IMPORTANT POINT
Prosecution should be ordered u/s 340 CrPC r/w section 195(1)(b)(i) when it is considered expedient in the interest of justice to punish the delinquent, and there must be prima facie case of deliberate falsehood on the matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.

Headnote:Code of Criminal Procedure, 1973 – Section 340 and 195(1)(b)(i) – Perjury – Election petition – Service of notice – Allegation of perjury on returned candidate – Election petition dismissed – Held, it would not be expedient to initiate proceedings u/s 340 r/w Section 195(1)(b)(i). (Para 14)
       (1971) 1 SCC 774; (2017) 1 SCC 113 – Relied upon
       (1992) 3 SCC 178; AIR 1967 SC 68 – Referred
       Facts of the case:
       The appellant was elected to Lok Sabha in the elections held in the year 2014 from Ujjain Lok Sabha Constituency. His election was challenged by one Premchand Guddu. On 31.07.2014 notice was issued by the High Court and the same was to be served upon the appellant through the District Judge, Ujjain. The next date in the petition being 01.09.2014, the notice was said to have been served upon the appellant on 16.08.2014 by one Mr. Arun Bhalerao, Process Server.
       According to the appellant, the aforesaid notice was served on one of his employees while the appellant was in Delhi and that the appellant came to know about the pendency of the election petition only on 25.01.2015.
       Since the service report presented before the Court showed that the appellant was duly served on 16.08.2014 and nobody appeared for him, the case proceeded ex parte.
       On 29.01.2015 the appellant moved an application being I.A. No.927 of 2015 and submitted inter alia that the process server had served notice and documents on one of the employees while the appellant was in Delhi and that the appellant came to know about the election petition only on 25.01.2015. he prayed for setting order for proceeding ex parte against him.
       Soon thereafter the original election petitioner filed an application under Section 340 Cr.P.C. being I.A. No.1303 of 2015 in 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 said notice was actually served upon the appellant by the process server.
       The High Court allowed I.A. No.927 of 2015 and it allowed the appellant to participate in the proceedings.
       Further, by another order of the same date, the High Court allowed I.A. No.1303 of 2015 preferred by the original election petitioner and directed the Registry to register a criminal case.
       The High Court dismissed the election petition.
       By subsequent order the High Court authorized the Principal Registrar of the High Court under Section 195(1)(b)(i) of Cr.P.C. to file appropriate complaint in the concerned Court of Magistrate.
       Finding of the Court:
       It would not be expedient to initiate proceedings u/s 340 r/w Section 195(1)(b)(i).
       Result: Appeal allowed.

JUDGMENT

Uday Umesh Lalit, J.

Leave granted.

2. This appeal challenges the Judgment and Order dated 07.10.2015 passed by the High Court of Madhya Pradesh at Indore in M.CR.C No.2526 of 2015 whereby the High Court authorized the Principal Registrar of the High Court under Section 195(1)(b)(i) of Criminal Procedure Code (“Cr.P.C”, for short) to file complaint in the concerned court of Magistrate against the appellant herein.

3. The appellant was elected to Lok Sabha in the elections held in the year 2014 from Ujjain Lok Sabha Constituency. His election was challenged vide Election Petition No.33 of 2014 by one Premchand Guddu. On 31.07.2014 notice was issued by the High Court in said election petition and the same was to be served upon the appellant through the District Judge, Ujjain. The next date in the petition being 01.09.2014, the notice was said to have been served upon the appellant on 16.08.2014 by one Mr. Arun Bhalerao, Process Server.

4. According to the appellant, the aforesaid notice was served on one of his employees while the appellant was in Delhi and that the appellant came to know about the pendency of the election petition only on 25.01.2015. On the other hand according to the election petitioner, the process server had served the notice on the appellant himself.

5. On the returnable date of hearing, namely, on 01.09.2014, neither the appellant was present before the High Court nor was he represented by any counsel. Since the service report presented before the Court showed that the appellant was duly served on 16.08.2014, the case proceeded ex parte.

6. On 29.01.2015 the appellant moved an application under Order 9 Rule 7 Civil Procedure Code (“CPC”, for short) being I.A. No.927 of 2015 and submitted inter alia that the process server had served notice and documents on one of the employees while the appellant was in Delhi and that the appellant came to know about the election petition only on 25.01.2015. Soon thereafter the original election petitioner filed an application under Section 340 Cr.P.C. being I.A. No.1303 of 2015 in 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 said notice was actually served upon the appellant by the process server.

7. By its order dated 24.03.2015, the High Court allowed I.A. No.927 of 2015 preferred by the appellant for setting aside the order for proceedings ex-parte against the appellant and it allowed the appellant to participate in the proceedings. Further, by another order of the same date, the High Court allowed I.A. No.1303 of 2015 preferred by the original election petitioner and directed the Registry to register a criminal case. The Registrar was also given directions to conduct appropriate inquiry under Section 340 Cr.P.C. In compliance of said order, M.Cr.C. No.2526 of 2015 was registered on 27.03.2015 and appropriate show cause notice was issued to the appellant. In the subsequent proceedings, statement of Mr. Arun Bhalerao, Process Server was recorded who stated that the requisite notice was served on the appellant by him.

8. By its order dated 24.09.2015, the High Court accepted the plea taken by the appellant in his application preferred under Order 7 Rule 11 C.P.C. in pending election petition and the election petition was dismissed.

9. By subsequent order dated 07.10.2015 which is presently under appeal, the High Court authorized the Principal Registrar of the High Court under Section 195(1)(b)(i) of Cr.P.C. to file appropriate complaint in the concerned Court of Magistrate. It was observed:-

“(6) After recording the statements and taking into consideration the served notice bearing No.1762 dated 12.08.2014 and enclosed hukmnama, it is apparent that notice was served personally on the respondent while in the affidavit, he mentioned that notice was served on his staff.
…
(8) It is to be seen whether, it is in the interest of justice to punish the respond

Click Here to Read the rest of this document

2018 Supreme(SC) 423

SUPREME COURT OF INDIAARUN MISHRA, UDAY UMESH LALIT, JJ.Prof. Chintamani Malviya – Appellant(s)VersusHigh Court of Madhya Pradesh – Respondent(s)Criminal Appeal No. 649 of 2018 (Arising out of S.L.P. (Crl.) No. 545 of 2016) Decided on : 27-04-2018

Cases Referred (4)

SUPREME COURT OF INDIA
ARUN MISHRA, UDAY UMESH LALIT, JJ.
Prof. Chintamani Malviya – Appellant(s)
Versus
High Court of Madhya Pradesh – Respondent(s)
Criminal Appeal No. 649 of 2018 (Arising out of S.L.P. (Crl.) No. 545 of 2016)
Decided on : 27-04-2018