a finding was not given against Harbir Singh, respondent, by Sh. O. S. Khurana, Additional Sessions Judge, Jalandhar, in his order dated 20.12.1985 or by the Additional Sessions Judge, Jalandhar in his earlier order dated 1821984.

In the impugned order passed by the Sub Divisional Magistrate, Nakodar, dated 1921987, it is specifically mentioned that the suit regarding possession of the land between the parties was also pending when Harbir Singh filed his affidavit dated 4.5.1981, and also at the time when he made his statement dated 1061981, whereas the said suit was decided by Sub Judge Ist Class, Nakodar on 1381982 in favour of Harmandar Singh (present petitioner) who was held to be owner in possession of the land in dispute, and, as such it has rightly held that no action under Section 340 of the Code was called for. The Additional Sessions Judge, Jalandhar has rightly held that it was not a case of primafacie deliberate falsehood on the part of the respondent and as such the grant of permission would be clearly misuse of the process of the law. I find support on this point from the authoritative pronouncement of the Apex Court in the case of Chajoo Ram v. Radhey Sham and another, AIR 1971 S.C. 1307, wherein it was observed as under :

"The prosecution for perjury should be sanctioned by Courts only in those cases, where the perjury appears to be deliberate, and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered 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 primafacie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge."

Reliance was placed by the petitioner on the authority in the case of R.P. Kapoor v. Partap Singh Kairon, AIR 1966 Allahabad 66, wherein it was held that :

"The offence under Section 211, Penal Code appeared to have been committed by the opposite party and it was expedient in the interest of justice that further inquiry into the matter should be made by the Magistrate."

The facts of the authority in the case of R. P. Kapoor's case (supra) were entirely different from the facts of the case in hand. As such this authority is not applicable to the facts and circumstances of the case in hand and the same is clearly distinguishable.

Mere fact that on the two occasions the Additional Sessions Judge, Jalandhar had to remand the case to the Sub Divisional Magistrate for consideration of the application under Section 340 of the Code, or the fact that proceedings under Section 145 of the Code were decided in favour of Harmandar Singh, petitioner, or from any other material on the record, it cannot be held a primafacie case of deliberate falsehood on the part of the present respondent in filing his affidavit dated 451981 or while making the statement dated 1061981 before the Sub Divisional Magistrate has been made out.

The impugned orders passed by the Courts below do not suffer from any legal infirmity. It is not a fit case to exercise inherent jurisdiction by this Court under Section 482 of the Code. This petition is accordingly dismissed.