ASHOK KUMAR AGGARWALversusUNION OF INDIA & ORS.

                   [2013) 12 S.C.R. 607

               ASHOK KUMAR AGGARWAL                              A
                              v.
                 UNION OF INDIA & ORS.
            (Criminal Appeal No. 1842 of 2013)
                   NOVEMBER 22, 2013
                                                                 B
      [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

       Code of Criminal Procedure, 1973- s.340 rlw s.195(1)(b)
- Perjury in judicial proceedings - Allegations of -
Application filed by appellant to proceed against respondent C
no.5 u/s.340 r/w s.195(1)(b) - Dismissed by the High Court-
Justification - Held: Justified - In order to initiate prosecution
for perjury, the court must prima facie reach a conclusion after
holding preliminary inquiry that there was a deliberate and
conscious effort to misguide the court and interfere in the D
administration of justice - More so, it has to be seen whether
such a prosecution is necessary in the interest of justice -
Prosecution for perjury is required only where perjury appears
 to be deliberate and conscious and the conviction is
 reasonable, probable or likely - On facts, a mere impression E
 or perception of the appellant would not make the deposition
 on affidavit by respondent no.5 to be false as being a
 deliberate and conscious act - There was no deliberate
 perjury to misguide the court while making such statement or
 filing the affidavit.                                             F
     The appellant filed Writ Petition before the High Court
seeking transfer of investigation from respondent nos. 3,
4 and 5 to any other senior officer of Central Bureau of
Investigation ('CBI'). as the said respondents had been
abusing their investigating powers and adopted unfair             G
and improper means. On submission of the counsel for
respondent No. 5 that the investigation report had been
finalised and no further investigation was required to be
done, the Court directed the competent authority of the
                             607                                  H
    608      SUPREME COURT REPORTS             [2013] 12 S.C.R.


A CBI to file an affidavit in this regard. An affidavit was filed
  by respondent No. 5 on 5-4-2002, wherein it was stated
  that the investigation was complete and that no further·
  investigation was required to be done and a final report
  was already submitted by him on 11-1-2002 to the
B Superintendent of Police.

      However, coming to know that certain witnesses had
  been examined by the CBI subsequent thereto, the
  appellant preferred an application to proceed against
  respondent no.5 under Section 340 read with Section
C 195(1)(b) of CrPC. The application was dismissed by the
  High Court, and therefore the instant appeal.

          Dismissing the appeal, the Court

o      HELD: 1. In order to initiate prosecution for perjury,
  the court must prima facie reach a conclusion after
  holding preliminary inquiry that there has been a
  deliberate and conscious effort to misguide the court and
  interfere in the administration of justice. More so, it has
E to be seen whether such a prosecution is necessary in
  the interest of justice. [Para 1O] [615-A-B]

       Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC
  421: 1994 (5) Suppl. SCR 465; Karunakaran v. T. V. Eachara
  Warrier & Anr. AIR 1979 SC 290; K. T.M.S. Mohd. & Anr. v.
F Union of India AIR 1992 SC 1831: 1992 (2) SCR 879; Chajoo
  Ram v. Radhey Shyam & Anr. AIR 1971 SC 1367: 1971 (0)
  Suppl. SCR 172; Iqbal Singh Marwah & Anr. v. Meenakshi
  Marwah & Anr. AIR 2005 SC 2119: 2005 (2) SCR 708 and
  R.S. Sujatha v. State of Kamataka & Ors. (2011) 5 SCC 689:
G 2010 (14) SCR 227 - relied on.

      2.1. In the instant case, the affidavit filed by
  respondent no. 5 revealed that the respondent no. 5 had
  submitted the final report (Part-I) in the aforesaid case on
H 11.1.2002to the SP. It is also not in dispute as can be seen
  ASHOK KUMAR AGGARWAL v. UNION OF INDIA              609


from the affidavit dated 5.4.2002, that the report submitted A
by the 10 goes to the superior officers for scrutiny and
comments. The High Court had passed a consent order
dated 19.4.2002 wherein certain directions had been
issued to the Director, CBI to exa~ine the case. The
 Director, CBI after examining the record of the case, vide B
order dated 23.4.2002, asked the 10 to tighten the loose
ends of the case. The said order has not been challenged
 till date. The High Court while dealing with the case has
 also, after examining the original records as well as the
 file and particularly the confidential notings therein, came c
 to the conclusion that in view of the directions issued by
 the superior authority, some other witnesses were
 examined "to tighten the loose ends of the case" and
 there was no attempt on the part of the investigating
 agency to mislead the court. After looking into the
                                                              0
 voluminous record of the case, what has been done after
 filing the affidavit or making the statement was minimal.
  The prosecution for perjury is required only where
  perjury appears to be deliberate and conscious and the
  conviction is reasonable, probable or likely. In the E
  circumstances, a mere impression or perception of the
  appellant would not make the deposition on affidavit by
  the respondent no. 5 to be false as being a deliberate and
  conscious act. [Paras 11, 12] [615-C-E, F-G; 616-A-C]

     2.2. The High Court rightly reached the conclusion F
that there was no deliberate perjury to misguide the court
while making such statement or filing the affidavit. In
such a fact-situation, the question of allowing application
under Section 340 Cr.P.C. read with Section 195 (1)(b)
Cr.P.C. was not warranted. [Para 14] [616-E-F]              G
                     Case Law Reference:
     1994 (5) Suppl. SCR 465 relied on            Para 6
     AIR 1979 SC 290             relied on        Para 7
                                                             H
    610        SUPREME COURT REPORTS               [2013] 12 S.C.R.

A         1992 (2) SCR 879             relied on         Para 7
          1971 (0) Suppl. SCR 172 relied on              Para 8
          2005 (2) SCR 708             relied on         Para 9

B         2010 (14) SCR 227            relied on         Para 9
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1842 of 2013.

      From the Judgment and Order dated 16.04.2010 of the
C High Court of Delhi at New Delhi in Criminal Misc. Application
  No. 3314 of 2006 in Writ Petition (Crl.) No. 938 of 2001.

       K.V. Vishwanathan, Indira Jaising, ASG, Ram Jethmalani,
  Ranjit Kumar, Lata Krishnamurti, Aman Vachher, Ashutosh
D Dubey, Harsh Sharma, Abhishek Chauhan. Pranav Diesh,
  Karan Kalia, P.R. Mala, P.N. Puri, Gautam Narayan, M.P. Jha,
  Dr. Ashok Dhamija, V. Mahana, Shailendra Saini, Sonia
  Dhamija, Abhishek Kaushik, B.V.B. Das, R. Balasubramanium,
  Rajiv Nanda, Madhurima Tatia, Anindita Pujari, Sadhana
E Sandhu, Sonakshi M. (for Anil Katiyar), B. Krishna Prasad,
  Balbir Singh Gupta for the appearing parties.

          The Judgment of the Court was delivered by

        DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
F against the impugned judgment and final order dated 16.4.2010
  passed by the High Court of Delhi at New Delhi in Criminal
  Miscellaneous Application No. 3314 of 2006 in Writ Petition
  (Crl.) No. 938 of 2001, by which the application filed by the
  appellant to proceed against respondent no. 5 under Section
G 340 read with Section 195(1)(b) of the Code of Criminal
  Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') has been
  dismissed.

          2. Facts and circumstances giving rise to this appeal are
H that:
  ASHOK KUMAR AGGARWAL v. UNION OF INDIA                     611
           [DR. B.S. CHAUHAN, J.]
     A. The appellant had filed Writ Petition (Criminal) No. 938 A
of 2001 before the High Court of Delhi seeking transfer of
investigation from respondent nos. 3, 4 and 5 to any other senior
officer of Central Bureau of Investigation (hereinafter to referred
as 'CBI'), as the said respondents had been abusing their
investigating powers and adopted unfair and improper means B
in RC No. S19/E0006/99 dated 7.12.1999.

     B. The court made order dated 4.4.2002, on the
submission of counsel for the respondent No. 5 that the
investigation report had been finaHsed in the said RC case and       c
no further investigation was required to be done, directed the
competent authority of the CBI to file an affidavit in this regard
by 5th April, 2002.

     C. An affidavit was filed by respondent No. 5 on 5.4.2002,
being investigating officer, wherein it had been stated that the D
investigation was complete and that no further investigation was
required to be done and a final report Part-1 (FR-1) was
submitted by him on 11.1.2002 to the Superintendent of Police
(in short 'SP').
                                                                 E
     D. However, coming to know that certain witnesses had
been examined by the CBI subsequent thereto, the appellant
preferred an application under Section 340 r/w 195(1 )(b)
Cr.P.C., which has been dismissed by the High Court vide
impugned judgment and order.                                     F

     Hence, this appeal.

     3. Shri Ram Jethmalani, learned senior counsel appearing
on behalf of the appellant, has submitted that not only a
statement was made, but even an affidavit had been filed by G
respondent no. 5 before the High Court that the investigation
was complete and an investigative report had been finalised
by him and no further investigation was required. Therefore, if
further witnesses had been examined and certain evidence had
been collected, it is evident that the statement so given and H
    612      SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A   affidavit filed by respondent no. 5 was just to mislead the court
    and therefore, the court ought to have proceeded against him
    allowing the application filed by the appellant.

        4. Per contra, Shri Ranjit Kumar, learned senior counsel
8 appearing on behalf of the respondent No.5 and Ms. Indira
  Jaising, learned ASG for respondent no. 1 and 2, have
  vehemently opposed this appeal contending that the submission
  made before the court and affidavit filed by respondent no.5
  that investigation stood concluded, was factually correct.
C However, as per the procedure prescribed under the CBI
  manual, the investigation report submitted by the 1.0. goes to
  the superior officers for their comments, approval and
  directions, and ultimately, it goes to the Director of the CBI. In
  case the superior authorities have some query in respect of any
  matter in that report of the investigating officer, they are
0
  competent to issue directions to examine a particular witness
  on a particular point. The investigating officer is bound to do
  so in order to tie the loose ends of investigation. Such
  examination of witness or further investigation does not amount
E to the statement made by the 1.0. in the affidavit before the court
  being false or having been made deliberately and mischievously
  to misguide the court. As per the requirement of the procedure
  prescribed under the CBI manual, the 1.0., even after filing such
  an affidavit, was bound to carry out such directions issued by
F the superior authorities.
         5. We have considered the rival submissions made by the
    learned counsel for the parties and perused the records.

       6. In Chandra Shashi v. Anil Kumar Verma, (1995) 1
G SCC 421, this Court held that no body should be permitted to
  indulge in immoral acts like perjury, prevarication and motivated
  falsehoods in the judicial proceedings and if someone does so,
  it must be dealt with appropriately. In case recourse to a false
  plea is taken with an oblique motive, it would definitely hinder,
H
   ASHOK KUMAR AGGARWAL v. UNION OF INDIA                   613
            [DR. B.S. CHAUHAN, J.]
hamper or impede the flow of justice and prevent the courts from   A
performing their legal duties.

       7. In this context, reference may be made of Section 340
under Chapter XXVI of the Cr.P.C., under the heading of
"Provisions as to Offences Affecting the Administration of B
Justice". This Chapter deals with offences committed in or in
relation to a proceeding in the court, or in respect of a document
produced or given in evidence in a proceeding in the court and
enables the court to make a complaint in respect of such
offences if that court is of the view that it is expedient in the C
interest of justice that an inquiry should be made into an offence.
Clause (b) of Section 195 (1) Cr.P.C. authorises such court to
examine prima facie as it thinks necessary and then make a
complaint thereof in writing after having recorded a finding to
that effect as contemplated under Section 340 (1) Cr.P.C. In
                                                                     0
 such a case, the question remains as to whether a prima facie
 case is made out which, if unrebutted, may have a reasonable
 likelihood to establish the specified offences and whether it is
 also expedient in the interest of justice to take any action. Thus,
 before lodging a complaint, the condition precedent for the court E
 to be satisfied are that material so produced before the court
 makes out a prima facie case for a complaint and that it is
 expedient in the interest of justice to have prosecution under
 Section 193 IPC. (Vide: Karunakaran v. T. V. Eachara Warrier
 & Anr., AIR 1979 SC 290; and K. T.M.S. Mohd. & Anr. v. Union F
 of India, AIR 1992 SC 1831).

    8. In the case of Chajoo Ram v. Radhey Shyam & Anr.,
AIR 1971 SC 1367, this Court held:

     7. The prosecution for perjury should be sanctioned by G
     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          H
    614        SUPREME COURT REPORTS                  [2013] 12 S.C.R.


A         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
B         merely because there is some inaccuracy in the
          statement which may be innocent or immaterial. There
          must be 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."
c                                                    (Emphasis added)

         9. In Iqbal Singh Marwah & Anr. v. Meenakshi Marwah &
    Anr., AIR 2005 SC 2119, this Court observed:

D           "In view of the language used in Section 340 CrPC the
           court is not bound to make a complaint regarding
           commission of an offence referred to in Section 195(1)(b),
           as the section is conditioned by the words •court is of
           opinion that it is expedient in the interests of justice". This
           shows that such a course will be adopted only if the
E
           interest of justice requires and not in every case. Before
           filing of the complaint, the court may hold a preliminary
           enquiry and record a finding to the effect that it is
           expedient in the interests of justice that enquiry should
           be made into any of the offences referred to in Section
F          195(1)(b). This expediency will normally be judged by the
           court by weighing not the magnitude of injury suffered by
           the person affected by such forgery or forged document,
           but having regard to the effect or impact, such
           commission of offence has upon administration of
G         justice ..... "

          (See also: R. S. Sujatha v. State of Karnataka & Ors.,
          (2011) 5 sec 689)

H         10. In view of the above, law on the issue can be
  ASHOK KUMAR AGGARWAL v. UNION OF INDIA                    615
           [DR. B.S. CHAUHAN, J.]
summarised that in order to initiate prosecution for perjury, the A
court must prima facie reach a conclusion after holding
preliminary inquiry that there has been a deliberate and
conscious effort to misguide the court and interfere in the
administration of justice. More so, it has to be seen whether
such a prosecution is necessary in the interest of justice.       B

     The case is required to be decided in light of the aforesaid
settled legal proposition.

     11. The affidavit filed by respondent no. 5 revealed that the
respondent no. 5 had submitted the final report (Part-I) in th~ C
aforesaid case on 11.1.2002 to the SP. It is also not in dispute
as can be seen from the affidavit dated 5.4.2002, that the report
submitted by the 10 goes to the superior officers for scrutiny
and comments. The High Court had passed a consent order
dated 19.4.2002 wherein certain directions had been issued D
to the Director, CBI to examine the case. The Director, CBI after
examining the record of the case, vide order dated 23.4.2002,
asked the 10 to tighten the loose ends of the case. The said
order has not been challenged till date. It is also evident that
 chargesheet was filed on 5.12.2002 and, subsequently, E
 cognizance was taken by the competent court on 10.1.2003.
The case was filed under Section 340 read with Section
 195(1)(b) Cr.P.C. by the appellant on 3.5.2006, i.e. after three
 and a half years.
                                                                    F
      12. The High Court while dealing with the case has also,
 after examining the original records as well as the file and
 particularly the confidential notings therein, came to the
 conclusion that in view of the directions issued by the superior
 authority, some other witnesses were examined "to tighten the G
 loose ends of the case" and there was no attempt on the part
 of the investigating agency to mislead the court. The order
 dated 23.4.2002 passed by the Director, CBI has not been
 challenged by the appellant and the instant complaint had been
 filed after 3-1/2 years in 2006. The statements were recorded H
    616       SUPREME COURT REPORTS                (2013] 12 S.C.R.


A on such directions, however, only to the extent of tightening the
   loose ends. More so, the provisions of Section 195(1 )(b) etc.
  are also attracted in such a fact-situation. After looking into the
  voluminous record of the case, what has been done after filing
  the affidavit or making the statement was minimal. The
B prosecution for perjury is required only where perjury appears
  to be deliberate and conscious and the conviction is
  reasonable, probable or likely. In the circumstances, a mere
  impression or perception of the appellant would not make the
  deposition on affidavit by the respondent no. 5 to be false as
C being a deliberate and conscious act.

          13. The court further observed that the complaint had been
    filed after 4 years on the basis of mere impression of the
    appellant and under no circumstances, it could be held that
0   there had been some deliberate and conscious attempt to
    mislead the court which may warrant entertaining the
    application filed by the appellant.

        14. We have given serious consideration to the material
  on record. However, we could not convince ourselves to take
E a view contrary to that of the High Court. The High Court has
  rightly reached the conclusion that there was no deliberate
  perjury to misguide the court while making such statement or
  filing the affidavit. In such a fact-situation, the question of
  allowing application under Section 340 Cr.P.C. read with
F Section 195 (1)(b) Cr.P.C. was not warranted.

         15. Thus, we do not find any cogent reason to interfere with
    the impugned judgment and order. The appeal lacks merit and,
    is accordingly dismissed.
G
    B.B.B.                                      Appeal dismissed.