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Aarish Asgar Qureshi vs Fareed Ahmed Qureshi on 26 February, 2019




(Arising out of SLP (Crl.) No. 2632/2018)





R.F. Nariman, J.

1) Leave granted.

2) The present case arises out of a judgment dated

07.03.2018 of the High Court of Judicature at Bombay, in which

the High Court felt that a prima facie case has been made out

for perjury under Section 340 of the Cr.P.C., and that it

would be expedient in the interest of justice to prosecute the

appellant before us.

3) The present case arises out of matrimonial proceedings

in which certain averments have been made in anticipatory bail

applications both before the Sessions Court as well as the

High Court. Insofar as the anticipatory bail application

before the Sessions Court is concerned, the applicants in the
Signature Not Verified
aforesaid application stated:

Digitally signed by R
Date: 2019.03.01
16:04:59 IST

“8. That the Applicant No.1 was deeply troubled
by these developments and thus approached his
mother in law, Naseem Qureshi to ask for her

intervention in this matter and in the hope that
a mother would be able to talk sense to her own
daughter and improve their relations. However,
despite the intervention of several family
members, there was no change in Sana’s behaviour.

During this period, it came to light that Sana
was having an affair with one Waseem Shaikh who
resided in Mahim. The in-laws of the Applicant
No.1 admitted that they were aware of this
relationship which had been going on prior to the
marriage of the Applicant No.1 with Sana but as
the said Waseem Shaikh belonged to another
community, they did not approve of the
relationship and had forced Sana to marry the
Applicant No.1.

11. That on the 29th of October, 2016, the
Applicant No.1 went to fetch Sana from her
maternal home and was completely aghast to find
Sana in a compromising position with Waseem
Shaikh. That the Applicant No.1 was further
shocked that such incidences were occurring right
under the nose of his in-laws who were doing
nothing to discourage their daughter from
maintaining these illicit relations. Thereafter,
the Applicants made it clear to the Complainant
and his family members that they would not
tolerate the continuance of such illicit
relations which went against the sacred
institution of marriage and demanded that Sana
stop all interactions with the said Waseem Shaikh
and that she should genuinely try to make her
marriage work. However, Sana refused to comply
and in November, 2016, Sana left her matrimonial
home taking with her various items.”

When the aforesaid statements were brought to the notice of

the Sessions Court, and it was argued before the Sessions

Court that these were knowingly false statements deliberately

made in order to get favourable orders from the Court, the

Sessions Court by a judgment dated 12.02.2018 held:

“The accused are charged for the offences
punishable under Sections 323, 376(b), 377, 406,
498A, 504 and 506 read with 34 of the Indian
Penal Code and under Sections 3 and 4 of the
Dowry Prohibition Act, 1961. F.I.R. was
registered on 19-11-2017. Still charge-sheet is
not filed before the Court therefore, proceeding
against the Accused Nos.1 to 7 is yet to be
conducted. Evidence of prosecution witnesses and
defence witnesses, if any, are yet to be
recorded. After recording of evidence, both
parties having an opportunity to cross-examine
the witness. Thereafter, it will be decided
whether the allegation made by the accused
persons are true or false. At this juncture,
contradictory statement of Accused Nos. 1 to 7
are before the Court. Now, the truthfulness of
the statement is not decided. Admittedly, if the
person made false statement before the Court on
oath, he is liable for punishment. However, for
that purpose, it is necessary to come to the
conclusion that the accused persons had made
false statement. Merely, on the basis of
contradictory statement made by the accused,
they cannot be punished, at this juncture, and
cannot initiate proceeding under Section 340 of
Cr.P.C., as the allegations are yet to be proved
in the case filed by the victim. Therefore, this
application filed by the applicant is


4) The same statements were made in an anticipatory bail

application before the High Court. The High Court found that

an investigating officer had filed a Report dated 24.11.2017

and recorded a finding that the allegations made in the

anticipatory bail application were false. It prima facie

appeared to the Court that the Respondent No.2 has made a

false statement in the aforesaid application and that

therefore, a case for filing a complaint under Section 340

read with Section 195(1)(b) of the Cr.P.C. is made out and it

is expedient in the interest of justice that an enquiry be

made by the judicial magistrate having jurisdiction. The High

Court also referred to para 3 of an order dated 30.11.2017 in

which the aforesaid allegations were repeated and, according

to the High Court, anticipatory bail was granted.

5) Mrs. Amrita Panda, learned counsel appearing on behalf of

the appellant, has stated that the so-called investigation

report is a preliminary report made by an investigating

officer two days after the filing of the F.I.R. in which no

findings whatsoever had been recorded about the falsity of the

statements made in the anticipatory bail application. She

also argued that the High Court order of 30.11.2017 merely

recorded the allegation that was found to be false as a

submission made by appellant’s counsel. However, the

anticipatory bail was granted for reasons that were entirely

different from the submission made. She also argued before us

that it was highly improper on the part of the respondents to

have suppressed the proceeding that ultimately culminated in

the Sessions Court order of 12.02.2018, and said that on this

ground also since the respondents approached the High Court

with unclean hands, the impugned order ought to be set aside.

She cited certain judgments to buttress her contentions.

6) Mr. Nilesh Ojha, learned counsel appearing on behalf of

the Respondent No.1, has countered these submissions. On

suppression, he has stated that, as a matter of fact, the

application for anticipatory bail made in the Sessions Court

was made after that made in the High Court, and effective

arguments were over in the High Court by the 8 th and 9th of

February. Obviously therefore, the order dated 12.02.2018

could not be brought to the notice of the High Court. He also

stated that the anticipatory bail application made before the

Sessions Court was a separate and independent application,

which the Sessions Court dealt with, and the anticipatory bail

application made before the High Court again being separate,

it was open to the High Court to arrive at its own conclusion

in an independent proceeding as to whether a prima facie case

under Section 340 has been made. He also relied upon certain

judgments to buttress his arguments.

7) The law under Section 340 on initiating proceedings has

been laid down in several of our judgments. Thus in Chajoo

Ram vs. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7,



“7. … 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 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.”

8) Similarly in Chandrapal Singh and Others vs. Maharaj

Singh and Another, (1982) 1 SCC 466, this Court, in para 14,


“14. That leaves for our consideration the
alleged offence under Section 199. Section 199
provides punishment for making a false
statement in a declaration which is by law
receivable in evidence. We will assume that the
affidavits filed in a proceeding for allotment
of premises before the Rent Control Officer are
receivable as evidence. It is complained that
certain averments in these affidavits are false
though no specific averment is singled out for
this purpose in the complaint. When it is
alleged that a false statement has been made in
a declaration which is receivable as evidence
in any Court of Justice or before any public
servant or other person, the statement alleged

to be false has to be set out and its alleged
falsity with reference to the truth found in
some document has to be referred to pointing
out that the two situations cannot co-exist,
both being attributable to the same person and,
therefore, one to his knowledge must be false.

Rival contentions set out in affidavits
accepted or rejected by courts with reference
to onus probandi do not furnish foundation for
a charge under Section 199, I.P.C. To
illustrate the point, appellant 1 Chandrapal
Singh alleged that he was in possession of one
room forming part of premises No. 385/2. The
learned Additional District Judge after
scrutinising all rival affidavits did not
accept this contention. It thereby does not
become false. The only inference is that the
statement made by Chandrapal Singh did not
inspire confidence looking to other relevant
evidence in the case. Acceptance or rejection
of evidence by itself is not a sufficient
yardstick to dub the one rejected as false.

Falsity can be alleged when truth stands out
glaringly and to the knowledge of the person
who is making the false statement. Day in and
day out, in courts averments made by one set of
witnesses are accepted and the counter
averments are rejected. If in all such cases
complaints under Section 199, I.P.C. are to be
filed not only there will open up floodgates of
litigation but it would unquestionably be an
abuse of the process of the Court. The learned
Counsel for the respondents told us that a
tendency to perjure is very much on the
increase and unless by firm action courts do

not put their foot down heavily upon such
persons the whole judicial process would come
to ridicule. We see some force in the
submission but it is equally true that
chagrined and frustrated litigants should not
be permitted to give vent to their frustration
by cheaply invoking jurisdiction of the
criminal court. Complainant herein is an
Advocate. He lost in both courts in the rent
control proceedings and has now rushed to the
criminal court. This itself speaks volumes. Add
to this the fact that another suit between the
parties was pending from 1975. The conclusion
is inescapable that invoking the jurisdiction
of the criminal court in this background is an
abuse of the process of law and the High Court
rather glossed over this important fact while
declining to exercise its power under Section
482, Cr. P.C.”

9) Both these judgments were referred to and relied upon

with approval in R.S. Sujatha vs. State of Karnataka and

Others, (2011) 5 SCC 689 (at paras 15 16). This Court,

after setting down the law laid down in these two judgments


“18. Thus, from the above, it is evident that
the inquiry/contempt proceedings should be
initiated by the court in exceptional
circumstances where the court is of the opinion
that perjury has been committed by a party
deliberately to have some beneficial order from
the court. There must be grounds of a nature
higher than mere surmise or suspicion for

initiating such proceedings. There must be
distinct evidence of the commission of an
offence by such a person as mere suspicion
cannot bring home the charge of perjury. More
so, the court has also to determine as on
facts, whether it is expedient in the interest
of justice to inquire into the offence which
appears to have been committed.”

10) It is clear therefore from a reading of these judgments

that there should be something deliberate – a statement should

be made deliberately and consciously which is found to be

false as a result of comparing it with unimpeachable evidence,

documentary or otherwise. In the facts of the present case,

it is clear that the statement made in the anticipatory bail

application cannot be tested against unimpeachable evidence as

evidence has not yet been led. Moreover, the report dated

12.11.2011 being a report, which is in the nature of a

preliminary investigation report by the investigating officer

filed only two days after the F.I.R. is lodged, can in no

circumstances be regarded as unimpeachable evidence contrary

to the statements that have been made in the anticipatory bail

application. Further, as has been correctly pointed out by

learned counsel appearing on behalf of the appellant, that

though the submission recorded by the High Court in para 3 of

the order dated 30.11.2017 is from the aforesaid paragraph in

the anticipatory bail application, yet, the High court made it

clear that it was granting anticipatory bail principally

because the F.I.R. annexed to the bail application does not

show that there was sexual intercourse of the applicant with

his wife during the course of their separation as a result of

which it was not possible to assess whether the averment

regarding the offence punishable under Section 377 of the

I.P.C. is or is not substantiated. The High Court also

recorded that considering that the husband and wife had

resided together after marriage only for a very brief period,

and that the husband was granted interim anticipatory bail,

decided to grant final anticipatory bail on these grounds. It

is clear, therefore, that both the grounds stated by the High

Court would not suffice to initiate prosecution under Section

340 read with Section 195 (1)(b) of the Cr.P.C.

11) Learned counsel appearing on behalf of the Respondent

No.1, however, cited a number of judgments. Thus in K.

Karunakaran vs. T.V. Eachara Warrier and Another, (1978) 1 SCC

18, this Court, after referring to Chapter XXVI of the Code of

Criminal Procedure, 1973 reiterated that a statement cannot be

said to be false unless it is done deliberately or

intentionally (see paras 23 30). Considering that this

Court was hearing an appeal against a High Court order

initiating prosecution it held that when two views are

possible in the matter it will not be expedient in the

interest of justice to interfere with the aforesaid order (see

para 26).

12) In Sarvepalli Radhakrishnan University and Another vs.

Union of India and Others, 2019 SCC OnLine SC 51, this Court

referred to the facts in that case in which the Court

constituted a high level committee headed by a senior officer

deputed by the Director, Central Bureau of Investigation with

two doctors of the All India Institute of Medical Sciences as

its members to go into the facts. The Committee gathered

facts in great detail, as is mentioned in paras 8 9 of the

aforesaid judgment, and ultimately came to certain conclusions

after a detailed enquiry. It is in this circumstance that

this Court found, after perusing the Committee’s Report, that

the College in question had manufactured records brazenly in

order to obtain favourable orders from the Court. It is on

the basis of the aforesaid findings of the Committee that it

was clear that a false statement had been made by the College

on the basis of completely fabricated documents. The facts of

this case are very far from the facts of the present case as

there are no fabricated documents in the present case nor has

there been a detailed enquiry by an independent high level

committee going into facts. This case is, therefore,

distinguishable from the facts of the present case.

13) The case next cited by learned counsel for the respondent

No.1 is State of Goa vs. Jose Maria Albert Vales alias Robert

Vales, (2018) 11 SCC 659 in which the learned counsel relied,

in particular, upon para 34. Para 34 of this judgment, in

turn, relied upon the celebrated judgment of M.S. Sherif vs.

State of Madras, AIR 1954 SC 397, and ultimately concluded

that as the High Court in that case had scrutinised the

evidence “minutely” and had disclosed ample materials on which

a judicial mind could reasonably reach the conclusion that

further investigation was necessary in a Section 340

proceeding, held that the Section 340 proceeding must,

therefore, go on. As has been stated in the facts of the

present case, the High Court has not scrutinised any evidence

as there was none to scrutinise. Further, all that the High

Court has seen is a preliminary investigation report, and that

too by a police officer, together with a High Court order

granting anticipatory bail, none of which can be said to be

unimpeachable evidence against which it can clearly be stated

that a prima facie case of perjury can be said to have been

made out. This judgment also does not further the

respondent’s case. The respondent then relied upon Perumal

vs. Janaki, (2014) 5 SCC 377 and para 20, in particular, to

state that the High Courts not only have the authority to

exercise such jurisdiction under Section 195 but also an

obligation to exercise such power in appropriate cases. This

proposition is unexceptionable. We have, however, found that

the present is not such an appropriate case.

14) Learned counsel then relied upon a Delhi High Court

judgment reported as H.S. Bedi vs. National Highway Authority

of India, 2015 SCC OnLine Del 9524 which states in some detail

the problems faced with present day courts and the number of

false affidavits that are filed before them. This again has

very little application, as we have seen above, to the facts

of the present case.


15) The arguments of learned counsel appearing on behalf of

the appellant that the High Court has not satisfied itself

that it is expedient in the interest of justice to proceed

with the matter does not appear to be correct. Such finding

is recorded. However, we have found otherwise that it ought

not to have so proceeded. Equally, we are not impressed by

the argument by the appellant’s counsel on suppression of the

Sessions Court order.

16) In the result, the appeal is allowed and the impugned

order of the High Court is set aside.

…………………….. J.


…………………….. J.

New Delhi;

February 26, 2019.

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