# CBAJOO RAM v. RADHEY SHYAM &: ANR

- **Citation:** [1971] Supp. 1 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1971-03-23
- **Bench:** S. M. Sikri, P. Jaganmohan Reddy, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cbajoo-ram-v-radhey-shyam-anr-5509
- **Pages:** 9

## Headnote

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Code of Criminal Procedure (Act 5 of 1898), ss. 476 and 479-Scope
of-Filing of false affidavit if appearing as witness.
Practice-Prosecution for perjury-When should be ordered.
Several complaints were made to the District Magistrate by the re8·
pondent about the appellant while he was functioning as a Sarpanch. As
no action was taken on those complaints the respondent filed a writ peti·
tion in the High Court praying for a mandamus directing inquiries to be
made. 'fhe writ petition was allowed and an inquiry was directed to be
held. The inquiry was held by the Sub-Divisional Magistrate and it was
held that there were only irregularities committed by the appellant, that
be did not abuse his position in any way, and that no action Ot:ed be
taken against him.
In those proceedings the appellant filed an affida vii
that he had not acted as Sarpanch during the relevant period but only
looked after the work of the Sarpanch.
The respondent presented an
application under s. 476, Cr. P. C., in the Court of the District Magistrate
praying for the appellant's prosecution under ss. 193, 181 and 182 1.P.C.,
for having deliberately filed a false affidavit. The matter was inquired into
by District Magistrate and after going through the entire material he held
that the case of swearing of a false affidavit was not made out against
the appellant.
An appeal· to the Sessions Court and a revision to the
High Court by the respondent were dismissed.
Tn the course of the writ proceedings in the High Court several affidavits were filed and the appellant asserted in those affidavits also that he
had not acted as a Sarpanch during the relevant period. The respondent
again moved the High Court by filing an application under s. 476, Cr. P. C.,
for the appellant's prosecution for making a false statement in his affidavit.
A single Judge of the High Court ordered that a complaint be made against
the appellant. The matter was taken on appeal to a Division Bench by
the appellant and it was contended that in view of s. 479-A Cr. P. C .. the
appellant could not be prosecuted under s. 476 Cr. P. C., bunhe contention was repelled and it was held that a per!l<>n filing an affidavit could
not be considered to have appeared as a witness before the Court as con ..
templated by s. 479-A.
In appeal to this Court,
HELD: In s. 479 A(6) it is expressly provided that no proceedings
shall be taken under ss. 476 to 479 for the prosecution of a person for
giving or fabricating false evidence if in respect of such a person proceedings could be taken under s. 479-A. But under s. 479-A it is only a witness who hal' appeared before the court that can be proceeded against.
In the present case, the appellant filed a sworn affidavit but it was ont
possible to hold that by doing so he appeared as a witness. Since he did
not appear as a witness before the High Court s. 479-A was inapplicable
and did not operate as a bar to the proceedings under s. 476 Cr. P. C.
[177A-E]
CHAIOO RAii v. RADllEY SHYAM (Dua, J.)
(2) But there is nothing to show that the explanation given by the
appellant that he did not act as Sarpanch at the relevant time, but only
did his work as a panch, was false. (1798]
A prosecution for perjury should be sanctioned by courts only in those
cases where perjury appears to be deliberate and Conscious and a conviction is reasonably probable, and 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 a 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. The giving of false evidence and the filling of false
affidavits is no doubt an evil which must be effectively curbed but to start
prosecuuon for prejury too readily and too frequently and without due
care and caution defeats its. very purpose. [l 79E-G]
In the presen

## Text

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CBAJOO RAM
v.
RADHEY SHYAM &: ANR.
March 23, 1971
B
[S. M. SIKRI, C. J., P. JAGANMOHAN REDDY AND I. D. DUA, JJ.J
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Code of Criminal Procedure (Act 5 of 1898), ss. 476 and 479-Scope
of-Filing of false affidavit if appearing as witness.
Practice-Prosecution for perjury-When should be ordered.
Several complaints were made to the District Magistrate by the re8·
pondent about the appellant while he was functioning as a Sarpanch. As
no action was taken on those complaints the respondent filed a writ peti·
tion in the High Court praying for a mandamus directing inquiries to be
made. 'fhe writ petition was allowed and an inquiry was directed to be
held. The inquiry was held by the Sub-Divisional Magistrate and it was
held that there were only irregularities committed by the appellant, that
be did not abuse his position in any way, and that no action Ot:ed be
taken against him.
In those proceedings the appellant filed an affida vii
that he had not acted as Sarpanch during the relevant period but only
looked after the work of the Sarpanch.
The respondent presented an
application under s. 476, Cr. P. C., in the Court of the District Magistrate
praying for the appellant's prosecution under ss. 193, 181 and 182 1.P.C.,
for having deliberately filed a false affidavit. The matter was inquired into
by District Magistrate and after going through the entire material he held
that the case of swearing of a false affidavit was not made out against
the appellant.
An appeal· to the Sessions Court and a revision to the
High Court by the respondent were dismissed.
Tn the course of the writ proceedings in the High Court several affidavits were filed and the appellant asserted in those affidavits also that he
had not acted as a Sarpanch during the relevant period. The respondent
again moved the High Court by filing an application under s. 476, Cr. P. C.,
for the appellant's prosecution for making a false statement in his affidavit.
A single Judge of the High Court ordered that a complaint be made against
the appellant. The matter was taken on appeal to a Division Bench by
the appellant and it was contended that in view of s. 479-A Cr. P. C .. the
appellant could not be prosecuted under s. 476 Cr. P. C., bunhe contention was repelled and it was held that a per!l<>n filing an affidavit could
not be considered to have appeared as a witness before the Court as con ..
templated by s. 479-A.
In appeal to this Court,
HELD: In s. 479 A(6) it is expressly provided that no proceedings
shall be taken under ss. 476 to 479 for the prosecution of a person for
giving or fabricating false evidence if in respect of such a person proceedings could be taken under s. 479-A. But under s. 479-A it is only a witness who hal' appeared before the court that can be proceeded against.
In the present case, the appellant filed a sworn affidavit but it was ont
possible to hold that by doing so he appeared as a witness. Since he did
not appear as a witness before the High Court s. 479-A was inapplicable
and did not operate as a bar to the proceedings under s. 476 Cr. P. C.
[177A-E]
CHAIOO RAii v. RADllEY SHYAM (Dua, J.)
(2) But there is nothing to show that the explanation given by the
appellant that he did not act as Sarpanch at the relevant time, but only
did his work as a panch, was false. (1798]
A prosecution for perjury should be sanctioned by courts only in those
cases where perjury appears to be deliberate and Conscious and a conviction is reasonably probable, and 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 a 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. The giving of false evidence and the filling of false
affidavits is no doubt an evil which must be effectively curbed but to start
prosecuuon for prejury too readily and too frequently and without due
care and caution defeats its. very purpose. [l 79E-G]
In the present case, the material on record was not sufficiently adequate
to justify the conclusion that it is expedient in the interests of justice to
file a complaint. The High Court did not give due weight to the following fa~ts: (a) The appellant was a Panch and was authorised to act as
such and bis explanation was not implausible. (b) In the order of the District Magistrate, which was confirmed by the Sessions Judge, it had bee11.
considered inexpedient to initiate prosecution on substantially the same
charge. (c) There was a long lapse of time of more than 10 years since
the filing of the affidavit, and during this time, the appellant must have
suffered both mentally and financially,
(d) In view of the nature of the
alleged prejury such a long delay also militates against the expediency of
prosecution. (1790-H; 180A-C]
CR!MINAL APPELLATE JURISDICI10N : Criminal Appeal No.
195 of 1968.
Appeal by special leave from the judgment and order dated
March 13, 1968 of the Allahabad High Court, Lucknow Bench
in Criminal No. 175 of 1964.
D. P. Uniyal and S. S. Shukla, for the appellant.
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R. N. Sharma, C. P. Lal and N. N. Sharma. for respondent
.,,
No. !.
0. P. Rana, for respondent No. 2.
The Judgment of the Court was delivered by
Dua, J".-This appeal by special leave is directed against the
judgment and order of a Division Bench of the Allahabad High
Court dated March 13, 1968 affirming the order of a learned
single Judge of that Court directing that a complaint be
filed
against the appellant for his prosecution for making a false statement in para IO of his affidavit dated July 6, 1960 to the effect
that he had not been acting as Sarpanch till December 7, 1957.
The relvant facts necessary for understanding the controversy
may now be briefly stated. Chajoo Ram. appellant, was elected
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Sarpanch of the Nyaya Panchayat of Risia Bazar, Tehsil Nanpora, District Bharaic at the election held for that office
on
October 29, 1956.
Radhey Shyam (respondent in this Court)
who was defeated in that election filed an election petition which
was dir.missed on June 3, 1958. During the trial of that petition
~n injunction was issued restraining the appeallant from functioning as a Sarpanch. That order remained in force from December
3, 1956 to December 10, 1957.
After the dismissal of the election petition, the appellant started. functioning as Sarpanch.
Several complaints also seem to have been made by Radhey
Shyam and some others to the District Magistrate, alleging ircegularities to have been committed by the appellant. As no action
was taken on those complaints Radhey Shyam, respondent, filed
a writ petition (W.P. No. 89 of 1960) in the Allahabad High
Court praying for a mandamus directing enquiries into the allegations contained in his complaint against the appellant.
This
writ petition was allowed on September 4, 1961 and a writ of
mandamus was issued directing the District Magistrate and the
Sub-Divisional Magistrate to hold an enquiry against the appellant
but the question of determining whether it was in public interest
to hold an enquiry was left to those authorities. In the course
of the writ proceedings several affidavits were filed in the
High
Court by the contesting parties. We art, however, or.ly concerned
\>lith para 10 of the affidavit dated July 6, 1960 filed by the
appellant. That paragraph reads :
"That the deponent was not acting as a Sarpanch till
7th December, 1957, when he was given over charge of
the office of Sarpanch by opposite party No. 4 Chhotey
Lal Sahayak Sarpanch. Except the cases mentioned
below none were entrusted to the benches by the deponent but were entrusted by the .sahayak Sarpanch opposite party No. 4 who was acting in place of the deponent
under the orders of the court after the petitioner had filed
election petition. The cases mentioned below were dealt
by the deponent nnder the old procedure in the absence
of any directions issued to him."
Then four cases are mentioned which had been filed
in
November, 1956.
In order to fully appreciate the contents of
this paragraph it is necessary to reproduce paras 9 and 10 of
Radhey Shyam's affidavit dated March 28, 1960 to which
the
appellant's affidavit dated July 6, 1960 was a reply: -
"9. That the Sarpanch (opposite party No. 3) referred
many cases to the Special Bench constituted by him. 21
cases out of the first list of 22 cases were allotted to this
Special Bench by him. Further ont of 62 criminal cases
and 35 civil cases institnted in the year
1956-57 the
CHAJOO RAM'· RADHEY SHYAM (Dua, J.)
'Bench consisting of the deponent as a
Panch (Bench
No. I) was allotted only 16 criminal and 8 civil cases
whereas, it should have been allotted 21 criminal and 12
civil cases.
10. That in many cases the deponent was not informed of the elates of the hearing fixed by Sarpanch
and many a time he could not, therefore, present himself
in the Bench and the cases were decided in his absence.
Sarpanch, who was not a member of this Bench, participated in the proceeding8 of this Bench."
In reply to para 9 of this affidavit the appellant had stated
in his affidavit of July 6, 1960 :-
"There is no dispute with regard to the procedure
laid down in this paragraph. It is a new amendment."
There was a rejoinder affidavit dated July 15. 1960 filed by
Radhey Shyam in which reply to para 10 of the appellant's
affidavit dated July 6, 1960 is contained in para 8 and it reads
as follows : -
"Regarding para 10-it is false and denied
that
Chajon Ram, did not act as Sarpanch till the 7th
December, 1957. As a matter of fact he was acting as
Sarpanch throughout in violation of the stay order passed
against him. It is also denied that other cases except
those mentioned by Chajon Ram in this para were not
referred to the Benches by him.
Chajoo
Ram
was
throughout acting as Sarpanch and he in that capacity
referred caRes to benches according to his choice. The
procedure followed by Sri Chajon Ram opposite party
no. 3 was in violation of the procedure laid down in the
Panchayat Raj Act and the Rules framed
thereunder.
The rest of the contents of this para are denied."
Tbe appellant filed a counter-affidavit dated July 24, 1960
to this rejoinder.
As we are only concerned with the contents
-0f para 10 in the appellant's affidavit dated July 6, 1960 we
need only refer to the relevant assertions in this counter-affidavit.
In para 1 the deponent stated that he had not been acting as a
Sarpanch on June 6, 1957 and with regard to annexure 34 it
was submitted that the entire document had been written by Shri
B. P. Joshi, Mantri whose duty it was to see that the provisions
of the Panchayat Raj Act and Rules and bye-laws made thereunder
and all orders issued or authorised by the Government or pres-
<:ribed authority were complied with by the Gaon Panchayat and
Nyaya Panchayat and to bring to their notice any irregularity
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or omission on their part. Shri Chhotey Lal, Sahayak Sarpanch:
had gone out on June 3, 1957 and had asked the deponent to do
ministerial work which he could do under the
Act.
Radhey
Shyam, respondent, filed a further rejoinder to this counteraffidavit on the same day viz. July 24, 1960 but in this rejoinder
nothing new was stated on this point
On December 10, 1962 Radhey Shyam, respondent, moved
in the High Court an application under s. 476, Cr. P. C. for
the appellant's prosecution.
The learned single Judge directed
by his order dated January 27, 1964 that a complaint be made·
against the appellant in respect of two counts, one of them,.
which survives for our consideration, being that he had made a
false statement in paragraph 10 of his affidavit dated July 6,
I 960 io the effect that he had not been acting as Sarpanch till
December 7, 1957. On Chajoo Ram's appeal before a Division
Bench it was urged on behalf of Radhey Shyam as a preliminary
point that the appeal was premature. This point was referred
to a Full Bench, which answered the reference negativing the
preliminary objection. When the appeal came back to the Division Bench it was argued on behalf of the appellant that in view
of the provisions of s. 479-A, Cr. P. C. no prosecution could be
taken under s. 476 of the Code. This contention was repelled and
it was held that a person filing an affidavit in court could not be
considered to have appeared as a witness before that court as
contemplated by s. 479-A Dealing with the merits the Division
Bench of the High Court observed that the respondent had placed
on the record four receipts (nos. 39 to 42) and "a copy of the
report supposed to have been submitted by the
appellant
as
Sarpanch to the Panchayat Raj Officer" indicating that the
appellant had acted as Sarpanch between June 4 and June 6,
1957.
The appellant's explanation, that Chhotey Lal, Sahayak
Sarpanch was on leave from June 4 to June 11. I 957 and that
the appellant had merely worked for Chhotey Lal in those days,
was not accepted for the reason that this explanation was neither
included in the affidavit filed by the appellant in reply to the
application under s. 476, Cr. P.C. nor in a supplementary affidavit
filed by him in connection with some other matter.
The fact
that Radhey Shyam, respondent, was prompted by considerations
of malice in initiating these proceedings was considered to be
immaterial. With respect to the second statement, which was
also the subject matter of the learned single Judge's direction,
the Division Bench held that charge to be unsustainable and
the order of the single Judge directing a complaint to be filed
with respect to that charge was set aside.
The appeal was
accordingly allowed in oart and in regard to para 10 of the
affidavit dated July 6, 1960 it was dismissed. It is this order
\\1tich is assailed before us.
CHAJOO RAM v. RAD!lEY SlfYAM (Dua,J.)
171
The first point which was pressed before us relates to the , A
effect of s. 479-A, Cr. P.C. This section was added to the Code
of Criminal Procedure by Act 26 of 1955 with the object of
eradicating the evils of perjury. It overrides the provisions of
ss. 476 to 479. Jn sub-s. (6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479 (inclusive) for the
prosecution of a person for giving or fabricating false evidence
if in re~pect of such a person proceedings may be taken under
this section. The question to be seen, however, is if s. 479-A
applies to the present case.
Sub-section (I) of this section, so
far as relevant, lays down that not withstanding anything con-
,tained in ss. 476 to 479 (inclusive) when a 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 judicial proceedings or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial
proceeding it may, after complying with the other conditions contained in this section, make a complaint in writing and forward
the same to a magistrate. The crucial point to be noticed
in
this section is that it is only a witness who has appeared before
the court who can be proceeded against.
Now, the appellant
quite clearly did not appear as a witness before the High Court.
He undoubtedly filed sworn affidavit but· it is not possible to
hold that by doing so he could be said to have appeared as a
witness. Section 479-A, Cr. P. C. is, therefore, inapplicable and
it cannot operate as a bar to thf\ proceedings under s. 476, Cr .P.C.
Before dealing with the merits of the case we consider it
proper to refer to the proceedings before the District Magistrate,
Bharaic pursuant to the order of the High Court dated September
4, 1961. An enquiry, it appears, was got made by the District
Magistrate through the Sub-Divisional Magistrate (Shri Nageshwar
Singh). According to the report of the Sub-Divisional Magistrate
dated January 4, 1963 Chajoo Ram, appellant, was only found
lo have committed some irregularities in disposing of the cases
but without any dishonest motive on his part.
Jn the opinion
of the Sub-Divisional Magistrate, no action was called for against
the appellant. It appears that the District Magistrate on February
17, 1963 desired a, further probe into the matter. Shri K. P.
Mathur, S.D.O. after going through the records of the Nyaya
Panchayat once again endorsed the report of his
predecessor
observing :
"I also agree .with Shri Nageshwar Singh that the
allegations had no mala fide intention, the irregularities
that had been found were due to inexperience or ignorance and are mostly commonly found in all Nyaya
Panchayats not only in this district but in other districts
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also. Shri Chajoo Ram does not appear to have abused
his position in any way."
It appears that in those proceedings also the appellant had
filed an affidavit on December 8, 1961, affinning that he had
not acted as Sarpanch for one year and that Chhotey Lal. Sahayak
Sarpanch looked after the work of the Sarpanch during
that
period. Radhey Shyam, respondent, presented an applicat10n
Under s. 476, Cr. P. C. in the court of the District Magistrate
also praying for the appellant's prosecution under ss. 193/181/182,
I.P.C. for having deliberately filed a false affidavit. The matter
was enquired into by the District Magistrate and after going
through the entire material placed before him he came to the
conclusion that the explanation given by Chajoo Ram was quite
plausible and it was "doubtful to deduce" from the material placed
before him "whether he had really acted as a Sarpanch of the
Nyaya Panchayat or only as a Panch''. The District Magistrate
specifically referred to the files of some cases on which Radhey
Shyam had relied in support of his allegation that the appellant
had acted as Sarpanch but the District Magistrate was unable to
uphold this allegation. Four receipts nos. 77 and 59 to 61 were
also relied upon by Radhey Shyam in support of his allegation
but here again the District Magistrate was unable to hold that
the appellant had acted as Sarpanch. As a result · of the preliminary enquiry the District Magistrate held that the case
of
swearing a false affidavit was not made out against the appellant
,and the notice issued to him was discharged on May 4, 1964.
Radhey Shyam took the matter on appeal to the court of the
Sessions Judge assailing the order of the District Magistrate dated
May 4, 1964, but without success. That court also came to the
conclusion that the appellant was not shown to have acted as
Sarpanch during the period in question. The final conclusion of
the Sessions Judge was expressed in these words.
"The Court has also to consider whether after filing
a complaint there is a possibilty of conviction. The
laches pointed out on behalf of the appellant committed
by Chajju Ram can be explained easily in law courts.
I agree with the learned counsel for the respondent that
the possibility of the conviction of the respondent appears
to be quite remote.
The learned court below after
carefully considering all the facts and circumstances of
the case came to the conclusion that it is not a fit case
in which a complaint should be filed, and I agree with
this view of the learned court.
All the circumstances
have been fully explained by Chajju Ram."
We are informed at the bar that a revision to the High
Court against the order of the Sessions Ji:.-ige was also dismissed
but that order is not included in the printed record.
CHAJOO RAM v. RADHEY SHYAM (Dua, J.)
179
Before us reliance has been placed on four receipts viz.
receipt no. 59 and 60 dated June 4, 1957 for 12 ps. as price of
application fonn, receipt no. 61 dated June 6, 1957 on account
of price of application fonn and receipt no. 77 dated June 4,
11957 for 53 ps. on account of summons fee which is said
to
have been received by the appellant. On these days, according
to the appellant, the Sahayak Sarpanch was on leave. There is
nothing to suggest that this explanation is false and we do not
think that on the basis of these three receipts the appellant can
be said to have acted as a Sarpanch. It is not shown that this
was the function only of the Sarpanch and a Panch could in no
circumstances sign a receipt. The next document on which
reliance is placed is a kind of a report to the Panchayat Raj
Officer dated June 6, 1957 informing him tha.t some Panchas
had not attended since the establishment of the Panchayat. In
this document the appellant's signatures and the signatures of
the Secretary, B.P. Joshi, both appear below the endorsement
forwarding this report to the Panchayat Inspector for infonnation and necessary action.
This was explained by the appellant
in his affidavit where he stated that the Secretary had inserted
the word "Sarpanch" and on the appellant's objection to the
use of this word, the Secretary had replied that this was a fonnal
matter. From this document also we do not think it is possible
to bold that the appellant intended to act as Sarpanch on June 6,
1957.
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 affidavit 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 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. In the present case we do not
think the material brought to our notice was sufficiently adequate
to justify the conclusion that it is expedient in the interests of
justice to file a complaint. The approach of the High · Court
seems somewhat mechanical and superficial: it does not reflect
the requisite judicial deliberation : it seems to have ignored the
fact that the appellant was a Panch and authorised to act as
such and his explanation was not implausible. The Hi2h Court
further appears to have failed to give requisite weight to the
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order of the District Magistrate which was confirmed by
the
Sessions Judge, in which it was considered inexpedient to initiate
prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order.
The subject matter of the charge before the District Magistrate
was substantially the same as in the present case. Lastly, there
is also the question of long lapse of time of more than ten years
since the filing of the affidavit which is the subject matter of the
charge. This factor is also not wholly irrelevant for considering
the question of expediency of initiating prosecution for the alleged
perjury. In view of the nature of the alleged perjury in this case
this long delay also militates against expediency of prosecution.
And then by reason of the pendency of these proceedings since
1962 and earlier similar proceedings before the District Magistrate
also the appellant must have suffered both mentally and financially.
In view of all these circumstances we are constrained to
allow the appeal and set aside the order directing complaint to
be filed.
V.P.S.
Appeal allowed.