AARISH ASGAR QURESHIversusFAREED AHMED QURESHI & ANR.

400                      [2019]REPORTS
               SUPREME COURT   3 S.C.R. 400                [2019] 3 S.C.R.


A                        AARISH ASGAR QURESHI
                                       v.
                    FAREED AHMED QURESHI & ANR.
                       (Criminal Appeal No. 387 of 2019)
B                            FEBRUARY 26, 2019
               [R. F. NARIMAN AND VINEET SARAN, JJ.]
             Code of Criminal Procedure, 1973 – s.340 – Matrimonial
      proceedings – Certain averments made in anticipatory bail
      applications both before the Sessions Court as well as the High
C
      Court – Allegation that the statements made were knowingly false
      and were deliberately made in order to get favourable orders from
      the Court – Sessions Court held that the application filed by the
      applicant is premature – Same statements made in anticipatory bail
      application before the High Court – High Court found that statement
D     made in the aforesaid application was false and therefore, a prima
      facie case was made out for perjury u/s.340 and that it would be
      expedient in the interest of justice to prosecute the appellant – On
      appeal, held: There should be something deliberate- a statement
      should be made deliberately and consciously which is found to be
      false as a result of comparing it with unimpeachable evidence,
E
      documentary or otherwise – In the facts of the present case, the
      statement made in the anticipatory bail application cannot be tested
      against unimpeachable evidence as evidence has not yet been led –
      High Court has not scrutinised any evidence as there was none to
      scrutinise – All that the High Court has seen is a preliminary
F     investigation report, and that too by a police officer, together with
      a High Court order granting anticipatory bail, none of which can
      be said to be unimpeachable evidence against which it can clearly
      be stated that a prima facie case of perjury can be said to have been
      made out – Order of the High Court set aside.
G           Allowing the appeal, the Court
            HELD: 1.1 There should be something deliberate- a
      statement should be made deliberately and consciously which is
      found to be false as a result of comparing it with unimpeachable
      evidence, documentary or otherwise. In the facts of the present
H
                                     400
  AARISH ASGAR QURESHI v. FAREED AHMED QURESHI                          401


case, it is clear that the statement made in the anticipatory bail      A
application cannot be tested against unimpeachable evidence as
evidence has not yet been led. Moreover, the report dated
12.11.2011 being a report, which is in the nature of a preliminary
investigation report by the investigating officer filed only two days
after the F.I.R. is lodged, can in no circumstances be regarded as
                                                                        B
unimpeachable evidence contrary to the statements that have
been made in the anticipatory bail application. Though the
submission recorded by the High Court in para 3 of the order
dated 30.11.2017 is from the aforesaid paragraph in the anticipatory
bail application, yet, the High court made it clear that it was
granting anticipatory bail principally because the F.I.R. annexed       C
to the bail application does not show that there was sexual
intercourse of the applicant with his wife during the course of
their separation as a result of which it was not possible to assess
whether the averment regarding the offence punishable under
Section 377 of the I.P.C. is or is not substantiated. The High
                                                                        D
Court also recorded that considering that the husband and wife
had resided together after marriage only for a very brief period,
and that the husband was granted interim anticipatory bail, decided
to grant final anticipatory bail on these grounds. It is clear,
therefore, that both the grounds stated by the High Court would
not suffice to initiate prosecution under Section 340 read with         E
Section 195 (1)(b) of the Cr.P.C. [Para 10] [408-B-F]
      1.2 In the facts of the present case, the High Court has not
scrutinised any evidence as there was none to scrutinise. Further,
all that the High Court has seen is a preliminary investigation
report, and that too by a police officer, together with a High Court    F
order granting anticipatory bail, none of which can be said to be
unimpeachable evidence against which it can clearly be stated
that a prima facie case of perjury can be said to have been made
out. [Para 13] [409-F-H]
       1.3 The arguments of learned counsel appearing on behalf         G
of the appellant that the High Court has not satisfied itself that it
is expedient in the interest of justice to proceed with the matter
does not appear to be correct. Such finding is recorded. However,
it is found otherwise that it ought not to have so proceeded.
Equally, not impressed by the argument by the appellant’s counsel
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402            SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A     on suppression of the Sessions Court order. The impugned order
      of the High Court is set aside. [Paras 15, 16] [410-C-D]
            Sarvepalli Radhakrishnan University and Another v.
            Union of India and Others 2019 SCC OnLine SC 51 –
            distinguished.
B           Chajoo Ram v. Radhey Shyam (1971) 1 SCC 774:
            [1971] Suppl. SCR 172; Chandrapal Singh and
            Others v. Maharaj Singh and Another (1982) 1 SCC
            466 ; R.S. Sujatha v. State of Karnataka and Others
            (2011) 5 SCC 689 : [2010] 14 SCR 227 – relied on.
C           Karunakaran v. T. V. Eachara Warrier and Another
            (1978) 1 SCC 18 : [1978] 2 SCR 209 ; State of Goa v.
            Jose Maria Albert Vales alias Robert Vales (2018) 11
            SCC 659 ; M.S. Sherif v. State of Madras AIR 1954
            SC 397 : [1954] SCR 1229; Perumal v. Janaki (2014)
D           5 SCC 377 : [2014] 1 SCR 591; H.S. Bedi v. National
            Highway Authority of India 2015 SCC OnLine Del
            9524 – referred to.
                             Case Law Reference
            [1971] Suppl. SCR 172       relied on           Para 7
E
            (1982) 1 SCC 466             relied on          Para 8
            [2010] 14 SCR 227            relied on          Para 9
            [1978] 2 SCR 209             referred to        Para 11
            (2018) 11 SCC 659            referred to        Para 13
F
            [1954] SCR 1229              referred to        Para 13
            [2014] 1 SCR 591             referred to        Para 14


            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
G
      No. 387 of 2019
            From the Judgment and Order dated 07.03.2018 of the High Court
      of Judicature at Bombay in Criminal Application No. 728 of 2017.


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   AARISH ASGAR QURESHI v. FAREED AHMED QURESHI                                403


      Mrs. Amrita Panda, Neil Chatterjee, Debesh Panda, Advs. for              A
the Appellant.
      Nilesh Ojha, Vijay Kumar, R. C. Sharma, Mareesh Pravir Sahay,
Advs. for the Respondents.
      The Judgment of the Court was delivered by
                                                                               B
      R. F. NARIMAN, J. 1. Leave granted.
       2. The present case arises out of a judgment dated 07.03.2018 of
the High Court of Judicature at Bombay, in which the High Court felt
that a prima facie case has been made out for perjury under Section 340
of the Cr.P.C., and that it would be expedient in the interest of justice to   C
prosecute the appellant before us.
       3. The present case arises out of matrimonial proceedings in which
certain averments have been made in anticipatory bail applications both
before the Sessions Court as well as the High Court. Insofar as the
anticipatory bail application before the Sessions Court is concerned, the      D
applicants in the aforesaid application stated:
      “8. That the Applicant No.1 was deeply troubled by these
      developments and thus approached his mother in law, Naseem
      Qureshi to ask for her intervention in this matter and in the hope
      that a mother would be able to talk sense to her own daughter and
                                                                               E
      improve their relations. However, despite the intervention of several
      family members, there was no change in Sana’s behaviour. During
      this period, it came to light that Sana was having an affair with
      one Waseem Shaikh who resided in Mahim. The in-laws of the
      Applicant No.1 admitted that they were aware of this relationship
      which had been going on prior to the marriage of the Applicant           F
      No.1 with Sana but as the said Waseem Shaikh belonged to another
      community, they did not approve of the relationship and had forced
      Sana to marry the Applicant No.1.
      11. That on the 29th of October, 2016, the Applicant No.1 went to
      fetch Sana from her maternal home and was completely aghast              G
      to find Sana in a compromising position with Waseem Shaikh.
      That the Applicant No.1 was further shocked that such incidences
      were occurring right under the nose of his in-laws who were doing
      nothing to discourage their daughter from maintaining these illicit
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404            SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A           relations. Thereafter, the Applicants made it clear to the
            Complainant and his family members that they would not tolerate
            the continuance of such illicit relations which went against the
            sacred institution of marriage and demanded that Sana stop all
            interactions with the said Waseem Shaikh and that she should
            genuinely try to make her marriage work. However, Sana refused
B
            to comply and in November, 2016, Sana left her matrimonial home
            taking with her various items.”
            When the aforesaid statements were brought to the notice of the
      Sessions Court, and it was argued before the Sessions Court that these
      were knowingly false statements deliberately made in order to get
C     favourable orders from the Court, the Sessions Court by a judgment
      dated 12.02.2018 held:
            “The accused are charged for the offences punishable under
            Sections 323, 376(b), 377, 406, 498A, 504 and 506 read with 34 of
            the Indian Penal Code and under Sections 3 and 4 of the Dowry
D           Prohibition Act, 1961. F.I.R. was registered on 19-11-2017. Still
            charge-sheet is not filed before the Court therefore, proceeding
            against the Accused Nos.1 to 7 is yet to be conducted. Evidence
            of prosecution witnesses and defence witnesses, if any, are yet to
            be recorded. After recording of evidence, both parties having an
E           opportunity to cross-examine the witness. Thereafter, it will be
            decided whether the allegation made by the accused persons are
            true or false. At this juncture, contradictory statement of Accused
            Nos. 1 to 7 are before the Court. Now, the truthfulness of the
            statement is not decided. Admittedly, if the person made false
            statement before the Court on oath, he is liable for punishment.
F           However, for that purpose, it is necessary to come to the
            conclusion that the accused persons had made false statement.
            Merely, on the basis of contradictory statement made by the
            accused, they cannot be punished, at this juncture, and cannot
            initiate proceeding under Section 340 of Cr.P.C., as the allegations
G           are yet to be proved in the case filed by the victim. Therefore, this
            application filed by the applicant is premature.”
             4. The same statements were made in an anticipatory bail
      application before the High Court. The High Court found that an
      investigating officer had filed a Report dated 24.11.2017 and recorded a
H
   AARISH ASGAR QURESHI v. FAREED AHMED QURESHI                                  405
                 [R. F. NARIMAN, J.]

finding that the allegations made in the anticipatory bail application were      A
false. It prima facie appeared to the Court that the Respondent No.2
has made a false statement in the aforesaid application and that therefore,
a case for filing a complaint under Section 340 read with Section 195(1)(b)
of the Cr.P.C. is made out and it is expedient in the interest of justice that
an enquiry be made by the judicial magistrate having jurisdiction. The
                                                                                 B
High Court also referred to para 3 of an order dated 30.11.2017 in which
the aforesaid allegations were repeated and, according to the High Court,
anticipatory bail was granted.
       5. Mrs. Amrita Panda, learned counsel appearing on behalf of the
appellant, has stated that the so-called investigation report is a preliminary
report made by an investigating officer two days after the filing of the         C
F.I.R. in which no findings whatsoever had been recorded about the
falsity of the statements made in the anticipatory bail application. She
also argued that the High Court order of 30.11.2017 merely recorded
the allegation that was found to be false as a submission made by
appellant’s counsel. However, the anticipatory bail was granted for              D
reasons that were entirely different from the submission made. She
also argued before us that it was highly improper on the part of the
respondents to have suppressed the proceeding that ultimately culminated
in the Sessions Court order of 12.02.2018, and said that on this ground
also since the respondents approached the High Court with unclean
hands, the impugned order ought to be set aside. She cited certain               E
judgments to buttress her contentions.
       6. Mr. Nilesh Ojha, learned counsel appearing on behalf of the
Respondent No.1, has countered these submissions. On suppression,
he has stated that, as a matter of fact, the application for anticipatory
bail made in the Sessions Court was made after that made in the High             F
Court, and effective arguments were over in the High Court by the 8th
and 9th of February. Obviously therefore, the order dated 12.02.2018
could not be brought to the notice of the High Court. He also stated that
the anticipatory bail application made before the Sessions Court was a
separate and independent application, which the Sessions Court dealt             G
with, and the anticipatory bail application made before the High Court
again being separate, it was open to the High Court to arrive at its own
conclusion in an independent proceeding as to whether a prima facie
case under Section 340 has been made. He also relied upon certain
judgments to buttress his arguments.
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406            SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A            7. The law under Section 340 on initiating proceedings has been
      laid down in several of our judgments. Thus in Chajoo Ram vs. Radhey
      Shyam, (1971) 1 SCC 774, this Court, in para 7, stated:
            “7. … No doubt giving of false evidence and filing false affidavits
            is an evil which must be effectively curbed with a strong hand but
B           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
C           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.”
            8. Similarly in Chandrapal Singh and Others vs. Maharaj
      Singh and Another, (1982) 1 SCC 466, this Court, in para 14, stated:
D
            “14. That leaves for our consideration the alleged offence under
            Section 199. Section 199 provides punishment for making a false
            statement in a declaration which is by law receivable in evidence.
            We will assume that the affidavits filed in a proceeding for allotment
            of premises before the Rent Control Officer are receivable as
E           evidence. It is complained that certain averments in these affidavits
            are false though no specific averment is singled out for this purpose
            in the complaint. When it is alleged that a false statement has
            been made in a declaration which is receivable as evidence in any
            Court of Justice or before any public servant or other person, the
F           statement alleged to be false has to be set out and its alleged
            falsity with reference to the truth found in some document has to
            be referred to pointing out that the two situations cannot co-exist,
            both being attributable to the same person and, therefore, one to
            his knowledge must be false. Rival contentions set out in affidavits
            accepted or rejected by courts with reference to onus probandi
G           do not furnish foundation for a charge under Section 199, I.P.C.
            To illustrate the point, appellant 1 Chandrapal Singh alleged that
            he was in possession of one room forming part of premises No.
            385/2. The learned Additional District Judge after scrutinising all
            rival affidavits did not accept this contention. It thereby does not
H           become false. The only inference is that the statement made by
  AARISH ASGAR QURESHI v. FAREED AHMED QURESHI                                  407
                [R. F. NARIMAN, J.]

      Chandrapal Singh did not inspire confidence looking to other              A
      relevant evidence in the case. Acceptance or rejection of evidence
      by itself is not a sufficient yardstick to dub the one rejected as
      false. Falsity can be alleged when truth stands out glaringly and to
      the knowledge of the person who is making the false statement.
      Day in and day out, in courts averments made by one set of
                                                                                B
      witnesses are accepted and the counter averments are rejected.
      If in all such cases complaints under Section 199, I.P.C. are to be
      filed not only there will open up floodgates of litigation but it would
      unquestionably be an abuse of the process of the Court. The
      learned Counsel for the respondents told us that a tendency to
      perjure is very much on the increase and unless by firm action            C
      courts do not put their foot down heavily upon such persons the
      whole judicial process would come to ridicule. We see some force
      in the submission but it is equally true that chagrined and frustrated
      litigants should not be permitted to give vent to their frustration by
      cheaply invoking jurisdiction of the criminal court. Complainant
                                                                                D
      herein is an Advocate. He lost in both courts in the rent control
      proceedings and has now rushed to the criminal court. This itself
      speaks volumes. Add to this the fact that another suit between
      the parties was pending from 1975. The conclusion is inescapable
      that invoking the jurisdiction of the criminal court in this background
      is an abuse of the process of law and the High Court rather glossed       E
      over this important fact while declining to exercise its power under
      Section 482, Cr. P.C.”
      9. Both these judgments were referred to and relied upon with
approval in R.S. Sujatha vs. State of Karnataka and Others, (2011) 5
SCC 689 (at paras 15 & 16). This Court, after setting down the law laid         F
down in these two judgments concluded:
      “18. Thus, from the above, it is evident that the inquiry/contempt
      proceedings should be initiated by the court in exceptional
      circumstances where the court is of the opinion that perjury has
      been committed by a party deliberately to have some beneficial            G
      order from the court. There must be grounds of a nature higher
      than mere surmise or suspicion for initiating such proceedings.
      There must be distinct evidence of the commission of an offence
      by such a person as mere suspicion cannot bring home the charge
      of perjury. More so, the court has also to determine as on facts,
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408             SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A           whether it is expedient in the interest of justice to inquire into the
            offence which appears to have been committed.”
              10. It is clear therefore from a reading of these judgments that
      there should be something deliberate - a statement should be made
      deliberately and consciously which is found to be false as a result of
B     comparing it with unimpeachable evidence, documentary or otherwise.
      In the facts of the present case, it is clear that the statement made in the
      anticipatory bail application cannot be tested against unimpeachable
      evidence as evidence has not yet been led. Moreover, the report dated
      12.11.2011 being a report, which is in the nature of a preliminary
      investigation report by the investigating officer filed only two days after
C     the F.I.R. is lodged, can in no circumstances be regarded as unimpeachable
      evidence contrary to the statements that have been made in the
      anticipatory bail application. Further, as has been correctly pointed out
      by learned counsel appearing on behalf of the appellant, that though the
      submission recorded by the High Court in para 3 of the order dated
D     30.11.2017 is from the aforesaid paragraph in the anticipatory bail
      application, yet, the High court made it clear that it was granting
      anticipatory bail principally because the F.I.R. annexed to the bail
      application does not show that there was sexual intercourse of the
      applicant with his wife during the course of their separation as a result
      of which it was not possible to assess whether the averment regarding
E     the offence punishable under Section 377 of the I.P.C. is or is not
      substantiated. The High Court also recorded that considering that the
      husband and wife had resided together after marriage only for a very
      brief period, and that the husband was granted interim anticipatory bail,
      decided to grant final anticipatory bail on these grounds. It is clear,
F     therefore, that both the grounds stated by the High Court would not
      suffice to initiate prosecution under Section 340 read with Section 195
      (1)(b) of the Cr.P.C.
             11. Learned counsel appearing on behalf of the Respondent No.1,
      however, cited a number of judgments. Thus in K. Karunakaran vs.
G     T.V. Eachara Warrier and Another, (1978) 1 SCC 18, this Court, after
      referring to Chapter XXVI of the Code of Criminal Procedure, 1973
      reiterated that a statement cannot be said to be false unless it is done
      deliberately or intentionally (see paras 23 & 30). Considering that this
      Court was hearing an appeal against a High Court order initiating
      prosecution it held that when two views are possible in the matter it will
H
   AARISH ASGAR QURESHI v. FAREED AHMED QURESHI                               409
                 [R. F. NARIMAN, J.]

not be expedient in the interest of justice to interfere with the aforesaid   A
order (see para 26).
        12. In Sarvepalli Radhakrishnan University and Another vs.
Union of India and Others, 2019 SCC OnLine SC 51, this Court referred
to the facts in that case in which the Court constituted a high level
committee headed by a senior officer deputed by the Director, Central         B
Bureau of Investigation with two doctors of the All India Institute of
Medical Sciences as its members to go into the facts. The Committee
gathered facts in great detail, as is mentioned in paras 8 & 9 of the
aforesaid judgment, and ultimately came to certain conclusions after a
detailed enquiry. It is in this circumstance that this Court found, after
perusing the Committee’s Report, that the College in question had             C
manufactured records brazenly in order to obtain favourable orders from
the Court. It is on the basis of the aforesaid findings of the Committee
that it was clear that a false statement had been made by the College on
the basis of completely fabricated documents. The facts of this case
are very far from the facts of the present case as there are no fabricated    D
documents in the present case nor has there been a detailed enquiry by
an independent high level committee going into facts. This case is,
therefore, distinguishable from the facts of the present case.
       13. The case next cited by learned counsel for the respondent
No.1 is State of Goa vs. Jose Maria Albert Vales alias Robert Vales,          E
(2018) 11 SCC 659 in which the learned counsel relied, in particular,
upon para 34. Para 34 of this judgment, in turn, relied upon the celebrated
judgment of M.S. Sherif vs. State of Madras, AIR 1954 SC 397, and
ultimately concluded that as the High Court in that case had scrutinised
the evidence “minutely” and had disclosed ample materials on which a
judicial mind could reasonably reach the conclusion that further              F
investigation was necessary in a Section 340 proceeding, held that the
Section 340 proceeding must, therefore, go on. As has been stated in
the facts of the present case, the High Court has not scrutinised any
evidence as there was none to scrutinise. Further, all that the High
Court has seen is a preliminary investigation report, and that too by a       G
police officer, together with a High Court order granting anticipatory
bail, none of which can be said to be unimpeachable evidence against
which it can clearly be stated that a prima facie case of perjury can be
said to have been made out. This judgment also does not further the
respondent’s case. The respondent then relied upon Perumal vs. Janaki,
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410             SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A     (2014) 5 SCC 377 and para 20, in particular, to state that the High Courts
      not only have the authority to exercise such jurisdiction under Section
      195 but also an obligation to exercise such power in appropriate cases.
      This proposition is unexceptionable. We have, however, found that the
      present is not such an appropriate case.
B           14. Learned counsel then relied upon a Delhi High Court judgment
      reported as H.S. Bedi vs. National Highway Authority of India, 2015
      SCC OnLine Del 9524 which states in some detail the problems faced
      with present day courts and the number of false affidavits that are filed
      before them. This again has very little application, as we have seen
      above, to the facts of the present case.
C
              15. The arguments of learned counsel appearing on behalf of the
      appellant that the High Court has not satisfied itself that it is expedient in
      the interest of justice to proceed with the matter does not appear to be
      correct. Such finding is recorded. However, we have found otherwise
      that it ought not to have so proceeded. Equally, we are not impressed by
D     the argument by the appellant’s counsel on suppression of the Sessions
      Court order.
            16. In the result, the appeal is allowed and the impugned order of
      the High Court is set aside.

E
      Divya Pandey                                                    Appeal allowed.




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