Monday, May 27, 2013

Super PERJURY CASE ! wife hides 2nd marriage claiming maint, first hubby sues for perjury, lower courts reject petition, HC allows perjury case!

Notes
  • Super perjury case against wife for wife's lies under oath
  • Husband wins the case appearing PARTY in PERSON at the High court !!
  • Wife lies under oath hiding fact of her second marriage
  • Husband proves second marriage in a later hearing and sues for perjury
  • As usual the lower court does NOT accept hubby's application
  • Hubby moves HC, wins case PARTY in person
  • Honourable HC says, wife to be prosecuted for perjury !!




IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:   21.03.2013

CORAM:

THE HONOURABLE MR.JUSTICE S.PALANIVELU

Criminal Revision Case No.1262 of 2012



P. Murugesan                        .. Petitioner

Vs.

B. Gokila                            .. Respondents
   

PRAYER: Criminal Revision case filed under Section 397 & 401 of the Code of Criminal Procedure, to call for the records  in M.C.No.22 of 2007 on the file of the learned Judicial Magistrate,  Mettupalayam, Coimbatore and set aside the order passed in Crl.M.P.No.4334 of 2012 on 24.08.2012. 



        For Petitioner  : Mr.R. Murugesan
                  Party in person

        For Respondent  : Ms. Kavitha
                  for
                  M/s PVS Giridhar Associates
                      
                   

ORDER

The following are the allegations contained in the Protest Petition filed by the petitioner:

The Court below has directed the Inspector of Police, Sirumugai Police Station, to investigate the private complaint filed by the petitioner.  But the police did not file any report even though the petitioner sent two letters dated 19.6.2012 and 26.07.2012 which were received on 26.6.2012 and 28.7.2012 alongwith the above said private complaint copy and marriage registration certificate of respondent.  The respondent has re-married on 25.02.2010 but on 11.11.2011 during the cross examination she told that she has not remarried.  Hence, the Court may be pleased to direct the police to re-open and re-investigagte the matter or direct the CBCID to investigate the complaint and file report.

2.  Judicial Magistrate, recorded sworn statement of the petitioner and dismissed the petition stating that on going through the records and sworn statement, the only offence made out is under Section 193 IPC., that according to Section 195 Cr.P.C. this petitioner has no locus standi to file this complaint under Section 193 I.P.C. and hence the petition is not maintainable.

3. The petitioner/party-in-person would contend that inasmuch as the Court below has found that the respondent has committed offence u/s 193 I.P.C., even though it is of the view that the petitioner has no locus standi to lodge the complaint, there is no legal impediment for the Court below to prefer complaint against the respondent when adequate materials were available before the Court and without lodging complaint before the concerned Court, dismissing the petition is not sustainable.

4. Contending contra, the learned counsel appearing for the respondent Ms.Kavitha would submit that as per the finding rendered by the Court below, the petitioner has no locus standi to point out anything on the part of the respondent so as to make her accused, that by means of which he could not make any complaint and in this regard there is no legal infirmity found in the order passed by the Court below.

5. The petitioner says that the respondent wife was divorced and she re-married on 25.2.2010 in Arulmigu Subramaniaswamy Thirukkoil, Pachaimalai-Modachur, Erode District for which he has produced copy of the Marriage Certificate issued by the Executive Officer of the said Temple.  He also adds that she is having a  male child aged 1= years.  Suppressing the fact, she is continuing the maintenance case.  While she was examined in cross on 11.11.2011 in MC Case No.22/07 before the learned Judicial Magistrate, Mettupalayam, she has stated that she has not contacted second marriage.  But when she was examined in the same court on 31.08.2012, she admitted that after divorce she contacted second marriage and her husband's name is Arjunan, that after the said marriage she is having a male child  aged 1 year 3 months.  If it is so, while she deposed earlier on 11.11.2011 her child should have been aged 5 months.  It is consciously admitted by her that the child was born out of the second marriage.  Hence, it is manifest that she has given a false statement on 11.11.2011 as to her marriage that she has not married for the second time. 

6. Significantly it is to note that she has made false statements while she was examined before the same Court in M.C.No.22 of 2007, i.e., Judicial Magistrate, Mettupalayam. Taking advantage of this situation, the petitioner has come forward with this claim.

7. The petitioner relies upon an unreported order of mine in M.P.SR.No.39639 of 2011 in Crl.O.P.No.18268 of 2011  dated 3.4.2012 wherein I have followed the decision of the Supreme Court reported in 2003 (1) Crimes 235(SC)=AIR 2003 SUPREME COURT 541= (2003) SCC 76 [N.Natarajan v. B.K.Subba Rao]  wherein Their Lordships have observed as follows -

| 9....... In ordinary crimes not adverted to under
| Section 195 CrPC, if in respect of any offence, law
| can be set into motion by any citizen of this country,
| we fail to see how any citizen of this country cannot
| approach even under Section 340 CrPC. For that matter,
| the wordings of Section 340 CrPC are significant. The
| Court will have to act in the interest of justice on a
| complaint or otherwise. Assuming that the complaint
| may have to be made at the instance of a party having
| an interest in the matter, still the court can take
| action in the matter otherwise than on a complaint,
| that is, when it has received information as to a
| crime having been committed covered by the said
| provision. Therefore, it is wholly unnecessary to
| examine this aspect of the matter. We proceed on the
| basis that the respondent has locus standi to present
| the complaint before the Designated Judge."

8. In the said case, I have followed the principles laid down by the Honourable Supreme Court and observed that in view of the above ratio, it is the contention of the learned counsel for the petitioner that the petitioner has got locus standi to file the application.

9. In the above stated case, I have also followed a decision of this Court in 1908 MLJ VOL XIX [Aiyakannu Pillai v. Emperor]  wherein it is held that a complaint can be presented at any time subject to the law of limitation, an order under Section 476 (I) can be made at any time (the old provision for Section 340 Cr.P.C. is Section 476).  In the said case I reached a conclusion that  the petitioner in that case has locus standi  to file the application.

10. The petitioner also placed reliance upon N.Natarajan's case (supra)  wherein Their Lordships have held as follows:

| "It is well settled that in criminal law a complaint
| can be lodged by anyone who has become aware of a
| crime having been committed and thereby set the law
| into motion. In respect of offences adverted to in
| Section 195 CrPC there is a restriction that the same
| cannot be entertained unless a complaint is made by a
| court because the offence is stated to have been
| committed in relation to the proceedings in that
| court. Section 340 CrPC is invoked to get over the bar
| imposed under Section 195 CrPC. In ordinary crimes not
| adverted to under Section 195 CrPC, if in respect of
| any offence, law can be set into motion by any citizen
| of this country, we fail to see how any citizen of
| this country cannot approach even under Section 340
| CrPC. For that matter, the wording of Section 340 CrPC
| is significant. The court will have to act in the
| interest of justice on a complaint or otherwise.
| Assuming that the complaint may have to be made at the
| instance of a party having an interest in the matter,
| still the court can take action in the matter
| otherwise than on a complaint, that is, when it has
| received information as to a crime having been
| committed, covered by the said provision."
 
11. He also cited another latest Supreme Court judgment on this point reported in 2012 (1) CTC 184 [Abdul Rehman & Others v. K.M.Anees-ul-Haq]wherein Their Lordships have thoroughly analysed all the relevant judgments and directed to transfer the criminal case filed by the husband to the Court of competent jurisdiction.

12. The learned counsel for the respondent cited a decision of Supreme Court reported in AIR 1978 SC 1753 [Dr. S.P.Kohli v. The High Court Punjab and Haryana] wherein Their Lordships have held as under:

| "Further, it is well settled that prosecution for
| perjury should be sanctioned by Courts only in those
| cases where it appears to be deliberate and conscious
| and the conviction is reasonably probable or likely.
| It is also well recognized that there must be a prima
| facie of deliberate falsehood on a matter of substance
| and the Court should be satisfied that there is
| reasonable foundation for the charge."

13. In AIR 1971 SC 1367 [Chajoo Ram v. Radhey Shyam and another] it is held thus:

|  "7. 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 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. "

14. The learned counsel for the respondent cited a portion of the decision in N.Natarajan's case (supra) which is as follows:

| "Private complaint indulging in vexatious litigation
| based on hald-baked knowledge of law wasting time of
| court should be restrained in the interest of
| administration of justice from filing similar
| applications.  If still he persists, such
| application/complaint should be dismissed at limine
| and appropriate proceedings be initiated against him."

15. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur] it is held thus:

| "4.  As is plain from the aforesaid stances adopted by
| the parties, they are out for personal vendetta. It is
| a settled principle of law that courts never become
| tools at the hands of the parties to satisfy private
| vendetta or to take up cudgels on behalf of one party
| and punish the other. The primary object to take
| proceedings under Section 340 of the Code of Criminal
| Procedure, in instituting a complaint for giving false
| evidence, is to curb the evil of perjury and to keep
| the flow of proceedings in courts unsullied and pure.
| It is only in a rare case, when the Court comes to the
| conclusion that if the complaint is filed conviction
| is more or less a certainty, that it chooses to become
| a complainant. In such like contentious issues, when
| the wife can again indulge in proving that the husband
| was wrong and she was right, it is not expedient for
| this Court to enter into the fact and become a
| complainant at the behest of the husband-petitioner.
| Thus, I am of the considered view that it is not
| expedient to pursue the matter any further at the
| instance of the parties."

16. Armed with the above said decisions, the learned counsel for the respondent would submit that it is not for the petitioner to set the law in motion as far as the untenable claim is concerned and as per the decision of the Punjab and Haryana High Court [Jaswinder Singh's case] the Courts never become tools at the hands of the parties to satisfy private vendetta to take up cudgels on behalf of one party and punish the other.  She also states that as far as the contention of the petitioner is concerned, it is only to harass the respondent.

17. From the evidence of the respondent is has come to light that before the same Court she has taken different stands as to her marriage and the finding of the Court below that only offence made out against the first respondent is under section 193 I.P.C.is appropriate.  Hence, as per the dictum laid down by the Honourable Supreme Court in N.Natarajan's case it is incumbent upon the Magistrate to proceed with Section 340 Cr.P.C.as per the procedure laid  down in the provision.  In such a view of the matter, this Court is of the view that the learned Judicial Magistrate has to be directed to act in accordance with law as per Sections 195 and 340 Cr.P.C.

18. In fine, the revision is allowed directing the learned Judicial Magistrate, Mettupalayam to prefer complaint against the respondent and to act in accordance with Sections 195 and 340 Cr.P.C.  The learned Judicial Magistrate is also directed to dispose of the Maintenance Case within one month from the date of receipt of copy of this Order.
 




ggs

To

The Judicial Magistrate
Mettupalayam
Coimbatore