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Madhya Pradesh High Court · body

2008 DIGILAW 663 (MP)

Bhavani Shankar Sharma v. Keshri Singh Chouhan

2008-05-06

A.M.NAIK

body2008
ORDER 1. Petitioner was elected as Member of Jila Panchayat Hoshangabad. Respondent No.1 filed an election petition under section 122 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. During the trial, chief examination of the election petitioner was recorded in the Court of Additional Commissioner, Hoshangabad/Bhopal on 20.4.2007. Time for cross-examination was sought on behalf of respondent No.1. Learned Additional Commissioner fixed the case for 4.5.2007 and directed both the parties to remain present for cross-examination on the next date, i.e. 4th May, 2007. Presence of other witnesses was also directed. 2. Case of the petitioner is that he on 20.4.2007 submitted an application under Order 6 rule 17 CPC. Learned Additional Commissioner entertaining the election petition did not pass any order on the said application on 20.4.2007. Aggrieved by it, petitioner preferred WP No.5607/2007 before this Court wherein this Court on 16.5.2007 directed the prescribed authority to decide the petitioner's application under Order 6 rule 17 CPC and thereafter to proceed with the matter. Copy of this order is on record as Annexure P-1. Petitioner further alleged that later on he came to know that his application under Order 6 rule 17 CPC was rejected on 20.4.2007. He obtained certified copy of the order wherein it was mentioned that the rejection of the application under Order 6 rule 17 CPC was made on 20.4.2007. 3. Aforesaid was the gist of submissions of petitioner's learned counsel on 27.6.2007 when the case was listed on admission. This Court took it seriously which is evident from the following part extracted from the order-sheet of that day : "Case of the petitioner is that an election petition is pending before Additional Commissioner, Bhopal Division. An application was submitted by him for amendment under Order 6 rule 17 CPC on 20th April, 2007 (Annexure P-3). The application was not dealt with by the learned Additional Commissioner, instead, the case was fixed for 4th May, 2007 for cross-examination of the election petitioner. WP No.5607/2007 was submitted before this Court. The Court directed on 16.5.2007 to decide the application for amendment. It is submitted by the petitioner on affidavit that the respondent No.17 passed an order on the application for amendment on the earlier order-sheet in an antedated manner. WP No.5607/2007 was submitted before this Court. The Court directed on 16.5.2007 to decide the application for amendment. It is submitted by the petitioner on affidavit that the respondent No.17 passed an order on the application for amendment on the earlier order-sheet in an antedated manner. Respondent No.17 was directed to decide the application for amendment by this Court on 16.5.2007 whereas it is contended that the application has been decided by respondent No.17 on the order-sheet dated 20.4.2007 by writing it on the order-sheet as having passed the order later on, on the same day. This is ex facie not only impermissible in law but it amounts to misconduct on the part of respondent No.17. The contents of writ petition are duly supported by affidavit and are equally accompanied by certified copy of the order-sheet dated 20.4.2007 issued on 23.4.2007." Notices were accordingly issued and further proceedings were stayed. 4. Contention of the petitioner is that the application for amendment was rejected in antedated and a most mechanical manner. He further stated that in the earlier certified copy of the order dated 20.4.2007 there was no mention about the application for amendment whereas in the subsequent certified copy of order-sheet of the same date, the application under Order 6 rule 17 CPC is shown to have been rejected on 20.4.2007 itself in an antedated manner. Petitioner has placed an order of rejection on record as Annexure P-4. It is contended by Shri A.P. Singh, learned counsel for the petitioner that rejection of various paragraphs proposed by way of amendment application is illegal and arbitrary. The proposed amendment was required due to subsequent events and the same ought to have been allowed in the interest of justice. 5. Respondent No.1 submitted his return refuting thereby the allegations of the petitioner. It is stated in the return that the petitioner has not only made false averments and disclosures before this Court but has also supported them by affidavit. It is contended that the petitioner has wrongly averred in paragraph 3(iv), 5.1 and 5.2 of the writ petition that the application for amendment was rejected whereas the same was partly allowed by the impugned order. Writ petition is obviously supported by affidavit. It is contended that the petitioner has wrongly averred in paragraph 3(iv), 5.1 and 5.2 of the writ petition that the application for amendment was rejected whereas the same was partly allowed by the impugned order. Writ petition is obviously supported by affidavit. Secondly, it is contended that the petitioner on 16.5.2007 wrongly stated before this Court that no order on the application under Order 6 rule 17 CPC was passed by the prescribed authority who shall be directed to decide the application for amendment. This apart, it has been stated on merits that the evidence was partly recorded by the prescribed authority on 20.4.2007 and the order-sheet was duly dictated, prepared and signed by the learned Additional Commissioner. Matter was fixed for 4.5.2007. After closure of the order-sheet, the petitioner who was respondent No.1 in the election petition submitted an application under Order 6 rule 17 CPC. Arguments were heard on the same day and an order partly in favour of the petitioner was passed by the Additional Commissioner which was mentioned in the order-sheet itself as having occurred later on. Thus, it is contended that the application has rightly been decided and no interference is warranted. 6. Apart from the aforesaid, an application under section 340 CrPC has also been submitted by respondent No.1 narrating therein various false statements made in the writ petition as well as affidavits of respondent No.1. Accordingly, it has been stated that respondent No.1 has committed offence of perjury and is liable to be prosecuted. Petitioner submitted reply to interlocutory application under section 340 of CrPC dated 11.3.2008. Counter to the same has also been filed by respondent No.1. Respondents No.16 and 17 also submitted their return with certain documents. 7. Learned counsel for parties made their submissions extensively in respect of writ petition as well as application under section 340 CrPC which have been considered in the light of material on record. 8. As regards rejection of amendment reliance has been placed by the petitioner on the decision of the apex Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others [ (2007)5 SCC 602 ]. Accordingly, it is contended that the application for amendment was liable to be allowed in toto. 8. As regards rejection of amendment reliance has been placed by the petitioner on the decision of the apex Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others [ (2007)5 SCC 602 ]. Accordingly, it is contended that the application for amendment was liable to be allowed in toto. Decision of Usha Balashaheh Swami (supra), clearly lays down that the Court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments is necessary for determining the real question in controversy between the parties. Apex Court in the case of Usha Balashaheb Swami (supra), has further clearly held that : "The provisio to Order 6 rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." In the present case the trial had already commenced whereas in the case of Usha Balashaheb Swami (supra), the trial had not commenced. This being so, the decision cited by the learned counsel Shri A.P. Singh cannot be invoked. 9. It is a trite law that amendment will have to be allowed in case, if it is necessary for full and final adjudication of the controversy involved. Amendment proposed in the election petition is also to be viewed from the angle of election laws. Learned trial Judge while allowing a part of the amendment application and rejecting the remaining part thereof has clearly held that the amendment proposed vide paragraph 9(kha) is in the nature of repetition of averments. Other pieces of amendment proposed vide paragraph 9(ga) and (gha) were also not found to be necessary since they have no bearing on the controversy involved in the election petition. The petitioner has not chosen to place on record copy of written statement to demonstrate that the rejected pieces of proposed amendment are not in the nature of repetition or are required to decide the controversy. Although, a copy of written statement is enclosed with the return, learned counsel for petitioner did not make effort to rebut the reasons assigned for rejection of amendment. Although, a copy of written statement is enclosed with the return, learned counsel for petitioner did not make effort to rebut the reasons assigned for rejection of amendment. Learned counsel for the petitioner has also been unable to demonstrate that the rejected portion of amendment application is required for full and final adjudication of the election petition. After going through the pleadings, I do not find any infirmity in the finding of the learned prescribed authority that the proposed rejected amendment has no bearing on the election petition. This being so, I do not find any merit in the writ petition and the same is consequently dismissed. 10. As regards application under section 340 of CrPC, I feel it convenient to reproduce sub-section (1) of section 340 of CrPC : "(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of 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 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." 11. Copy of the written statement submitted by the petitioner in the election petition is on record being annexed to the return of respondents No.16 and 17 (Annexure R-1) which goes to show that paragraph 9(ka) was incorporated in the written statement on 4.5.2007. This amendment was incorporated in pursuance of the order of the prescribed authority made on 4.5.2007 itself. Thus, the petitioner very well knew that the application for amendment was decided and partly allowed. This amendment was incorporated in pursuance of the order of the prescribed authority made on 4.5.2007 itself. Thus, the petitioner very well knew that the application for amendment was decided and partly allowed. Despite this, it appears that the petitioner in order to gain undue favour, on 16.5.2007 (in WP No.5607/07) as well as on 27.6.2007 (in present writ petition) made a wild allegation before this Court that no order on application for amendment was passed and the learned prescribed authority was proceeding with the trial of the election petition without deciding the application for amendment. This is clearly an incorrect and false statement made by the petitioner deliberately despite having knowledge of allowing the amendment and incorporation thereof on 4.5.2007. This apart, it may be seen that the petitioner averred in paragraphs 3(iv), 5.1 and 5.2 of the writ petitioner that his application for amendment was rejected whereas the same was not rejected but was partly allowed. Additionally, petitioner has made an allegation that the prescribed authority did not pass the order on 20.4.2007 on his application under Order 6 rule 17 CPC. On perusal, it may be seen from Annexure R-1, that the application for amendment was submitted on 20.4.2007. From the order-sheet dated 20.4.2007, it appears that the chief examination of the election petitioner was recorded and time was sought for his cross-examination. Case was fixed for 4.5.2007 and the entire order-sheet was written and signed by the prescribed authority. In the margin of the order-sheet, signature on behalf of respondent No.1 is there. Learned counsel admitted that signature on behalf of respondent No.1 was put in the margin of the order-sheet. Although there was no mention till then in the order-sheet about the application for amendment but the signature on behalf of parties to the election petition were put without any objection having been raised about the absence of mention with regard to amendment application. Order-sheet dated 20.4.2007 is extended by continuing as 'later on'. In the 'later on' portion of order-sheet dated 20.4.2007 there is a mention of application for amendment having been filed and heard. This was clearly mentioned in the order-sheet dated 20.4.2007 as 'later on proceedings'. On the last page of 'later on proceedings' dated 20.4.2007, order-sheet dated 4.5.2007 was written wherein it was clearly mentioned that the learned counsel on behalf of petitioner participated in proceedings and performed cross-examination. This was clearly mentioned in the order-sheet dated 20.4.2007 as 'later on proceedings'. On the last page of 'later on proceedings' dated 20.4.2007, order-sheet dated 4.5.2007 was written wherein it was clearly mentioned that the learned counsel on behalf of petitioner participated in proceedings and performed cross-examination. On this very day (i.e. 4.5.2007), the amendment was incorporated in the written statement as revealed in Annexure R-1. Had there been any adjudication of application for amendment in an antedated manner, the petitioner could have and would have objected to it before the incorporation of amendment or atleast on the same day. No such objection was raised and it seems that the allegation has been made against the prescribed authority in a mischievous manner as an afterthought with an ulterior motive of gaining undue advantage from this Court. The allegations levelled by the petitioner do not receive support from the drift of events and are found to be false within the knowledge of petitioner himself. 12. Shri A.P. Singh, learned counsel contended that the certified copy marked as Annexure P-4 does not contain a mention about the application for amendment and its disposal. On perusal, it is found, firstly, that it is not a certified copy but a photocopy of certified copy. Secondly, it does not contain the dates and seal of copying section so as to ascertain that on what date the application was submitted and on what date it was issued. In the absence of any such seal about the dates of application, preparation of certified copy and delivery thereof, Annexure P-4 cannot be treated as an authentic complete document. Moreover, the petitioner would have definitely objected on 4.5.2007, had there been any antedated order in respect of his application under Order 6 rule 17 CPC. 13. Shri A.P. Singh, learned counsel contended that the application under section 340 CrPC being not supported by affidavit is liable to be rejected. The words employed in sub-section (1) of section 340 CrPC being not supported by affidavit is liable to be rejected. The words employed in sub-section (1) of section 340 CrPC go to suggest that it is objective satisfaction of the Court whereupon necessary order under section 340 may be made. Supportive material in the present case is the order-sheet of this Court and certified copies of various order-sheets and documents. The words employed in sub-section (1) of section 340 CrPC go to suggest that it is objective satisfaction of the Court whereupon necessary order under section 340 may be made. Supportive material in the present case is the order-sheet of this Court and certified copies of various order-sheets and documents. This being so, the absence of affidavit will not be fatal to the application under section 340 of CrPC, more so, when the Court itself is also otherwise empowered to form an opinion that an offence referred to in section 340 appears to have been committed and interest of justice requires an enquiry contemplated under section 340 of CrPC. 14. Next reliance has been placed by Shri A.P. Singh, learned counsel on the decision of the Supreme Court in Criminal Appeal No.631 of 1990 K.T.M.S. Mohd. and another v. Union of India [ (1992)3 SCC 178 ]. He referred to following paragraphs : "36. The above provisions of section 340 of the Code of Criminal Procedure are alluded only for the purpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statements in a judicial proceeding. 37. The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under section 193 IPC but it must be established that the deponent has intentionally given a false statement in any stage of the 'judicial proceeding' or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice." In the case in hands it is found that the petitioner has knowingly made the false statement in order to gain undue favour. Apex Court in the case of K.T.M.S. Mohd. (supra), has held that merely on the basis of contradictory statements, section 340 cannot be invoked to justify a prosecution for perjury. In the present case statements made by the petitioner are found to be false within the knowledge of the petitioner himself and are not merely contradictory. This being so, this Court is of the opinion that a case under section 340 CrPC is made out. 15. In the present case statements made by the petitioner are found to be false within the knowledge of the petitioner himself and are not merely contradictory. This being so, this Court is of the opinion that a case under section 340 CrPC is made out. 15. Before parting with the case, I feel it proper to profitably refer to Hon'ble Supreme Court's decision in the case of Re : Suo Moto Proceedings against Mr. R. Karuppan, Advocate [ AIR 2001 SC 2204 ], wherefrom strength is being derived for issuing necessary direction. "In India, law relating to the offene of perjury is given a statutory definition under section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the Courts which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the Courts despite taking oath make false statements to suit the interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let lose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the Courts stop to take an evasive recourse despite proof of the commission of the offence under Chapter XI of the Indian Penal Code. If the system is to survive, effective action is the need of the time. The present case is no exception to the general practice being followed by many of the litigants in the country." 16. It is really surprising that the petitioner despite knowing fully well about allowing the amendment in part and incorporating amendment to that effect on 4.5.2007, made before this Court through his lawyer on 16.5.2007 as well as 27.6.2007 incorrect wild allegations against the presiding officer (learned Additional Commissioner, Hoshangabad/ Bhopal) that amendment application was not decided until 16.5.2007. It is really surprising that the petitioner despite knowing fully well about allowing the amendment in part and incorporating amendment to that effect on 4.5.2007, made before this Court through his lawyer on 16.5.2007 as well as 27.6.2007 incorrect wild allegations against the presiding officer (learned Additional Commissioner, Hoshangabad/ Bhopal) that amendment application was not decided until 16.5.2007. He did not choose to withdraw the petition and instead pressed the aforesaid contentions which are contrary to the order-sheet Annexure P-2 read with Annexure R-1/4 (it is a certified copy of written statement containing part of amendment proposed vide amendment application dated 20.4.2007 and incorporated on 4.5.2007). Thus, an offence under Chapter XI of IPC specially under sections 191, 199, 200 and 209 thereof appears to have been committed by the petitioner. 17. Attention of Additional Commissioner is drawn to the order of learned Division Bench passed on 20.3.2007 in WA No. 1078/2006. Accordingly, adjudication of the election petition is required to be made within two months. However, it is made clear that learned Additional Commissioner shall not get influenced by any of the observations made in this order and shall decide the election petition in accordance with law on the basis of material before it. 18. In the result, WP No.7456/07 is hereby dismissed with costs of Rs.2,000/-. Application under section 340 CrPC is hereby allowed. Accordingly, Registrar (Judicial) is directed to send the matter by making an appropriate complaint to the Court having competent jurisdiction at Jabalpur for registering a case under appropriate provisions of chapter XI of IPC including sections 191, 199, 200 and 209 thereof for trial against the petitioner in accordance with law. It is made clear that the Court trying the complaint shall have power to add any other person in accordance with law if he is found involved and guilty on the basis of material on record.