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Crushing498a   16 January 2016

Judge not pursuing my perjury complaint (u/s 340)

i filed a perjury complaint u/s 340 in the DV case (after the interim got dismissed on the basis of concealment of factc etc) as my wife lied, concealed facts and stated contradictory facts. have been requesting the judge for the last several dates to pursue it further but she said that she will look into it later and will first decide the DV case, and that she will first make my wife give her statement in the DV case as she has to lead her evidence.. an appeal that my wife filed against the interim order also got dismissed.

what to do folks ? can i file an application requesting the judge to decide perury first ?



Learning

 21 Replies

Sidharth   16 January 2016

Always remember judges don't want to pursue in perjury case. 

File application to court to decide perjury first. And attach these two judgments

Allahabad HC- Court should dispose of the application U/s 340 CrPC first

Court should dispose of the application U/s 340 CrPC first
Court : High Court of Judicature at Allahabad

Brief : : if an application is moved in the pending case bringing to the notice of the court that any false evidence knowing well has been filed or fabricated in such proceedings, the court should dispose of the said application first before proceeding any further or before recording of further evidence.

 

 

 

Court No.29
High Court of Judicature at Allahabad, Lucknow Bench, Lucknow
Writ Petition No. (56) of 2002

 
Syed Nazim HusainVs.The Additional Principal
Judge Family Court & another

 

Hon’ble A. Mateen, J.

Heard learned counsel for the petitioner as well as learned A.G.A.

Since a very trivial point is involved I propose to dispose of the petition at this initial stage. Learned counsel for the petitioner has approached this Court with the prayer that the order dated 24.10.2002 be quashed.

From the order dated 24.10.2002 it comes out that the learned Additional Principal Judge, Family Court on the application, moved by the petitioner under Section 340, 344 Cr.P.C. instead of disposing of the same had postponed disposal of the said application and ordered that said application may be disposed of after evidence is recorded in case No. 566/89.

In my view, if an application is moved in the pending case bringing to the notice of the court that any false evidence knowing well has been filed or fabricated in such proceedings, the court should dispose of the said application first before proceeding any further or before recording of further evidence.

In the circumstances, I dispose of the present application and direct the Additional Principal Judge Family Court to dispose of the application so moved by the petitioner under Section 340, 344 Cr.P.C. before proceeding further in accordance with law.

With the above observations the petition is disposed of finally.

9.1.2003 sd- A.Mateen

 

CrPC 340 procedure cannot be bypassed by trial court

 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH                               CRA No. 197 SB of 2010 (O&M)

Date of decision: 25-1-2010

Sunny Bhumbla ………Appellant Vs

Shashi ………Respondent CORAM:- HON’BLE MR. JUSTICE HARBANS LAL

Present: Shri K.S.Boparai, Advocate, for the appellant. HARBANS LAL, J.

This appeal is directed against the order dated 5.12.2008 Annexure P-1 passed by the court of learned Civil Judge (Senior Division) Saheed Bhagat Singh Nagar vide which he allowed the petition moved under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights leaving the parties to bear their own costs and rejected the application moved under Section 195/340 Cr.P.C.

I have heard the learned counsel for the appellant, besides perusing the record with due care and circumspection. The learned counsel for the appellant has submitted with great eloquence that after the respondent admitted in her cross-examination about her employment, salary and inheritance
of the landed property, she again placed on record another affidavit dated 27.8.2008 solemnly affirming therein that she had inadvertently not mentioned about the source of income as well as employment in the earlier affidavit dated 14.8.2008. Thereafter the appellant moved an application under Section 195 of Cr.P.C.
 for initiating proceedings against the respondent for submitting a
false affidavit CRA No. 197 SB of 2010 (O&M) 2 before the learned trial Court, in order to get more maintenance from the appellant. The learned trial Court had assured the appellant that his said application shall be decided alongwith the main case. While deciding the main petition, in paragraph No. 13 of the judgment it has been observed that “in support of her claim for interim maintenance under Section 24 of the Hindu Marriage Act, the
respondent/applicant had made certain assertions, which were found to be totally false and the same had apparently been done by her in a deliberate manner. Consequently even an application for initiating suitable proceedings against her on account of her having submitted a false affidavit was also filed
by the petitioner on 3.9.2008. Thereafter, the respondent did not press her claim for interim maintenance, but the same did not absolve her of the liability of the aforesaid lapse. This court, however, does not wish to initiate any such proceedings against the respondent with the hope that sooner or later, the parties may be in a position to resolve their dispute or else this young couple may adopt such other means so that they can part their ways
in a peaceful manner and therefore, with a view to avoid undue complication of the matrimonial dispute, no action on account of submitting of the above false affidavit etc. is being initiated against the respondent.”

It is further argued that the learned trial Court has overlooked
the fact that the respondent has used the false affidavit in the judicial
proceedings. Therefore, all the ingredients of the offences of cheating,
forging and perjury etc. are made out and consequently, the order passed by the
learned trial Court in not initiating the proceedings under Section 195 read
with Section 340 Cr.P.C. is illegal.

I have given a deep and thoughtful
consideration to these submissions.

A careful perusal of the observations rendered by the learned trial
Court in paragraph No. 13 of the impugned judgment would reveal that there is
not even a shred of reference to the application moved under Section 195 read
with Section 340 Cr.P.C. This apart, no specific reasons have been apportioned
for not initiating the action on the basis of the alleged affidavit. The said
application having been moved under the provisions of the Code of Criminal Procedure was required to be disposed of separately. It was not desirable on the part of the learned trial Court to decide the said application in a slip shod manner by making mere passing reference to the alleged affidavit.
 In the application moved under Section 340 of the Cr.P.C. if the Court deems fit, the inquiry has to be held whereas in the present one, the impugned order is
absolutely silent as to whether or not inquiry was held. There is specific
procedure which is to be followed while disposing of an application moved under
Section 340 of the Criminal Procedure Code. Section 340 of the Criminal
Procedure Code reads as under:-


“340.Procedure in cases mentioned in Sec.195–(1) When, upon an
application made to it in this behalf or otherwise any Court is of the opinion
that it is expedient in the interest of justice that an inquiry should be made
into any offence referred to to in cl (b) of sub-section (1) of Section 195,
which appears to have been committed in or in relation to to a proceeding in
that Court, or as the case may be, in respect of of a document produced or
given in evidence in a proceeding in that Court, CRA No. 197 SB of 2010 (O&M) 4
such Court may, after such preliminary inquiry, if any, as it thinks necessary.

(a) record a finding to that effect.

(b) make a complaint thereof in writing

(c) send it to a Magistrate of the first class having jurisdiction.

(d) take sufficient security for the appearance of the accused before
such Magistrate, or if the alleged offence is non- bailable and the Court
thinks it necessary so to do, send the accused in custody to such Magistrate;
and (e) bind over any person to appear and give evidence before such
Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an
offence may, in any case where that Court has neither made a complaint under
sub-section (1) in respect of that offence nor rejected an application for the
making of such complaint, be exercised by the Court to which such former Court
is subordinate within the meaning of sub-section (4) of Sec.195.

(3) A complaint made under this section shall be signed (a)
where the Court making complaint is a High Court, by such officer of the Court
as the Court may appoint.

(b) in any other case, by the presiding officer of the Court,
and            (4) In this section, “Court” has the same meaning as in CRA No.
197 SB of 2010 (O&M) 5 Sec.195.”

A glance through the impugned order would reveal that the learned
trial Court has given a go by to the provisions of Section 340 Cr.P.C. The
approach adopted by the learned trial Court is unwholesome and is depreciable.

The impugned order is absolutely silent as to whether the application has been dismissed or allowed, if so for which reasons. In consequence of the preceding discussion the trial Court is directed to decide the application under discussion in accordance with law. This appeal stands disposed of accordingly.

(HARBANS LAL)

JUDGE

January 25, 2010

 

 

 

 

 

1 Like

Sidharth   16 January 2016

@Renuka

Firstly judge have not done anything illegal till yet.

Secondly District judges are for civil cases , session court is the appellate authority for criminal cases and DV is criminal case

Thirdly Supreme court knows about all this read this famous judgement.

 

Supreme Court:- Why Trail Judge not make complaints u/s 340 CrPC for Perjury?

SUPREME COURT OF INDIA

PETITIONER:                  SWARAN SINGH

Vs.

RESPONDENT:    STATE OF PUNJAB

DATE OF JUDGMENT:            26/04/2000

BENCH:            Ruma Pal, D.P. Wadhwa

HEAD NOTE:-

Dismissing the appeals, the Court Held : Per Ruma Pal, J

1.1. The eye-witnesses’ accounts of the accused persons’ involvement in the crime are not only consistent but were duly corroborated by mate-rial evidence. The enmity between the accused and deceased was estab-lished. Thus, Courts below were justified in convicting and sentencing the accused- appellants. [581-G; 582-B]

1.2. Accused `SS’ has admitted his presence at the scene of occur-rence with loaded double barrel gun and a cartridge belt. His defence that he had not fired by any shots and the deceased in a drunken State were the aggressors cannot be accepted in view of the medical evidence. According to the Chemical Examiner’s report, the alcohol concentration found in the viscera of deceased neither showed that it had been consumed immediately prior to the occurrence nor was it sufficient to make the deceased inebri- ated. [582-C]

2. The site plan, photographs showing position of deceased persons and the blood stained earth collected from the spot supports the prosecution case that the deceased were killed at the spot next to the truck and not near accused SS’s house as claimed by him. If indeed the deceased were shooting indiscriminately as alleged by the accused there would have been some pellets on the walls of SS’s house. It was not even suggested to any of the witnesses in the prosecution that there were pellets or pellet marks near SS’s house. Thus, both the Trial Court and High Court rightly rejected the story of accused to explain the presence of the truck at the scene of occurrence. Further, the fact that the hitting was at close range supports the evidence of the eye-witnesses and runs contrary to the defence account of the incident. [581-G-H; 582-A]

Forensic Science in Criminal Investigation & Trials (3rd Edn.) P. 280; Fisher, Svensson and Wendel’s Techniques of Crime Scene Investigation (4th Edn. P. 296), referred to.

3.  Merely because one portion of the evidence of eye-witnesses is disbelieved does not mean that the Courts were bound to reject all of it. Thus, non-acceptance of evidence of PW-3 and PW-4 by Courts below regarding the involvement of `M’ will not render their evidence regarding involvement of appellants unbelievable. [583-D]

4.  PW-1, Doctor has stated in his cross-examination that both the deceased could have met their death at about 4 P.M. on the fateful day, but this does not by itself establish the fact that the deceased were killed at 4 P.M. The evidence of PW 1, in chief was that the death could have been caused within 24 hours prior to the post-mortems. Therefore, PW-1’s evidence is equally consistent with the case of the prosecution that the incident took place at 7.45 P.M. [583-H]

5. Minor discrepancies in the testimony of PW-5, Investigating Officer, are not sufficient to discard the case of the prosecution or to throw doubt on the eye-witnesses’ testimony. Furthermore, the Trial commenced about three years after the incident and it is not unlikely that the Investi- gating Officer could not remember the details of the investigation. [584-G]

Per Wadhwa, J. (Supplementing):

1. A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. Then appropriate diet money for a witness is a far cry. Proper diet money must be paid immediately to the witness and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. All the subordinate courts, should be linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. [585-G-H; 586-A-D]

2. Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure. [586-F-G] 

 

1 Like

Crushing498a   16 January 2016

thanks so much everyone, specially Sid. buddy, do you have a format of this application ? also do u know of any case where this application was filed and it yielded results ?

Sidharth   16 January 2016

Yes, I used it in my case.

Judge refused to accept my application of 340crpc by saying " It is premature stage for this application" I argued and won and got my application accepted. And my wife's application of interim maintenance rejected

1 Like

Crushing498a   16 January 2016

great....can you please send the application to me via PM or whatsapp ? i messaged you my number Sidharth. i need it desperately as the next DV date is in 10 days and i have to file it :) i hope u can have a quick word with me over the phone..

Crushing498a   16 January 2016

in my case, a different case number has been allotted to my 340 section complaint and in the cause list it is mentioned as a seperate case, but the judge is not pursuing it. on every date, she passes a specific order for DV but for 340, merely states "to be put up with connected case"..

Sidharth   16 January 2016

@crushing498a

The magistrate is legally right by issuing a separate case no for your application u/s 340. means magistrate is taking perjury application as missllanious application. 

But the point is Magistrate who accept the application of perjury cannot decide the application because that court should itself become the complainant and no complainant can decide its own complaint.

Pls read this section again. 

 

Section 195,
which appears to  have been committed in or in relation to a proceeding in that
Court, or as the case may be, in respect of a document produced  or given in
evidence in a proceeding in that Court, such Court  may, after such preliminary
inquiry, if any, as it thinks  necessary,–

(a) record a finding to that effect;

(b) make a complaint thereof in writing;


 

(c) send it to a Magistrate of the first class jurisdiction;  (d)
take sufficient security for the appearance of the accused  before such
Magistrate or if the alleged offence is non-bailable  and the Court thinks it
necessary so to do, send the accused in  custody to such Magistrate, and

(e) bind over any person to appear and give evidence before  such
Magistrate.

 

So ask the court to forward the complaint to CJM

IF you think magistrate is delaying it.

Appeal to session court. 

 

Hope it helps. 

Crushing498a   16 January 2016

ok thanks so much Sid, buddy what is the process of perjury ? i remember the previous judge had asked the opposite party to file a reply to the 340 complaint.. does the judge need to forward it after the reply is filed by the opposite party ? 

Sidharth   16 January 2016

@crushing 498a

Yes, if judge doesn't get satisfactory reply. Or opposite party failed to convince magistrate that they haven't lied.

It is mandatory for the magistrate to become complainant and send the complaint to CJM

Dr Katta Venkata Rama Krishna (Retd Sr Director Govt of India/ Advocate)     17 January 2016

 

Supreme Court firm on false affidavit: dated 13-01-2016

 

 

1) SC in its landmark decision says that High Court was not wrong while imposing cost of Rs 10 lacks on petitioner for submitting false and misleading affidavit in Court. SC quotes that:

 

 

“Global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as compared to the number of such cases prior to that. This ' is illustrative of the malaise that is slowly but surely creeping in.”

 

 

2) Though the petitioner tried to justify false or misleading affidavit filed in Court but after giving justification, it also tendered an unconditional and unqualified apology and its indicate that there was an admission that statement made before Court was false or misleading.

 

 

3) Court says that “Giving false evidence by filing false affidavit is an evil which must be effectively curbed with a strong hand. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent”  and with these comments SC upheld order of High Court and says that cost of Rs. 10 Lacks convincing.  

 

498 A fighter (Advocate)     17 January 2016

There are many remarkable judgements of perjury but in remote areas or say in district or tahsil level court judges wont appretiate also here advocates says no need to go for it as we of course husband is winning the case if they file perjury in that case the main case gets delayed even affect the judgment as in my case wife lied in sec 24 as she had filed herself sec 13 in march 14 any how she manged to drag me in court in july 2015 soon in aug 15 she applied sec24 falsely but her sec 24 gets rejected as i said i am ready to take her back and she herself withdrawn her from my house, she said she is working and earning only 1500 rs per month even she not get salaried for many months this is absolute lie! she have to take care of her 60 yrs old mother and with her two younger sister one is 31 yrs and other is 20 yrs with my daughter of 4 yrs.

she is MA english and B.Ed and even completed english spoken course she worked in central school in 2004 and in college in 2009 now in school it is common sense that post graduate how can earn 1500Rs any way judge rejects her sec 24,

now question is my advocates says first win this sec13 as she lied about cruelty and you abandoned her as it will help you in your 498A which is running since 2009. her first divorce get withdrwawn by her filing date is sep 2009 and withdrawn in march 11. also i won sec 09 that was filed by me  filed in july 09 and won in feb 2010.

this will also help ful in custody so get clean aginst her allegaqtions first dont mess any thing else now as the case will get closed in next 2nd feb becuse she had give chances for her evidence and she is not appearing on 2nd feb the third chance and last chance to her...to produce evidences of cruelty and to prove that i left her......

so now expert suggest will i file perjury now or after getting sec13 over ? surley her sec 13 going to dismissed also suggest what counter cases i can filed for being my harrasment due to her sec 13 , in that i almost appeared on every date and she missed many dates

on her first chance she sent medical of genral govt hospital that was also falsely made as i got paper of it through RTI....

suggestion highly appretiated as this is mind game, i am on true side need motivation also please no philoshpical advise only legal points......truley based on our Indain law....

thanks

1 Like

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     17 January 2016

For perjury application new case no has to be given as per BOMBAY HC CITATION.

 

It also helps the petitioner since the case will move otherwise if the application remains in main case it will be forgotten due other actions.

 

Irrespective above citations it is true that courts are reluctant and amendment in law is needed.

 

However those persusing PERJURY can certainly put the other side on run.

1 Like

Sidharth   17 January 2016

Please start new thread for new queries. 

Its becoming too confusing " who replying whom"

Crushing498a   17 January 2016

Originally posted by : TGK REDDI
Your questions are full of discrepancies.

You said you'd filed a Crl.M.P.    Now you're asking, "Can I file perjury?"     You're nobody to file a Complaint of perjury.     You can only urge the Court to file a Complaint.

A Complaint by Court can run concurrently.    Earlier cases needn't be decided.

hi mr reddi, i think you did not get me. i am not asking if i can file perury or not, as i have already filed it. what i am asking is since the judge is not pursuing it, what can be done about it ? can i file an application requesting the judge to pursue it ?

below is the complete story so that you will  understand my position better:

afer the interim got dismissed in DV on the basis of concealment of facts, my wife filed an appeal against the order. in the mean time, in the main DV case, i filed perury and gave a copy of the complaint to the opposite party. in the next date i requested the judge to ask them to file a reply, to which the judge directed the other party for the same. after 2 dates, the judge got changed and in the mean time, the appeal also got dismissed. i requested the new judge on 2 occassions to pursue my complaint u/s 340 further, but once she said she will look into it after the main DV case, and on the other day she said she will get the girl's statement done first as the case is now listed for Prosecution Evidence. also, i did notice a different case number allotted to my 340 complaint and listed as a seperate case in the cause list..

so what should i do so that the judge pursues my 340 complaint, is my question :) my lawyer says it is the "judge's descretion" to pursue perjury or not and that we should not file any application requesting the judge to pursue perury.

thanks so much everyone.

 

 

 


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