Fundamental right
Guest
(Querist) 15 October 2011
This query is : Resolved
a case was filed against CAT order, before division bench of the high court.
the court decided the matter relying upon records produced before court by respondents.
the record was forged and no copy thereof was served to the petitioner.
all grounds and even the main issue was pretermitted by the court and an obiter was dictated by court in the judgment.
Strangely, there are no pleadings in the case from the respondent's side.
CAN WE MOVE A NEW PETITION IN THE FORM OF PIL OR SOME OTHER KIND PRAYING TO REHEAR THE MATTER AS A FUNDAMENTAL RIGHT TO GET AN OPPORTUNITY OF A FULL CONTEST BEFORE COURT, AFTER ISSUANCE OF NOTICE ?
ajay sethi
(Expert) 15 October 2011
why you want to file a fresh petition . ? either go in appeal before supreme court pointing out that order has been passed without hearing the petitioners .
if no copy was served upon you will did you not at the stage of aruments raise the said grievance?
if records are forged and you are in a position to substaniate your claim you cn aalso file review petition
Guest
(Querist) 15 October 2011
Sethi ji,
Could an application under sec.340 help us before filing review or appeal?
ajay sethi
(Expert) 15 October 2011
what basis have you come tot he conclusion that documents are forged .
the statement made by you that issue was predeermined by division bench of high court raises doubt as to whether you have drawn the right conclusions on the documents .
my sincere advice to you is consult your local lawyer . let him go through the documents and let him advice you in the matter as to what proceedings should be adopted by you .
Guest
(Querist) 15 October 2011
Sethi ji,
HOWEVER I HAVE PROOF TO THE EFFECT THAT THE DOCUMENTS ARE FORGED.
A COMPLAINT MADE BY ME, WAS THE BASIS OF ALL DEPARTMENTAL PROCEEDINGS, WHICH I NEVER MADE.NO SUCH COMPLAINT HAS BEEN PUT ON RECORD.
ASTOUNDINGLY NO COPY OF ANY OTHER RECORD HAS BEEN PUT ON RECORD OF THE CASE FILE BEFORE HIGH COURT.
WILL IT SUFFICE TO STATE BEFORE THE COURT?
NOW, CAN WE MOVE THE 340 CRPC APPLICATION BEFORE REVIEW ?
ajay sethi
(Expert) 15 October 2011
Section 340 Cr PC has been devised as a way to prohibit and create a fear in the mind of those who file false documents or give false evidence in the Court of Law.
The provision certainly acts as a deterrent to those who states false facts before the Court of Law.
Judgment of the Supreme Court in Re: Suo Motu Proceedings against R. Karuppan, Advocate, (2001) 5 SCC 289.
It has been held that giving false evidence has become a general practice and Courts should take stern and effective action against such offence and stop taking evasive recourse. It would be useful to reproduce the observations made by the Supreme Court in Paras 13 to 17, which are as under: 13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of
proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy. 14. At common law courts took action against a person who was shown to have made a statement, material in the proceedings, which he knew to be false or did not believe to be true. The offence committed by him is known as perjury. Dealing with the history of the offence, Stanford H. Kadish in Encyclopedia of Crime and Justice (Vol. 3) observed: ?History of the offense Before witnesses had any formal role in trials, there was no need for a perjury law. In the Middle Ages, when the English common law was developing, trial by battle was used to test a sworn accusation. Similarly, for the sworn denial of a serious charge based on mere suspicion, an ordeal administered by a priest was the predominant mode of trial until it was abolished in 1215 as superstitious. Finally, at least until the Assize of Clarendon (1166), less serious accusations could be successfully answered by ?compurgation?, that is, by obtaining a sufficient number of ?oath helpers? to support the defendant?s credibility. Trials in the modern sense began to
develop only in the thirteenth century. Little is reliably known about the conduct of jury trials prior to the sixteenth century, but in civil cases, it seems that genuine witnesses were permitted to give their accounts, although they could not be compelled to appear. In early criminal cases, community, brought the suspect before a Judge. Those witnesses who did attend these early trials were perceived as part of the jury and retired with them to deliberate, often to make their disclosures in secret. It was the verdict, not the testimony, that was perceived as either true or false; the only remedy for falsehood remotely akin to a perjury prosecution was a seldom invoked procedure called ?the writ of attaint?, created in 1202 and not abolished formally until 1825. Through attaint, the jury would be punished for a ?false? verdict and the verdict itself overturned. Witnesses first testified under oath in criminal cases on behalf of the Crown in the sixteenth century. No witnesses for the defense were permitted until the mid-seventeenth century, since they would have been witnesses against the Crown, and not until 1702 were defense witnesses permitted to be sworn [1 Anne, St. 2, c. 9, s. 3 (1701) (England) (repealed)]. By the late seventeenth century the jury had lost all its testimonial functions, and witnesses thus became the sole means of bringing facts to the Judge?s and jury?s attention. Since the early common law had no established mechanism for dealing with false swearing by witnesses, the Court of Star Chamber assumed for itself the power to punish perjury. This authority was confirmed by statute in 1487 [Star Chamber Act, 3 Hen. 5, c. 1 (1487) (England) (repealed)]. The first detailed statute against false swearing was enacted in 1562 [5 Eliz. 1, c. 9 (1562) (England) (repealed)]. When the Star Chamber was abolished in 1640, its judicially defined offense of perjury passed into English common law, reaching any cases of false testimony not covered by the terms of the statute. Edward Coke, whose views strongly influenced early American law, wrote in his Third Institute , published in 1641, that perjury was committed when, after a ?lawful oath? was administered in a ?judicial proceeding?, a person swore ?absolutely and falsely? concerning a point ?material? to the issue in question (*164). In this form, the law remained unchanged into the twentieth century.? 15. In India, law relating to the offence 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 loose 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. Keeping in view the facts and circumstances of this case, the record of proceedings in Suo Motu Contempt Petition (Criminal) No. 5 of 2000 and Writ Petition No. 77 of 2001, we are prima facie satisfied that the respondent herein, in his affidavit filed in support of the writ petition (for the purposes of being used in the judicial proceedings i.e. writ petition), has wrongly made a statement that the age of Dr Justice A.S. Anand has not been determined by the President of India in terms of Article 217 of the Constitution. We are satisfied that such a statement supported by an affidavit of the respondent was known to him to be false, which he believed to be false and/or at least did not believe to be true. It is not disputed that an affidavit is evidence within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition is prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under Section 191 IPC, punishable under Section 193 IPC.
Sankaranarayanan
(Expert) 15 October 2011
i do agree with mr sethi's explanation
Guest
(Querist) 15 October 2011
WELL ANSWERED BY SETHI JI.
Guest
(Querist) 15 October 2011
sethi ji,
thanks a lot.
now before proceeding with the application, is it necessary to ask high court to direct the respondent to file an affidavit regarding the same documents?
the specific extracts of the documents have been made by high court in the judgment, whcih is enough for us to prove the perjury.
Guest
(Querist) 15 October 2011
Mr. dontbegod,
urnotgod thanks you too.
Raj Kumar Makkad
(Expert) 15 October 2011
I think you should file review petition before high court and when matter re-opens only then you should move your application under section 340 as this can be moved only in the pending matter and is not maintainable in the decided case.
ajay kumar mishra
(Expert) 15 October 2011
I agree with Mr. Makkad and appreciate the view of MR. Sethi.
Guest
(Querist) 15 October 2011
I think like "wanted" movie's "SONU" I am recognized everytime.
No much use of this site.
Guest
(Querist) 15 October 2011
Rajkumar ji,
kindly quote a citation or particular section/part of book supporting your view.
If the forgery comes in knowledge after conclusion of case?
Raj Kumar Makkad
(Expert) 15 October 2011
In Section 340 Cr PC the aforesaid expression has been used which certainly states and throws light that if any offence as mentioned in Section 195 Cr PC (1) (b) has been committed which certainly means the offence of stating false facts and producing fabricated documents in the Court than the same Court in whose proceedings the falsity has been done or a fabricated document has been submitted has the power to take cognizance and the decision is with that particular Court as to whether to take cognizance or not and if the said Court is satisfied it will hold a preliminary enquiry.
This is an established law and no special citation is required for the purpose I suggested.
