Prosecution For Perjury

Source: The Hitavada      Date: 04 Jun 2018 12:48:31











IN THE judgement of the case - Professor Chintamani Malviya vs High Court of Madhya Pradesh, delivered by Justice Arun Mishra and Justice Uday Umesh Lalit on April 27, 2018, at the Supreme Court, have, in a case of prosecuting a sitting MP for perjury, held that prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent. For this purpose, there must be prima facie case of deliberate falsehood on the matter of substance.

Through this appeal, the judgement and order passed by the Madhya Pradesh HC at Indore, on October 7, 2015 was challenged. Through the impugned Order, the HC had authorised its Principal Registrar, under section 195(1) (b) (i) of the CrPC to file complaint in the concerned court of Magistrate against the appellant.

The appellant was elected to Lok Sabha in the elections held in the year 2014 from Ujjain Constituency. His election was challenged by one Premchand Guddu. On July 31, 2014, notice was issued by the HC in response to the election petition and the same was to be served upon the appellant through the District Judge, Ujjain. The next date in the petition being September 1, 2014, the notice was said to have been served upon the appellant on August 16, 2014 by a process server, Arun Bhalerao.According to the appellant, the notice was served upon one of his employees, while he was in Delhi and that the appellant came to know about the pendency of the election
petition only on January 25, 2015. On the other hand, according to the election petitioner, the process server had served the notice on the appellant himself.

On the returnable date of hearing - September 1, 2014, neither the appellant was present before the HC nor was he represented by any counsel. Since the service report presented before the Court showed that he was duly served, the case proceeded ex parte.On January 29, 2015, the appellant moved an application under Order 9 Rule 7, CPC and submitted that the process server had served notice and documents on one of the employees, while the appellant was in Delhi and that he came to know about the election petition, only on January 25, 2015.

Soon thereafter, the original election petitioner filed an application under section 340 CrPC in the pending election petition alleging that the appellant had committed perjury by stating falsely that the notice in the election petition was given to his employee whereas the said notice was served upon the appellant by the process server.Through its order on March 24, 2015, the HC allowed appellant’s application for setting aside the order for proceeding ex parte against the appellant and allowed him to participate in the proceedings. Further, by another order of the same date, the HC allowed the election petitioner’s application and directed the Registry to register a criminal case. The Registrar was also given direction to conduct appropriate inquiry under section 340 CrPC.

In compliance of the said order, criminal case was registered on March 27, 2015 and appropriate show cause notice was issued to the appellant. In the subsequent proceedings, statement of the process server Bhalerao was recorded who stated that the requisite notice was served by him on the appellant.The HC passed the impugned order in the present appeal on October 10, 2015, the HC authorised the Principal Registrar of the HC to file appropriate complaint in the concerned court of the Magistrate. The HC felt that considering the status of the appellant in this case, the “lenient and sympathetic view” was not called for and ordered his prosecution for perjury.
Referring to a recent Supreme Court decision in the case - Amarsing Nathaji vs Hardik Harshadbhai Patel and Others - (2017)1 SCC 113, the court has quoted the legal position summed up therein as under:

“6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under sections 199 and 200 of the IPC; but it must be shown that the defendant has initially given false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interest of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in section 340 (1) CrPC, having regard to overall factual matrix as well as the probable consequences of such a prosecution. (See KTMS Mohd vs Union of India - (1992) 3 SCC 178). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case”.After giving its “anxious consideration” to the entire matter, the Supreme Court has observed that in its view, the guiding principle is the one as laid down by the decision of the case - Chajoo Ram vs Radhye Shyam and Another - (1971) 1 SCC 774.

The law is clear, “prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent and the court should be satisfied that there is reasonable foundation for the charge”. The assessment made by the High Court, as extracted in the preceding paragraph in the Court’s considered view does not satisfy the parameters and requirements as laid down by the Supreme Court.The Court has stated that it has been of the considered view that initiation of the proceedings in this case was not consistent with the parameters laid down by the apex court. The election petition against the appellant-MP, itself has been dismissed and considering the matter in entirety, it would not be expedient to initiate proceedings under section 340 CrPC read with section 195(1)(b)(i) of the CrPC. The court has allowed the criminal appeal by the said MP and closed the proceedings. The court has set aside the impugned judgement and Order passed by the Madhya Pradesh HC at Indore on October 7, 2015.