Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1167

IN THE HIGH COURT AT CALCUTTA
Krishna Rao, J.
Prochy N. Mehta & Anr. – Applicants
Versus
Noshir Tankariwala & Ors. – Respondents
IA No. GA 10 of 2023 CSOS 1 of 2017
Decided On : 22-06-2023

Advocates:
Advocate Appeared:
For the Applicant : Mr. Phiroze Edulji, Ms. Samira Grewal, Mr. Dhurba Ghosh, Mr. Anirban Kar
For the Defendant : Mr. R. K. Khanna, Mr. Aman Khemka

A court cannot initiate proceedings under Section 340 of the Code of Criminal Procedure against a person for making a false statement in an affidavit if the person did not obtain any relief from the court based on that statement.

Headnote:
PERJURY - SECTION 340 OF THE CODE OF CRIMINAL PROCEDURE - [SECTION 193/209 OF THE INDIAN PENAL CODE] - Court held that the plaintiffs' statement in an affidavit that they only learned of the defendant's death after receiving a copy of an application was false and misleading, but that no proceedings under Section 340 of the Code of Criminal Procedure could be initiated because the plaintiffs did not obtain any relief from the court based on that statement.
Fact of the Case:

The applicant, Parsi Zoroastrian Association, Calcutta, filed an application under Section 340 of the Code of Criminal Procedure against the plaintiffs for allegedly making false and misleading statements in an affidavit in opposition to an application filed by the applicant. The plaintiffs had stated in the affidavit that they only learned of the defendant's death after receiving a copy of the applicant's application, but the applicant claimed that the plaintiffs had attended online memorial services for the defendant prior to that date.
Finding of the Court:

The court found that the plaintiffs' statement in the affidavit was false and misleading, but that no proceedings under Section 340 of the Code of Criminal Procedure could be initiated because the plaintiffs did not obtain any relief from the court based on that statement.
Issues: 1. Whether the plaintiffs' statement in the affidavit was false and misleading. 2. Whether proceedings under Section 340 of the Code of Criminal Procedure could be initiated against the plaintiffs.
Ratio Decidendi: 1. The court held that the plaintiffs' statement in the affidavit was false and misleading because they had attended online memorial services for the defendant prior to the date they claimed to have learned of his death. 2. The court held that no proceedings under Section 340 of the Code of Criminal Procedure could be initiated against the plaintiffs because they did not obtain any relief from the court based on their false and misleading statement.
Final Decision: The court dismissed the applicant's application under Section 340 of the Code of Criminal Procedure.

JUDGMENT :

K rishna Rao, J.

1. The applicant, “Parsi Zoroastrian Association, Calcutta” has filed the present application for initiation of proceeding under Section 340 of the Code of Criminal Procedure against the plaintiffs for commission of offence under Section 193/209 of the Indian Panel Code.

2. Mr. Phiroze Edulji, learned Advocate representing the applicant submits that the applicant had initially filed an application being G.A. No. 8 of 2023 praying for dismissal of the suit as the plaintiff has not taken any steps for recording the death of defendant No.1 and substitution of the legal heirs of the defendant no.1.

3. Mr. Phiroze Edulji submits that after receipt of the copy of G.A. 8 of 2023, the plaintiffs have filed an application being G.A. No.9 of 2023 for recording the death of defendant no.1 and substitution of the legal heirs of the defendant No.1.

4. Mr. Edulji submits that the plaintiffs have also filed affidavit in opposition in connection with G.A. No. 8 of 2023 in which the plaintiffs have made false and misleading claim in paragraph 3 (xi) which reads as follows :

“The plaintiffs have made inquiries after receiving the said petition and ascertained that the defendant No.1 namely Noshir Tankariwala, one of the Trustee of Late Erward Dhunjeebhoy Bryamjee Mehta’s Zoroastrian Anjuman Atash Adaran died on 5th September, 2020.”

5. Mr. Edulji submits that after the demise of defendant No.1 on 5th September, 2020, the Parsi Zoroastrian community held an online memorial service for him on 14th September, 2020 where both the plaintiff No.1 and her husband spoke on the said occasion.

6. Mr. Edulji further submits that on 12th September, 2020 another online memorial service was held and the said event was streamed live on youtube wherein it is proved that the plaintiffs were present on the said memorial service through on online.

7. Mr. Edulji submits that the averments made by the plaintiffs that only after the receipt of the copy of G.A. 8 of 2023, the plaintiffs having enquired about the death of the defendant No.1 is total misleading and false statement.

8. Mr. Edulji submits that the plaintiffs have made false statement on affidavit before this Court and thus the plaintiffs have committed an offence under Section 193/209 of the Indian Penal Code.

9. Mr. Edulji had relied upon the following decisions in support of his case:

a. (2002) 1 SCC 253 (Pritish –vs– State Bank of Maharastra & Others).

b. (2005) 4 SCC 370 (Iqbal Singh Marwah & Another -vs- Meenakshi Marwah and Another).

c. (2010) 15 SCC 290 (Sharad Pawar -vs- Jagmohan Dalmiya & Others).

d. 2022 SCC Online SC 1240 (State of Punjab -vs- Jasbir Singh).

10. Per contra, Mr. Dhruba Ghosh, learned Senior Advocate representing the respondents submits that no order can be passed in the present application under Section 340 of the Code of Criminal Procedure for initiation of proceeding against the plaintiffs.

11. Mr. Ghosh submits that the plaintiffs have filed an application being G.A. 9 of 2023 for deleting the name of the defendant no.1 and bringing the name of two new elected trustees in place of the defendant No.1.

12. Mr. Ghosh submits that the application filed by the applicant for dismissal of the suit as abated being G.A. 8 of 2023 was dismissed by this Court and the application filed by the plaintiffs being G.A. 9 of 2023 was allowed by deleting the name of defendant No.1 and to bring on record the name of the two new elected trustees in place of defendant No.1.

13. Mr. Ghosh submits that this Court has allowed the application of the plaintiffs on the basis of the law provided under Order I Rule 10 (3) of the Code Civil Procedure and not on the basis of the averments made in the affidavit in opposition.

14. Mr. Ghosh submits that on the basis of the statement, the plaintiff has not obtained any relief from this Court and thus no proceeding under Section 340 of the Code of Criminal Procedure can be initiated.

15. Heard the learned counsel for the respective parties, perused the