*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ TEST.CAS.No.19/2004

Reserved on : 1st June, 2010

Date of Decision : 18th November, 2010

%
SANJEEV KUMAR MITTAL ..... Petitioner
Through : None.

versus

THE STATE ..... Respondents

Through : Mr. Sanjeev Mahajan, Adv.
for R-2.
Dr. Arun Mohan, Sr. Adv. as
amicus curiae.
CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether Reporters of Local papers may YES

be allowed to see the Judgment?

2. To be referred to the Reporter or not? YES

3. Whether the judgment should be YES

reported in the Digest?

JUDGMENT

Cr.M(M)No.6721/2010

1. Respondent No.2 has filed this application under Section

340 of the Code of Criminal procedure for holding an inquiry

and to make a complaint to the concerned Magistrate against

the petitioner under Sections 193, 196, 199 and 200 of the

Indian Penal Code. This case demonstrates the extent and type

of malaise which clogs the wheels of the justice delivery

system. It is an instance of how litigants make false averments

of facts in the pleadings and raise untenable contentions with

impunity. Thereafter litigation, on controversies supposedly

arising out of these false averments are dragged on for years in

Test Cas.No.19/2004 Page 1 of 65

the hope that the other side will succumb to buy peace. If the

other side does not so ‗settle‘, in the end, he is hardly

compensated and remains a loser. There is little fear of law in

the minds of the unscrupulous.

2. Background Facts

2.1 The background facts of this case as stated herein

(except where they relate to the record of this suit) are

based on the objections and submissions of respondent

No.2 and investigations by the police in relation to an

earlier FIR, and are therefore not to be taken as final

findings of this Court.

2.2 Ram Pyari, widow of Late Shiv Shankar was issueless. She

had a brother, Rajinder Nath and a nephew (brother‘s

son), named, Dr. (Col.) Kotu Kumar Phull who is

respondent No.2 in these proceedings. It appears that she

treated respondent No.2 as her own son.

2.3. Ram Pyari owned property bearing No.D-50, Greater

Kailash Enclave-II, New Delhi measuring 300 sq.yrds.

where she lived.

2.4. Ram Pyari expired on 31st August, 2002 leaving behind

duly registered Will dated 3rd May, 1999 registered with

Sub Registrar, Hauz Khas, New Delhi as document 582 in

Additional Book No.-III, Volume No.9 on pages 185 and

186 on 3rd May, 1999, whereby she bequeathed the

aforesaid property to her nephew Dr. (Col.) Kotu Kumar

Phull, respondent No.2. This Will bears the photograph

Test Cas.No.19/2004 Page 2 of 65

 and thumb impression of the deceased in addition to her

signatures.

2.5. On 31st October, 2003, respondent No.2 applied for

mutation of the aforesaid property to DDA on the basis of

the Will dated 3rd May, 1999 in pursuance to which DDA

carried out the mutation on 12th December, 2003.

Thereafter, on 27th January, 2004, respondent No.2

applied for conversion of the said property from leasehold

to freehold. At this stage, DDA received a letter dated

20th February, 2004 from the petitioner stating that he

had purchased the subject property from Late Ram Pyari

in 1998 through Agreement to Sell, Will and GPA. The

contents of the said letter are reproduced hereunder:-

―I like to inform you that I had been purchased

above said property from Smt. Ram Pyari w/o late
Shri Shiv Kumar r/o D-50, Greater Kailash Enclave-
II in 1998 through Agreement to Sell and also
after some time the allottee had given all
document, include her Will, G.P.A. and DDA
documents in my name through sub-registrar
office.‖

2.6. On 12th March, 2004, the petitioner also published a

public notice in the newspaper to the effect that Late Ram

Pyari has executed a Memorandum of Understanding and

a Will in favour of the petitioner with respect to the

subject property. Respondent No.2 was in US at that time

and he received a phone call from India intimating him

about the aforesaid public notice whereupon he sent a

Test Cas.No.19/2004 Page 3 of 65

 complaint to Delhi Police through e-mail on 21st March,

2004.

2.7. Apprehending registration of FIR, on 12th April, 2004, i.e.,

three weeks after the complaint to the police, the

petitioner filed the petition for probate before this Court

on the basis of the Will and Memorandum of

Understanding (MOU), both dated 11th May, 1999.

2.8. On 19th April, 2004, the police registered FIR No.95/2004,

PS Chitranjan Park, New Delhi against the petitioner. The

petitioner applied for anticipatory bail on the ground that

he has already filed the probate petition before this Court

and vide order dated 12th January, 2004, the petitioner

was granted anticipatory bail by this Court.

2.9. The Will dated 11th May, 1999 set up by the petitioner as

well as the registered Will dated 3rd May, 1999 in favour

of respondent No.2 was sent by the police to FSL. Vide

report dated 27th December, 2005, FSL opined that the

Will and MOU set up by the petitioner were forged and the

Will dated 3rd May, 1999 in favour of respondent No.2

was genuine. The FSL report is Annexure-B (Colly.) along

with I.A.No.7298/2007.

2.10. The police filed a chargesheet against the petitioner on

15th May, 2007. The supplementary chargesheet was

filed by the police on 29th March, 2008 and the case is

now pending before the concerned Metropolitan

Magistrate, New Delhi. Copy of the chargesheet is

Test Cas.No.19/2004 Page 4 of 65

 Annexure-B (Colly.) along with I.A.No.7298/2007 whereas

the supplementary chargesheet is Annexure-R2 to this

application.

2.11. The chargesheet filed by the Economic Offences Wing

records that the petitioner was a habitual cheat who had

been implicated in two other criminal cases of cheating

pending trial bearing No.FIR No.253/2001 and FIR

No.518/2000, PS Vasant Kunj in which Non Resident

Indians (NRIs) were the victims. It is further recorded that

the petitioner did not cooperate with the investigation.

According to police, the petitioner‘s address mentioned in

the petition is fake. The addresses of the witnesses on the

Will dated 11th May, 1999 are also incorrect.

3. The Petition, its Pendency and dismissal

3.1. The petition for grant of probate filed by the petitioner,

Sanjeev Kumar Mittal in respect of the estate of Late Ram

Pyari filed in this Court on 12th April, 2004 was registered

as Testamentary Case No.19/2004.

3.2. The aforesaid petition was based on an unregistered Will

dated 11th May, 1999 propounded by Sanjeev Kumar

Mittal purporting to be of Late Ram Pyari. The petition

was duly signed and verified by Sanjeev Kumar Mittal and

was supported by his affidavit. The petition was

accompanied by the affidavit of Rajat Kumar who

deposed that the Will was executed in his presence.

Test Cas.No.19/2004 Page 5 of 65

3.3. The petition was also accompanied by the list of

properties and the affidavit of the value of the assets. The

alleged original Will and original MOU, both dated 11th

May, 1999 were filed along with the petition.

3.4. On 29th April, 2004, the petition was adjourned to 23rd

July, 2004. On 30th April, 2004, the petitioner filed

I.A.No.2934/2004 to prepone the date (possibly because

police investigation was in progress). By order dated 7 th

May, 2004, the preponement was allowed and the case

was taken up on the same day and an ex-parte order was

passed restraining respondent No.2 (nephew and legatee

in the prior Will) from dealing with the subject property.

3.5. Respondent No.2 filed the objections dated 23rd

September, 2004 to the probate petition on various

grounds inter alia:-

3.5.1. The alleged Will and MOU are forged and fabricated.

3.5.2. The petitioner was an absolute stranger to the

testator‘s family.

3.5.3. The petitioner did not even attend the cremation of

Late Ram Pyari and never tried to contact
respondent No.2 when he was in India after the
death of Ram Pyari.

3.5.4. No member of the family or neighbours of Late Ram

Pyari had ever seen the petitioner or even remotely
heard about him. It is highly improbable that Late
Ram Pyari would execute the Will in favour of the
petitioner whom she had never met.

3.5.5. The police has registered FIR No.95/2004 against

the petitioner who has obtained bail from this Court
on the ground of the pendency of the probate
petition.

Test Cas.No.19/2004 Page 6 of 65

3.5.6. The petitioner is a habitual criminal having 40-50
criminal cases pending against him and few cases
are exactly of the same nature wherein the
petitioner has tried to misappropriate the properties
on the basis of fake and fictitious Wills. The
petitioner keeps an eye on valuable properties
which are bequeathed to NRIs by way of Wills and
attempts are made to misappropriate such
properties.

3.5.7. FIR Nos.518/2000 and 253/2001, P.S. Vasant Kunj

have been registered against the petitioner on
similar charges on embezzlement of properties
located in Vasant Kunj based on fabricated and
fictitious Wills.

3.5.8. The petitioner was a resident of Hapur, UP and the

address mentioned in the Will and the probate
petition, namely, 1219, Katra Satya Narain, Chandini
Chowk, Delihi was false.

3.5.9. The statements made in the alleged Will and MOU,

both dated 11th May, 1999 are false. It was stated
that Late Ram Pyari had no relatives except
respondent No.2 whereas she had many relatives
including her real brother, Rajinder Nath Phull
residing at East Patel Nagar, Delhi whom she
frequently visited.

3.5.10. Late Ram Pyari had no issue and therefore, she had
been treating respondent No.2 (brother‘s son) as
her own son since his birth.

3.5.11. Respondent No.2 was a NRI and he worked with

United States Army as Colonel prior to taking early
retirement in April, 2003. Respondent No.2 had
been visiting India from time to time to take care of
Late Ram Pyari. Rajinder Nath Phull (father of
respondent No.2 and brother of Late Ram Pyari) was
staying at East Patel Nagar, Delhi and was also
taking care and providing all sort of help to Late
Ram Pyari who used to regularly visit her brother
and stay there.

3.5.12. All the bank accounts of Late Ram Pyari were in joint
names of respondent No.2, his wife and son. Late
Ram Pyari also nominated respondent No.2, his wife
and son in the records of the cooperative society in
respect of the suit property. The alleged Will dated
11th May, 1999 was executed within one week of the
prior registered Will dated 3rd May, 1999.

Test Cas.No.19/2004 Page 7 of 65

3.5.13. Respondent No.2 took retirement from United States
Army in April, 2003 and returned back to India and
stayed here from August, 2003 to February, 2004
and got the suit property mutated in his name in
December, 2003 and also discussed the potential
sale of the suit property for which he shared the title
documents including copy of the registered Will with
the potential buyers. It appears that the petitioner
obtained the copy of the registered Will bearing the
signatures of Late Ram Pyari and forged the Will
dated 11th May, 1999.

3.5.14. The statement made in the alleged Will dated 11th

May, 1999 that Late Ram Pyari had not been
keeping good health and was at the fag end of her
life was also false as she was keeping good health at
that time and she went to Japan in the month of
June, 1999 to stay with respondent No.2 who was
serving with United States Army and was posted at
Japan at that time. Late Ram Pyari stayed with
respondent No.2 in Japan for nearly nine months
from June, 1999 till March, 2000 and again joined
respondent No.2 in United States from March, 2001
to October, 2001. In March, 2001, Late Ram Pyari
had injured her back before traveling to United
States of America but despite that she undertook
twenty hour journey primarily because of the love
and affection for respondent No.2 and her faith that
respondent No.2 would get her better treatment.
Between May, 1985 and October, 2001, Late Ram
Pyari spent nearly 40 months with respondent No.2
in United States, Japan and Germany.

3.5.15. The petitioner was a dreaded criminal and targeted

the properties of NRIs with the same modus
operandi.

3.5.16. Along with the aforesaid objections, respondent

No.2 placed on record the following documents:-

(i) Copy of the registered Will dated 3rd May,

1999.

(ii) Copy of the mutation dated 12th December,

2003 by DDA.

(iii) Copy of the passport of Late Ram Pyari

indicating the journeys undertaken by her.

(iv) Copy of the FIR Nos.95/2004 by the police

against the petitioner.

Test Cas.No.19/2004 Page 8 of 65

3.6. The petitioner did not file the rejoinder to the objections

filed by respondent No.2 despite number of opportunities

granted on 3rd November, 2004, 8th February, 2005 and

9th May, 2005.

3.7. On 18th January, 2005, respondent No.2 placed on record

the original registered Will dated 3rd May, 1999.

3.8. On 4th December, 2007, respondent No.2 placed on

record the chargesheets filed against the petitioner in FIR

Nos.253/2001 and 518/2000.

3.9. The Economic Offences Wing, Crime Branch, Delhi Police

filed two applications bearing I.A.Nos.7564/2004 and

4670/2005 seeking permission of this Court to take the

photographs of the original Will dated 3rd May, 1999, MOU

dated 11th May, 1999 and the Will dated 11th May, 1999

and to take certified copies of the said documents for

seeking an expert opinion. Both these applications were

allowed by this Court vide orders dated 10th November,

2004 and 1st August, 2005 and the Investigating Officer of

the Police was permitted to take the photographs of the

said documents.

3.10. On 27th December, 2005, the Forensic Science Laboratory

(FSL) submitted a report to the Economic Offences Wing,

Crime Branch, Delhi Police in which they opined that the

Will and MOU, both dated 11th May, 1999, propounded by

the petitioner does not bear the signature of Late Ram

Pyari and were forged. It was further opined that the

Test Cas.No.19/2004 Page 9 of 65

 registered Will dated 3rd May, 1999 of Late Ram Pyari in

favour of respondent No.2 is a genuine document. The

copy of the report of the FSL was placed on record by

respondent No.2 on 2nd July, 2007 along with

I.A.No.7298/2007.

3.11. On 15th May, 2007, the Economic Offences Wing, Crime

Branch, Delhi Police filed the chargesheet against the

petitioner under Sections 420, 467, 468 and 471 of the

Indian Penal Code. It was observed in the chargesheet

that the petitioner was a habitual/professional cheat

involved in two other cases bearing FIR Nos.253/2001 and

518/2000 in which also NRIs were victims like the present

case.

3.12. On 29th March, 2008, the police filed the supplementary

chargesheet in which it was stated that the address of the

petitioner given in the alleged Will, namely, 1219, Katra

Satya Narayan, Chandini Chowk, Delhi was fake. It was

further stated that the address of the witness Rajat

Kumar mentioned in the Will was also fake. The copy of

the supplementary chargesheet was filed by respondent

No.2 along with Cr(M)No.6721/2010.

3.13. On 25th March, 2009, the issues were framed and the

petitioner was directed to file list of witnesses within two

weeks and evidence by way of affidavit within four weeks

and the case was listed for fixing the date of cross-

Test Cas.No.19/2004 Page 10 of 65

 examination of the petitioner‘s witnesses on 5th May,

2009.

3.14. On 5th May, 2009, the petitioner sought further time to file

the evidence by way of affidavit whereupon last

opportunity was granted to the petitioner. The petitioner

did not file the affidavit and further opportunity was

granted on 10th September, 2009 and 11th January, 2010.

The petitioner filed the list of witnesses on 11th January,

2010 but no evidence by way of affidavit was filed. The

names of six witnesses in the list are petitioner himself,

Rajat Kumar, Ashok, Jagmeet Singh Virk, Rajesh Goel and

Rajiv Suri

3.15. On 5th April, 2010, the petitioner was directed to file his

affidavit as well as affidavits of the witnesses of the Will

within one week and produce the petitioner and the two

witnesses of the Will for cross-examination on 27th April,

2010. However, the needful was not done whereupon one

more opportunity was granted to the petitioner on 27th

April, 2010 subject to the cost of `25,000/- and the case

was fixed for 11th May, 2010.

3.16. The petitioner stopped appearing on 11th May, 2010 and

there was no appearance on behalf of the petitioner on

14th May, 2010, 17th May, 2010 and 18th May, 2010.

3.17. On 18th May, 2010, respondent No.2 filed an application in

Court under Section 340 of the Code of Criminal

Procedure for prosecution of the petitioner under Sections

Test Cas.No.19/2004 Page 11 of 65

 193, 196, 199 and 200 of the Indian Penal Code.

Considering the non-appearance of the petitioner to be

deliberate and intentional, the Testamentary Case

No.19/2004 was dismissed on 18th May, 2010 for non-

prosecution of evidence as well as for default of

appearance with cost of `2,00,000/- and the injunction

orders dated 7th May, 2004 and 25th March, 2009 were

vacated and the application under Section 340 of the

Code of Criminal Procedure was kept for consideration.

3.18. Considering the serious offenses against administration

of justice, Dr. Arun Mohan, Senior Advocate was

appointed as amicus curiae. The learned amicus curiae

and the learned counsel for respondent No.2 were heard

at length on 26th May, 2010 and 1st June, 2010 when the

matter was reserved for order.

3.19. On 3rd July, 2010, the counsel for the petitioner inspected

the Court record.

4. Application under Section 340 of the Code of

Criminal Procedure

4.1. Respondent No.2 has filed this application for prosecution

of the petitioner under Sections 193, 196, 199 and 200 of

the Indian Penal Code on the ground that the petitioner

has deliberately and willfully made absolutely false

statements on oath in the petition as well as the affidavit

to deprive respondent No.2 of the title of the property in

question and has sought probate of a forged Will.

Test Cas.No.19/2004 Page 12 of 65

4.2. It is submitted that the petitioner has forged the Will and

MOU, both dated 11th May, 1999, and has filed the

present petition on the basis of forged Will and MOU. It is

submitted that the petitioner has played fraud upon the

Court and if the action is not taken against him, such

persons would be encouraged to file false cases in the

Court.

4.3. The learned amicus curiae submits that the offences

against administration of justice and criminal contempt of

Court are made out and the complaint be filed before the

concerned Magistrate for having filed the petition

containing false averments and based on forged

documents. The learned amicus curiae, Dr. Arun Mohan

has also made detailed submissions on the procedure for

conducting the inquiry and has also cited several

decisions.

5. Facts which lead to the conclusion

5.1. This court is of the prima facie view on the basis of the

following facts that the propounded Will is not genuine

and false averments have been made in the petition for

grant of probate:-

5.1.1. The petitioner was not related to the deceased Late

Ram Pyari. The petitioner was not seen by any
relative of the deceased in her lifetime. The
petitioner was not even present at the time of
cremation of the deceased. There was also no
communication by the petitioner for a period of two
years after the death of Late Ram Pyari and no claim
to the property was made during the said period.

Test Cas.No.19/2004 Page 13 of 65

5.1.2. The addresses of the petitioner as well as that of the
witnesses to the Will are fake as per the
investigation by the police. The identity of the
witnesses of the Will is also not established nor are
they traceable by the police.

5.1.3. The signatures of the deceased on the Will have

been found to be forged by the Central Forensic
Science Laboratory.

5.1.4. The petitioner is involved in two other cases of

cheating in which also NRIs are the victims like in
the present case. The details of the two cases are
given in the chargesheet filed by the police.

5.1.5. In the petition for probate, the petitioner has

concealed the letter dated 20th February, 2004
(reproduced in para 2.5.) written to Delhi
Development Authority in which he claimed the
ownership over the subject property on the basis of
Agreement to Sell, GPA, Will, etc.

5.1.6. In the Will propounded by the petitioner, it is stated

that the petitioner took care of the deceased during
the fag end of her life. However, no material or
evidence was placed on record by the petitioner in
this regard despite number of opportunities granted.

5.1.7. The propounded Will does not specifically

acknowledge the existence of the prior registered
Will.

5.1.8. The deceased remained alive for three years after

the propounded Will but did not register the alleged
Will.

5.1.9. As per the propounded Will, 50% of the property had

to be donated to different religious trusts which
have not been specified.

5.1.10. The petitioner pursued the petition for six long years
and then vanished. No reply was filed to the
objections of respondent No.2 and no evidence was
placed on record despite number of opportunities
granted. The petitioner is still following up these
proceedings having inspected the Court record as
late as on 3rd July, 2010.

5.2. On these facts and events, this Court is of the prima facie

view that the petitioner is liable for being prosecuted for

Test Cas.No.19/2004 Page 14 of 65

 the offenses committed by him. However, learned amicus

curiae submits that an inquiry be conducted through the

police before final orders are passed. The learned amicus

curiae has made detailed submissions in this regard

which are recorded in the succeeding paras.

6. Litigation in our courts

6.1. Inasmuch as the facts of this case are demonstrative and

this Court cannot be oblivious to the problems afflicting

the judicial system, I shall now examine certain general

issues on how litigation with false claims is filed, or false

defences are put forward, and then continues to remain

pending, consuming the Court‘s time and resources. The

result is that courts are overloaded and there is delay in

disposal.

6.2. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the

Hon‘ble Supreme Court noted:

―For many centuries, Indian society cherished two

basic values of life i.e. ‗Satya‘ (truth) and ‗Ahimsa‘
(non-violence). Mahavir, Gautam Buddha and
Mahatma Gandhi guided the people to ingrain
these values in their daily life. Truth constituted an
integral part of the justice-delivery system which
was in vogue in pre-Independence era and the
people used to feel proud to tell truth in the courts
irrespective of the consequences. However, post-
Independence period has seen drastic changes in
our value system. The materialism has over-
shadowed the old ethos and the quest for personal
gain has become so intense that those involved in
litigation do not hesitate to take shelter of
falsehood, misrepresentation and suppression of
facts in the court proceedings. In the last 40 years,
a new creed of litigants has cropped up. Those who
belong to this creed do not have any respect for
truth. They shamelessly resort to falsehood and

Test Cas.No.19/2004 Page 15 of 65

 unethical means for achieving their goals. In order
to meet the challenge posed by this new creed of
litigants, the courts have, from time to time,
evolved new rules and it is now well established
that a litigant, who attempts to pollute the stream
of justice or who touches the pure fountain of
justice with tainted hands, is not entitled to any
relief, interim or final.‖

6.3. In Padmawati and Ors v. Harijan Sewak Sangh, 154

(2008) DLT 411, the learned Single Judge of this Court
(S.N. Dhingra, J.) noted as under:

―6. The case at hand shows that frivolous

defences and frivolous litigation is a calculated
venture involving no risks situation. You have only
to engage professionals to prolong the litigation so
as to deprive the rights of a person and enjoy the
fruits of illegalities. I consider that in such cases
where Court finds that using the Courts as a tool, a
litigant has perpetuated illegalities or has
perpetuated an illegal possession, the Court must
impose costs on such litigants which should be
equal to the benefits derived by the litigant and
harm and deprivation suffered by the rightful
person so as to check the frivolous litigation and
prevent the people from reaping a rich harvest of
illegal acts through the Courts. One of the aim of
every judicial system has to be to discourage
unjust enrichment using Courts as a tool. The costs
imposed by the Courts must in all cases should be
the real costs equal to deprivation suffered by the
rightful person.‖
xxxxxx

―9. Before parting with this case, I consider it

necessary to pen down that one of the reasons for
over-flowing of court dockets is the frivolous
litigation in which the Courts are engaged by the
litigants and which is dragged as long as possible.
Even if these litigants ultimately loose the lis, they
become the real victors and have the last laugh.
This class of people who perpetuate illegal acts by
obtaining stays and injunctions from the Courts
must be made to pay the sufferer not only the
entire illegal gains made by them as costs to the
person deprived of his right and also must be
burdened with exemplary costs. Faith of people in

Test Cas.No.19/2004 Page 16 of 65

 judiciary can only be sustained if the persons on
the right side of the law do not feel that even if
they keep fighting for justice in the Court and
ultimately win, they would turn out to be a fool
since winning a case after 20 or 30 years would
make wrong doer as real gainer, who had reaped
the benefits for all those years. Thus, it becomes
the duty of the Courts to see that such wrong
doers are discouraged at every step and even if
they succeed in prolonging the litigation due to
their money power, ultimately they must suffer the
costs of all these years long litigation. Despite
settled legal positions, the obvious wrong doers,
use one after another tier of judicial review
mechanism as a gamble, knowing fully well that
dice is always loaded in their favour, since even if
they lose, the time gained is the real gain. This
situation must be redeemed by the Courts.‖

The Court imposed costs of `15.1 lakhs. Against this,

Special Leave to Appeal (Civil) No 29197/2008 was

preferred to the Supreme Court. On 19.03.2010, the

Hon‘ble Supreme Court passed the following order:

―We have heard learned counsel appearing for the

parties. We find no ground to interfere with the
well-considered judgment passed by the High
Court. The Special Leave Petition is, accordingly,
dismissed.‖

6.4. I agree with the findings by the learned Judge in

Padmawati’s case (supra) and I would wish to add a few

words. There is another feature which has been observed

and it is of unscrupulous persons filing false claims or

defences with a view that the other person would get

tired and would then agree to compromise with him by

giving up some right or paying some money. If the other

party is not able to continue contesting the case or the

Court by reason of falsehood falls into an error, the wrong

Test Cas.No.19/2004 Page 17 of 65

 succeeds. Many times, the other party compromises, or at

other times, he may continue to fight it out. But as far as

the party in the wrong is concerned, as this Court noted in

Padmawati’s case (supra), even if these litigants

ultimately lose the lis, they become the real victors and

have the last laugh.

6.5. Padmawati’s case (supra) was one where the

wrongdoer was holding up delivery of possession. The

present case, another species of the same genus, is

where a party puts forward a false claim in order to

entangle someone else‘s property in the hope that he

can, with court delays and the needs of the other, one

day, extract money for withdrawing the claim. The

manner in which the case has been presented, and

proceeded with, gives a clear impression that it is of this

type.

6.6. If there is falsehood in the pleadings (plaint, written

statement or replication), the task of the Court is also

multiplied and a lis that could be decided in a short time,

then takes several years. It is the legal duty of every

party to state in the pleadings the true facts and if they

do not, they must suffer the consequences and the Court

should not hold back from taking action.

Test Cas.No.19/2004 Page 18 of 65

6.7. A similar sentiment had been expressed by the Karnataka
High Court in A. Hiriyanna Gowda v. State of
Karnataka, 1998 Cri.L.J. 4756:

―1. The present application is filed under Section

340, Cr. P.C. and undoubtedly involves a power
that the Courts have been seldom exercising. It
has unfortunately become the order of the day, for
false statements to be made in the course of
judicial proceedings even on oath and attempts
made to substantiate these false statements
through affidavits or fabricated documents. It is
very sad when this happens because the real
backbone of the working of the judicial system is
based on the element of trust and confidence and
the purpose of obtaining a statement on oath from
the parties or written pleadings in order to arrive
at a correct decision after evaluating the
respective positions. In all matters of fact
therefore, it is not only a question of ethics, but an
inflexible requirement of law that every statement
made must be true to the extent that it must be
verified and correct to the knowledge of the person
making it. When a client instructs his learned
Advocate to draft the pleadings, the basic
responsibility lies on the clients because the
Advocate being an Officer of the Court acts
entirely on the instructions given to him, though
the lawyer will not be immune from even a
prosecution. If the situation is uncertain it is for his
client to inform his learned Advocate and
consequently if false statements are made in the
pleadings the responsibility will devolve wholly and
completely on the party on whose behalf those
statements are made.
2. It has unfortunately become common place for
the pleadings to be taken very lightly and for
nothing but false and incorrect statements to be
made in the course of judicial proceedings, for
fabricated documents to be produced and even in
cases where this comes to the light of the Court
the party seems to get away because the Courts
do not take necessary counter-action. The
disastrous result of such leniency or indulgence is
that it sends out wrong signals. It creates almost a
licence for litigants and their lawyers to indulge in
such serious malpractices because of the
confidence that no action will result. To my mind,

Test Cas.No.19/2004 Page 19 of 65

 therefore, the fact that the petitioner has pressed
in this application requires to be commended
because it is a matter of propriety and it is very
necessary at least in a few glaring cases that an
example be made of persons who are indulging in
such malpractices which undermine the very
administration of justice dispensation system and
the working of the Courts. This will at least have a
deterrent effect on others.‖
―5. It is true that the power that is now being
exercised is seldom exercised, but I am firmly of
the view that in the interest of the purity of the
working the Courts that it is absolutely essential to
take such corrective action whenever an instance
of the present type arises.‖

6.8. A Division Bench of this court over two decades back in

Rajendra Jaina Towers (P) Ltd. v. Delhi
Development Authority 33 (1987) DLT 216 held as
under:

―27. All the statements in paragraph 11, to

which I have referred, were material for the
purpose of taking a decision in the case. As I have
tried to show, they were deliberately made and
carefully worded. Their object was to mislead and
overreach the court. The perjury was daring and
atrocious. Probably, Mr. Rajender Jain thought it
was worth taking the risk because the courts are
so reluctant to prosecute for perjury. That is the
general impression which has caused perjury to
become so rampant in our courts and resulted in
vexatious litigation. It is clearly expedient in the
interests of justice, that Mr. Rajender Jain be
prosecuted for the statements made in paragraph
11 of the petition, which he has incorporated by
reference in his affidavit.‖

The Court ordered the Registrar of this court to make a

complaint in writing against Mr. Rajender Jain, for having

committed offences under Sections 191, 192 and 193 of

the Indian Penal Code to the Magistrate having

jurisdiction.

Test Cas.No.19/2004 Page 20 of 65

6.9. If this Court were to go by a general impression, the

position has not improved but only worsened. It is time to

take appropriate action so that parties, when they file

their pleadings, do so with a sense of responsibility and if

averments therein, or any evidence in support, is found to

be false, the wrongdoer is not able to escape the

punishment prescribed by law.

6.10. The present case is a striking example of how the

petitioner could file the petition without any fear, keep it

pending, and disappear when he found the respondent

did not succumb and exposed the petitioner. The non-

appearance by the petitioner at this stage (27th April,

2010) appeared to be intentional and therefore a number

of opportunities were given (11th May, 2010, 14th May,

2010, 17th May, 2010 and 18th May, 2010), yet the

petitioner or his advocate did not appear. To have simply

dismissed the petition for default and not taken action

would be allowing them to escape. It has also been the

experience that when falsehood has stood exposed, the

party tenders an apology and the courts tend to let off

and take no action. Such an approach emboldens others

to do likewise.

6.11. On a related issue, in South Eastern Coalfields Ltd. v.

State of M.P. (2003) 8 SCC 648 : AIR 2003 SC 4482,
the Hon‘ble Supreme Court said:

―26 … In law, the term ‗restitution‘ is used in

three senses; (i) return or restoration of some
specific thing to its rightful owner or status; (ii)

Test Cas.No.19/2004 Page 21 of 65

 compensation for benefits derived from a wrong
done to another; and (iii) compensation or
reparation for the loss caused to another.‖

6.12. In fact, restitution, which includes compensation, and levy

of costs, is not sufficient where there is, in the pleadings

before the Court, falsehood, concealment or reliance

upon forged documents. There it also calls for triggering

into motion the penal laws, i.e., making of a complaint

under Section 340 Cr.P.C. The more important part is of

punishment to prevent, in the first instance, litigants from

making false averments before a court of law. While the

punishment prescribed by law is deterrent, the probability

of prosecution, and thereafter conviction, should also be

sufficient to deter such conduct.

6.13. A party, whether he is a petitioner or a respondent, or a

witness, has to respect the solemnity of the proceedings

in the court and he cannot play with the courts and

pollute the stream of justice. It is cases like this, with

false claims (or false defences) which load the courts,

cause delays, consume judicial time and bring a bad

name to the judicial system. This case is a sample where

the facts are glaring. Even if they were not so glaring,

once falsehood is apparent, to not take action would be

improper.

6.14. The judicial system has a right and a duty to protect itself

from such conduct by the litigants and to ensure that

where such conduct has taken place, the matter is

Test Cas.No.19/2004 Page 22 of 65

 investigated and reaches its logical conclusion and

depending on the finding which is returned in such

proceedings, appropriate punishment is meted out.

6.15. It is perhaps the general reluctance, as also noticed by

the Hon‘ble Supreme Court in Swaran Singh v. State of
Punjab, (2000) 5 SCC 668:

―36. …… Perjury has also become a way of life in

the law courts. A trial Judge knows that the witness
is telling a lie and is going back on his previous
statement, yet he does not wish to punish him or
even file a complaint against him. He is required to
sign the complaint himself which deters him from
filing the complaint.....‖

that has made the situation reach such levels where

pleadings contain false averments and parties make false

averments with impunity in the hope that in all probability

the opposite party will cough up something, and even if

he does not, in the end he will have the last laugh, for a

prosecution of perjury, although consciously committed

and persisted in, will have a probability of punishment as

good as nil. The gain far exceeds the risk.

6.16. In an effort to redeem the situation, not only realistic

costs and full compensation in favour of the winning party

against the wrongdoer are required, but, depending on

the gravity of the wrong, penal action against the

wrongdoers is also called for. Unless the judicial system

protects itself from such wrongdoing by taking

cognizance, directing prosecution, and punishing those

found guilty, it will be failing in its duty to render justice

to the citizens. Litigation caused by false claims and

Test Cas.No.19/2004 Page 23 of 65
 defences will come to be placed before the courts, load

the dockets and delay delivery of justice to those who are

genuinely in need of it. Let us then examine the

procedures in this regard.

7. Of false evidence and offences against public

justice

7.1. Chapter XI of the Indian Penal Code is titled ―Of false

evidence and offences against public justice system‖.

Section 191 defines giving of false evidence as an offence

while Section 193 prescribes the punishment. There are

also other provisions with regard to false evidence, but at

this stage, I need not go into details except that these

provisions are there to enable the Court to punish those

who make false averments in the pleadings or file forged

documents and thus serve to protect the stream of justice

from being soiled.

7.2. Section 340 Cr.P.C. provides the procedure which reads

as under:

―Section 340 - Procedure in cases mentioned in

section 195.—(1) When upon an application made
to it in this behalf or otherwise, any Court is of
opinion that it is expedient in the interests 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;

Test Cas.No.19/2004 Page 24 of 65

 (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 for
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.

(2) The power conferred on a Court by sub-section

(1) in respect of an offence may, in any case where
that Court has neither made a complaint under
subsection (1) in respect of that offence nor
rejected an application for the making of such
complaint, be exercised by the Court to which such
former Court is subordinate within the meaning of
sub-section (4) of section 195.

(3) A complaint made under this section shall be

signed,—

(a) where the Court making the complaint is a

High Court, by such officer of the Court as the
Court may appoint;
(b) in any other case, by the presiding officer of
the Court or by such officer of the Court as the
Court may authorise in writing in this behalf.
(4) In this section, ―Court‖ has the same meaning
as in section 195.‖

8. False averments in pleadings are sufficient to

attract Chapter XI of the Indian Penal Code

8.1. In the present case, the petitioner has filed a petition

containing false averments but he has not entered into

the witness box. The question arises whether a person

who has made false averments in pleadings but does not

appear in the witness box, has committed any offence.

8.2. Pleadings which are the foundation of the case, on the

basis of which the issues arise and the trial is held and

are required to be signed and verified. Order 6 Rule 15 of

the Code of Civil Procedure reads as under:

Test Cas.No.19/2004 Page 25 of 65

 ―Rule 15. Verification of pleadings. – (1) Save as
otherwise provided by any law for the time being
in force, every pleading shall be verified at the foot
by the party or by one of the parties pleading or by
some other person proved to the satisfaction of the
Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference

to the numbered paragraphs of the pleading, what
he verifies of his own knowledge and what he
verifies upon information received and believed to
be true.

(3) The verification shall be signed by the person

making it and shall state the date on which and
the place at which it was signed.

(4) The person verifying the pleading shall also

furnish an affidavit in support of his pleadings.‖

8.3. Section 282 of the Indian Succession Act [39 of 1925] also

provides for punishment for false averment in petition or

declaration. It reads as under:

―Section 282 - If any petition or declaration which is

hereby required to be verified contains any averment
which the person making the verification knows or
believes to be false, such person shall be deemed to
have committed an offence under Section 193 of the
Indian Penal Code, 1860 (45 of 1860).‖

8.4. The Code of Civil Procedure commentary by V.R. Manohar

and W.W. Chitaley, (Tenth Edition) Volume 3 at pp117

notes that the object of verifying a pleading is to fix, on

the party verifying, responsibility for the statements that

it contains. Further at pp 121, it notes that pleadings, far

from being mere formalities, are required by law to be

true. Verifications being made under the sanction of a

solemn declaration, a false verification will render the

Test Cas.No.19/2004 Page 26 of 65

 party verifying liable to a prosecution for an offence

under Sections 191 and 193, Indian Penal Code.

8.5. Similarly, in Code of Civil Procedure commentary by

Justice C.K. Thakker, at pp428 of Volume 3, it is stated:

Verification of pleading is a matter of great

importance as possessing security of being made
under the sanction of a solemn declaration. A
person making false verification will, hence, render
himself liable to prosecution for an offence
punishable under the Indian Penal Code.

8.6. The learned amicus curiae cited the following decisions:-

8.6.1. State of Punjab v. I.M. Lall, ILR 1975

Delhi 332-
―That the statutory provision for verification is to
fix responsibility on the party or person for
statements made in the pleadings and to prevent
false pleadings being recklessly filed or false
allegations being recklessly made.‖

8.6.2. Sapna Singh Pathania v. Jagdish Chander

Mehta, 75 (1998) DLT 725-
―21. The object of this Rule is to fix responsibility
for allegations made in the plaint on the persons
who verify and this is to ensure that false
allegations are not made freely and recklessly. …‖

8.6.3. Sri Shamrao Rukamanna Talwar v. Smt.

Suvarna, ILR 2008 Karnataka 1493-
―23. ....The object of signature and verification is
to fix upon the party the responsibility for the
statements and to affirm the guarantee of good
faith. …‖

8.6.4. Emperor v. Padam Singh, AIR 1930 Allahabad

490-
―12. It is contended by counsel for the opposite
party that a defendant is not legally bound either
by any express provision of law or in any other
way to file a written statement at all. That of
course must at once be conceded. But if he does
desire to file a written answer to the plaint, he is
by express provision of law bound to do something

Test Cas.No.19/2004 Page 27 of 65

 further. He is bound to attach the verification
which is called for by Order 6, Rule 15, and his
written statement is not, until that verification is
attached, a written statement in law at all and
could not be received for any purpose whatever.
When, therefore, filing a written statement he is
bound by express provision of law to verify the
facts alleged in that written statement as being
true either to his own knowledge or to the best of
his belief. It is contended that when the law
requires a defendant to verify his written
statement it does not necessarily require him to
tell the truth. This contention, in our view, is
manifestly untenable. Words have a certain
meaning and we have only to give them their plain
and ordinary meaning, in the absence of any
circumstances indicating that meaning is not
permissible. The ordinary dictionary meaning of
the word ‗verify‘ used in the present
circumstances is: "to confirm the truth or
truthfulness of‖. It was further contended on
behalf of the opposite party that the mere fact
that in cases under the Income-tax Act and
possibly other such Acts a false verification was
expressly to be declared to be punishable under
Section 177, I.P.C., or some other such section and
the absence of any such enactment in connexion
with Order 6, Rule 15, was sufficient to show that
a false verification in accordance with Order 6,
Rule 15 could be made with impunity.

13. In other words, we were asked to hold that

the legislature orders a defendant to declare that
his statements are true and, since it is further
emphasised that the same legislature passed all
the Acts, in the same breath says that it does not
care whether the statements are true or not and
that no penalty shall follow the making of a false
verification. It is manifest that such an argument
would be extremely dangerous. It is not possible
for one moment to know what was in the minds of
particular individuals when they were considering
whether it was necessary or whether it was merely
desirable or whether it was undesirable to add a
clause declaring under what section of the penal
law a person infringing the law should be
punishable. We confine ourselves, therefore, to
the simple question whether the facts of the case
come within Section 191. Here we find that there

Test Cas.No.19/2004 Page 28 of 65

 is an express provision of law requiring the
defendant to confirm the truth of the statements
made by him in the preceding clauses of his
written statement, and if he does so, knowing that
verification is false, he is declared by the
legislature in Section 191 itself to be giving false
evidence. Whatever may or may not be connoted
by the word ‗evidence‘ in other sections, there can
be no doubt about the meaning in Section 191 and
there can equally be no doubt that the words
‗gives false evidence‘ in Section 193 are used in
the same sense as the same words in Section 191,
and it has not of course been contended that if
Section 191 is applicable to the present case,
Section 193 is not applicable. We are, therefore, of
opinion that so far as the legal point is concerned
the trial Court was right in holding that an offence
had been committed under Section 193, I.P.C.‖

8.6.5. Raj Kumar Dhar v. Colonel A. Stuart Lewis, AIR

1958 Calcutta 104-
―3. …Verification of pleadings is an important
matter which may have very serious
consequences, as in case of false verification, the
person verifying may be liable to criminal
prosecution. The object of verification, as it has
been pointed out in decisions of courts, is to fix
responsibility on the party verifying and to prevent
false pleadings, being recklessly filed or false
allegations being recklessly made. It must have
some sanctity …‖

8.6.6. In re an attorney, AIR 1914 Calcutta 1924-

―… A verification is a matter of great importance:
Girdhari v. Kanhaiya Lal ILR [1892] 15 All 59 =
(1892) A.W.N. 235, and has been described by a
Full Bench of this Court as possessing the security
of being made under the sanction of a solemn
declaration for which the person making it would
be liable to the penalties attaching to the crime of
giving false evidence if the declaration were false
to his knowledge.‖

8.6.7. Dr. (Smt.) Shipra v. Shri Shanti Lal, AIR 1995

Rajasthan 50-
―7. Section 83 of the Act deals with the contents
of the election petition and states that an election
petition shall be signed by the petitioner and

Test Cas.No.19/2004 Page 29 of 65

 verified in a manner laid down in the Code of Civil
Procedure for the verification of the plaint. Order
6, Rule 15, C.P.C. deals with the verification of
pleadings and states that the person verifying it
shall specify, by reference to numbered
paragraphs of the pleadings, what he/she verifies
of his/her own knowledge and what is verified
upon the information received and believed to be
true. The object of verification is to test the
genuineness and authenticity of the averments
made in the election petition and to fix
responsibility for the allegations made on the
person who verifies it and to ensure that false
allegations are not made recklessly. A false
verification has, therefore, been made punishable
under Sections 191 and 193 of the Indian Penal
Code. …‖

8.7. Making false averment in the pleading pollutes the

stream of justice. It is an attempt at inviting the Court into

passing a wrong judgment and that is why it must be

treated as an offence.

8.8. Where a verification is specific and deliberately false,

there is nothing in law to prevent a person from being

proceeded for contempt. But it must be remembered that

the very essence of crimes of this kind is not how such

statements may injure this or that party to litigation but

how they may deceive and mislead the courts and thus

produce mischievous consequences to the administration

of justice. A person is under a legal obligation to verify

the allegations of fact made in the pleadings and if he

verifies falsely, he comes under the clutches of law.

8.9. Consequently, there cannot be any doubt that if a

statement or averment in a pleading is false, it falls within

the definition of offence under Section 191 of the Code

Test Cas.No.19/2004 Page 30 of 65

 (and other provisions). It is not necessary that a person

should have appeared in the witness box. The offence

stands committed and completed by the filing of such

pleading. There is need for the justice system to protect

itself from such wrongdoing so that it can do its task of

justice dispensation.

9. What constitutes the offence?

9.1. Inasmuch as on a complaint of Respondent No.2, a

prosecution of the Petitioner is pending before the

Metropolitan Magistrate, the question also arises as to

what constitutes the offence because it may be said that

since prosecution is pending, why should a second inquiry

or prosecution be called for. On the face, such a

contention appears attractive, but there are more

compelling reasons why the Court must take cognizance

and proceed as per law.

9.2. The learned amicus curiae, Dr. Arun Mohan has submitted

that the two offences are separate and are to be

prosecuted and tried separately. According to him, the

first offence was of forging the document and then using

it before the DDA in order to cause injury to the

Respondent No.2. It was carried out by and before 12th

March, 2004 when public notice was also published by

Sanjeev Kumar Mittal.

9.3. The complaint of 21st March, 2004 by Respondent No.2

was in relation to that offence. If the matter had rested

Test Cas.No.19/2004 Page 31 of 65

 there, it would have been one thing, but on 12th April,

2004, when the present petition containing false

averments and relying on forged documents (which were

also filed) was filed, a second offence stood committed.

That second offence was of: (1) making a false averment

in the petition duly verified and filing the same in court;

and (2) asking the Court for a judgment on the basis of

false averments and forged documents.

9.4. The learned amicus curiae submits that if a person

prepares a petition containing false averments, relying on

forged documents, and signs and verifies it, and then

comes to the Court, but on seeing the building, develops

cold feet and returns home, the second offence would not

have been committed. But when he presents these

papers at the filing counter, it is filing in court. The

moment they cross the window at the filing counter is

precisely the point of time when the second offence

stands committed.

9.5. In Iqbal Singh Marwah v. Meenakshi Marwah (2005)

4 SCC 370, the question before the Supreme Court was

when would the bar of Section 195(1)(b)(ii) CrPC be

attracted. Their Lordships held that the bar would be

attracted only when the offences enumerated in the said

provision have been committed with respect to a

document after it has been produced or given in evidence

in a proceeding in any court. Finding that the Will had

Test Cas.No.19/2004 Page 32 of 65

 been produced in the Court subsequently, they held that

the bar of Section 195(1)(b)(ii) CrPC does not apply.

9.6. The rationale will equally apply to a situation where, as

here, the complaint will be in respect of subsequent and

independent offences, i.e., filing before a court of law,

pleadings containing false averments and also filing of

documents that were forged as distinct from forgery at

home. It will also be contempt of Court.

10. Expedient in the interests of justice under Section

340 Cr. P.C.

10.1. When an inquiry for having committed an offence as

listed in Section 195 Cr.P.C. is proposed to be launched,

Section 340 Cr.P.C. provides for the procedure. One of the

requirements in sub-section (1) is that the ―court is of

opinion that it is expedient in the interests of

justice that …‖ When is it expedient in the interests of

justice? On this question, the following decisions were

cited by the learned amicus curiae:-

10.1.1. Mohd. Amjad Khan v. Jamia Millia Islamia, 55

(1994) DLT 463-
―6. Now coming to the show cause notice
issued by us to the petitioner as to why a
complaint be not filed against him as it
appeared to us that he committed an offence
punishable under section 193 Indian Penal
Code. In reply to this, the petitioner begs to
tender an unconditional apology for stating on
8 July 1994 that he did not receive any
communication. He says this wrong statement
was made unintentionally and without any
desire to obtain a favourable order by making
such a statement. He said that the letter dated
8 July 1994 was collected by him in the
Test Cas.No.19/2004 Page 33 of 65
 University around lunch time and he did not go
through the same because he was in the midst
of preparation for examination and went to the
library. We are unable to accept this
submission. This again does not appear to us
to be true when on the communication dated 8
July 1994 itself he has even noted the time of
his receipt by hand, and there was no
question, at that time, for the petitioner to
prepare for the examination as he had been
debarred from taking the examination. We
would reject his Explanation. We are of the
opinion that it is necessary in the interests of
justice that a complaint be filed against the
petitioner as mentioned aforesaid. We,
therefore, direct the Joint Registrar (Appellate)
of this Court to file a complaint in writing
against the petitioner for an offence under
section 193 IPC in the court of the Additional
Chief Metropolitan Magistrate, New Delhi.‖
10.1.2. Mohan Singh v. Amar Singh, (1998) 6 SCC 686-
―36. But the matter does not end there. We have
found that the records of the A.R.C. and the Rent
Tribunal have been tampered. We have also drawn
an inference that the visa alleged to have been
issued by the German Embassy on 26.06.1981 to
the tenant and the Immigration Stamp found
thereon are not genuine. Prima facie, the
circumstances indicate that the tenant had
committed the aforesaid offences. The tenant has
also made an attempt to hoodwink this Court and
succeed in his appeal. He was successful in getting
the Special Leave and an order staying
dispossession. Tampering with the record of
judicial proceedings and filing of false affidavit, in
a court of law has the tendency of causing
obstruction in the due course of justice. It
undermines and obstructs free flow of unsoiled
stream of justice and aims at striking a blow at the
rule of law. The stream of justice has to be kept
clear and pure and no one can be permitted to
take liberties with it by soiling its purity. Since, we
are prima facie satisfied that the tenant has filed
false affidavits and tampered with judicial record,
with a view to eradicate the evil of perjury, we
consider it appropriate to direct the Registrar of
this Court to file a complaint before the
appropriate court and set the criminal law in

Test Cas.No.19/2004 Page 34 of 65

 motion against the tenant, the appellant in this
case namely, Mohan Singh.‖
10.1.3. Re: Suo Moto Proceedings against Mr. R.
Karuppan, Advocate, (2001) 5 SCC 289-
―17. With the object of eradicating the evil of
perjury, we empower the Registrar General of this
Court to depute an officer of the rank of Deputy
Registrar or above of the Court to file a complaint
under Section 193 of the Indian Penal Code against
the respondent herein, before a Magistrate of
competent jurisdiction at Delhi. Such officer is
directed to file such complaint and take all steps
necessary for prosecuting the complaint.‖
10.1.4. IRCON International Limited v. Union of India,
108 (2003) DLT 656-
―19. In view of the foregoing discussions I am
satisfied that the documents and affidavit filed by
respondent No. 5 in this Court demonstrate that
his plea regarding his not being in India since 1983
is prima facie not correct. A Court is thus required
to ensure that the free flow of the unsoiled stream
of justice is not obstructed. Of late litigants have
tended to utter falsehoods with impunity as on
several occasions they have managed to get away
with such false statements owing to the
unnecessary indulgence and misplaced
generosity. False averments on oath not only
vitiate the probity of judicial proceedings but
considerable time is spent and expenses incurred
for truth to be unravelled. Thus if a dishonest
plaintiff secures and continues an interim order on
a false averment and a dishonest defendant
delays the proceedings by pleading a false
defense, then unless and until wilful lies are
viewed sternly and dealt with effectively, the
judicial system will suffer thereby harming the
honest litigant. Contumacious falsehoods by
unscrupulous litigants have been eating into the
vitals of our judicial system and ought to be put
down firmly. In the present case the respondent
No. 5 has continued to stand by his statements
and has in fact sought to justify his questioned
averments. …‖
―20 Considering all the facts and circumstances
discussed above, I am of the view that in the
present case it will be appropriate and the ends of
justice will be fully met upon a direction to the
Registrar General of this Court to file a complaint

Test Cas.No.19/2004 Page 35 of 65

 before the appropriate Court and set the criminal
law in motion against respondent No. 5 …‖
10.1.5. Goswamy Brij Kumar Jee v. Union of India
(UOI) 2007 (97) DRJ 223-
―32. … It appears to us that forged, interpolated
and fabricated copies have been filed in this Court
to obtain interim relief and then proceeded on to
get the final relief inter alias on the basis of the
said and other documents. Respondents were
restrained from altering the nature of the property
vide order dated 26.5.2000. At that time, the said
property was a plain ground after demolition of the
old structures. It appears that the Mr. Kailash Nath
Chaturvedi has committed offences narrated in
Clause 'b' Sub-section 1 of Section 195 of Cr.P.C.,
and prima facie, offences under Sections 196, 199,
463, 471 and other related Sections have been
committed by filing the said documents on the
court record.
33. We are of the opinion that it is expedient in
the interests of justice that an inquiry should be
made into the said offences (Section 340 Cr.P.C.)
and the criminal prosecution should proceed in
accordance with law. For this purpose we direct
the Registrar General to send the complaint with
the copies of the above mentioned four
documents (2 prima facie forged, interpolated and
fabricated copies + 2 correct copies) to the
Sessions Judge, Delhi, for further proceedings in
accordance with law. …‖
10.1.6. Lakshmi Singa Reddy v. Secretary, A.P. Public
Service Commission, 2001 (6) Andhra Law
Digest 1-
―22. We are, prima facie, of considered opinion
that by not producing entire file / all records
inspite of receiving ―Rule Nisi‖ and inspite of
direction to learned Standing Counsel for APPSC
the respondent committed contempt. We
therefore direct the Registry to initiate necessary
action for contempt against Secretary of APPSC.
23. After perusing the few papers produced
before us ―as file‖ and the counter-affidavit filed
by the respondents we are convinced that there
are attempts on the part of the respondents to
plead falsehood which is against public justice. In
India, offence of perjury is not enforced often. This
practice needs to be rectified as pointed out by

Test Cas.No.19/2004 Page 36 of 65

 the Supreme Court in Suo Motu Proceedings
against Mr. R. Kamppan. …‖
―25. We are bound by the observations made by
the Supreme Court in the above case. Effective
action for perjury is need of time. Therefore, we
direct the Registrar (Judicial) of High Court of
Judicature of Andhra Pradesh, Hyderabad to file a
complaint under Section 193 of Indian Penal Code
against the deponent who filed affidavit on behalf
of the APPSC, before the Magistrate competent to
take cognizance of the offence in Hyderabad.‖

10.2. A common thread that can be culled out from these

decisions is that perjury, which includes false averments

in pleadings, is an evil to eradicate which every effort

must be made. The reluctance of the courts to order

prosecution encourage parties to make false averments in

pleadings before the Court and produce forged

documents.

10.3. While restitution and costs as calculated, and ordered by

this court in Padmawati’s case (supra) (`15.10 lakhs)

will suffice for such wrongdoing as does not fall within the

definition of offences under Chapter XI (particularly

Sections 191, 192 and 193), where it (the wrongdoing)

does fall, it is the duty of the Court, except when it is not

expedient to do so in the interests of justice, to order an

inquiry under Section 340 Cr.P.C.

10.4 The gravity of the offence, the substantiality of the

offenders, the calculated manner in which the offence

appears to have been committed and pernicious influence

such conduct will have in the working of the Courts and

the very faith of the common man in Courts and the

Test Cas.No.19/2004 Page 37 of 65

 system of the administration of justice, all have been

reckoned in arriving at a conclusion that action under

Section 340 is fully justified.

10.5 In the present case, a deliberate and calculated

fabrication of documents has been prima facie made out.

It was not a case of inaction. Considerable time and

strain of brain had been involved in drafting and forging

the will with such meticulous hints and advice on

fabrication and the petition containing false statement on

oath and forged documents have been filed in this Court.

The petitioner has ventured to stab truth, so recklessly

and so seriously, that it should not go unnoticed by a

Court of law which works under the constitutional symbol

proclaiming to the world that Truth, and truth alone,

ultimately flourishes.

10.6 I have carefully considered the material on record and am

of the opinion that it is expedient in the interest of justice

that an inquiry be made into the offences alleged to have

been committed by the petitioner and others in relation to

the proceedings before this Court.

11. Preliminary Inquiry under Section 340 Cr.P.C.

11.1. Another question, one of procedure, is about a

preliminary inquiry. Section 340(1) Cr.P.C. uses the word

―such court may, after such preliminary inquiry, if

any, as it thinks necessary‖.

Test Cas.No.19/2004 Page 38 of 65

11.2. The learned amicus curiae, Dr. Arun Mohan has cited
Pritish v. State of Maharashtra, (2002) 1 SCC 253
where it was held:

―9. Reading of the sub-section makes it clear that

the hub of this provision is formation of an opinion
by the court (before which proceedings were to be
held) that it is expedient in the interests of justice
that an inquiry should be made into an offence
which appears to have been committed. In order to
form such opinion the court is empowered to hold
a preliminary inquiry. It is not peremptory that
such preliminary inquiry should be held. Even
without such preliminary inquiry the court can
form such an opinion when it appears to the court
that an offence has been committed in relation to
a proceeding in that court. It is important to notice
that even when the court forms such an opinion it
is not mandatory that the court shod make a
complaint. This sub-section has conferred a power
on the court to do so. It does not mean that the
court should, as a matter of course, make a
complaint. But once the court decides to do so,
then the court should make a finding to the effect
that on the fact situation it is expedient in the
interests of justice that the offence should further
be probed into. If the court finds it necessary to
conduct a preliminary inquiry to reach such a
finding it is always open to the court to do so,
though absence of any such preliminary inquiry
would not vitiate a finding reached by the court
regarding its opinion. It should again be
remembered that the preliminary inquiry
contemplated in the sub-section is not for finding
whether any particular person is guilty or not. Far
from that, the purpose of preliminary inquiry, even
if the court opts to conduct it, is only to decide
whether it is expedient in the interests of justice to
inquire into the offence which appears to have
been committed.‖

On the question whether notice to and hearing the person

against whom prosecution is sought to be launched, their

Lordships held:

―13. The scheme delineated above would

clearly show that there is no statutory requirement
Test Cas.No.19/2004 Page 39 of 65
 to afford an opportunity of hearing to the persons
against whom that court might file a complaint
before the magistrate for initiating prosecution
proceedings. …‖
―14. … But the mere fact that such an
appeal is provided, it is not a premise for
concluding that the court is under a legal
obligation to afford an opportunity (to the persons
against whom the complaint would be made) to be
heard prior to making the complaint. …‖
―15. Once the prosecution proceedings
commence the person against whom the
accusation is made has a legal right to be heard.
Such a legal protection is incorporated in the
scheme of the Code. Principles of natural justice
would not be hampered by not hearing the person
concerned at the stage of deciding whether such
person should be proceeded against or not.‖

11.3. The preliminary inquiry in the second part of Section 340

is not mandatory. The use of the words ‗if any‘ is clearly

indicative. This is so because situations can be such

where there is strong suspicion, but there is not sufficient

evidence to return a finding (although still prima facie)

that it appears to have been committed. And there can be

cases where there is sufficient material on record to

return such a finding. In the former case, preliminary

inquiry is necessary, in the latter case, it is not.

11.4. Further, the facts may be such that other evidence needs

to be reached and made available to the Court. Then,

other documents may be there which prove existence or

non-existence and there may also be other persons who

are involved. It is something which has to be seen from

the facts of a particular case.

Test Cas.No.19/2004 Page 40 of 65

11.5. If the facts are sufficient to return a finding that an

offence appears to have been committed and it is

expedient in the interests of justice to proceed to make a

complaint under Section 340 Cr.P.C., the Court need not

order a preliminary inquiry. But if they are not and there

is suspicion, albeit a strong one, the Court may order a

preliminary inquiry. For that purpose, it can direct the

State agency to investigate and file a report along with

such other evidence that they are able to gather.

11.6. Ordering of the preliminary inquiry also includes

investigation by a State agency where the nature is such

that a private party in civil proceedings could not possibly

gather and place before the Court those facts,

documents, etc. Many times, there can be suspicion,

strong suspicion, or even suspicion that borders on

conviction, and it is expedient in the interests of justice to

proceed to lodge a complaint, but there may be no

sufficient legal evidence on the record at that time to so

proceed.

11.7. This is not a case where it is mere forgery of the Will and

ought to be disposed of on a report by the expert

evidence of the document examiner. In order to reach to

the others involved and unearth more evidence, this

Court deems it necessary to order investigation by the

police as a part of preliminary inquiry.

Test Cas.No.19/2004 Page 41 of 65

12. Case law on ordering investigation by the Police

12.1. The next question is whether as part of the Preliminary

Inquiry under Section 340 Cr.P.C., an investigation by the

Police or any other State Agency can be ordered. On this

aspect too, the learned amicus curiae, Dr. Arun Mohan,

made detailed submissions and cited following

judgments:-

12.1.1. In Pushpa Devi Jatia v. M.L. Wadhavan,

Additional Secretary, Government of India, AIR
1987 SC 1156, the Hon‘ble Supreme Court while
dismissing SLP and Writ Petition on 19.12.1986 held:

―3. We have also heard learned

Counsel for the parties on the application
made by the Union Government under
Section 340 of the Cr.P.C., 1973 for
prosecution of the persons responsible
for forging the documents purporting to
be the alleged representation made by
the detenu under Section 8(b) of the
COFEPOSA on April 15, 1985 as, in fact,
no such representation was ever made,
and for making alleged interpolations in
the relevant records. We reserve our
orders thereon.
4. Accordingly, the Special Leave
Petition and the Writ Petition are
dismissed. The detailed reasons for the
Judgment and the consequential
directions, if any, shall follow.‖

12.1.2. In the same case, Pushpadevi M. Jatia v. M.L.

Wadhavan later on 29th April, 1987 and reported as
(1987) 3 SCC 367,’400 : AIR 1987 SC 1748, the
Hon‘ble Supreme Court observed:

―35. We feel fully persuaded to hold that

this is a fit case in which the detenu, his
wife (petitioner herein), Ashok Jain and all
other persons responsible for the
Test Cas.No.19/2004 Page 42 of 65
 fabrication of false evidence should be
prosecuted for the offence committed by
them. Nevertheless we wish to defer the
passing of the final order on the
application made under S.340 of the
Code of Criminal Procedure, 1973 by the
Union of India at this stage because of
the fact the Central Bureau of
Investigation is said to be engaged in
making a through investigation of the
matter so that suitable action could be
taken against all the perpetrators of the
fraudulent acts and the offences. As such
the launching of any prosecution against
the detenue and his set of people at this
stage forthwith may lead to a permanent
closure of the investigation resulting in
the Central Bureau of Investigation being
unable to unearth the full extent of the
conspiracy. Such a situation should not
come to pass because the manipulations
of the detenue and his agents on the one
hand and the connivance of staff in the
President‘s Secretariat on the other
cannot be treated as innocuous features
or mere coincidence and cannot,
therefore, be taken lightly or viewed
leniently. On the contrary they are
matters which have to be taken serious
note of and dealt with a high degree of
vigilance, care and concern.
Consequently, while making known our
opinion of the matter for action being
taken under S.340 of the Code of
Criminal Procedure we defer the passing
of final orders on the application under
S.340 till the investigation by the Central
Bureau of Investigation is completed. The
respondents are permitted to move the
Court for final orders in accordance with
our directions.‖

The order passed by Supreme Court three days later, i.e.,

on 1st May, 1987 (unreported), reads as under:

―We direct the Director the Central Bureau of

Investigation to take up the investigation into the
matter. If during the course of such investigation,

Test Cas.No.19/2004 Page 43 of 65

 the C.B.I requires inspection of the records of the
Supreme Court, the Registrar (Judicial) shall permit
such inspection as and when required.
The director of the investigation shall submit his
report to the Government of India, Ministry of
Home Affairs, New Delhi for necessary action.‖

Thereafter, on 20.07.1994, the Hon‘ble Supreme Court in

Criminal Miscellaneous Petition No.464 of 1986 in

WP (Criminal) 363 / 1986 ordered:

― … We thus order the Registrar General of this

court to prepare a complaint as expeditiously as
possible in the light of all concerned orders in
terms of Section 195 read with Section 340 of the
Criminal Procedure Code and file it before a
competent criminal court against the aforesaid six
persons. …‖

The Complaint was filed and registered as ―Supreme

Court of India v. Milap Chand Jagotra‖ Complaint

No. 58/1 of 1998.

12.1.3. Shabbir Hasan v. Emperor, AIR 1928

Allahabad 21-
―2. …Under S.476 {of the earlier Cr.P.C.} an
inquiry has to be made by the Civil Court. If
the civil Court so desires, an inquiry may be
ordered by the police, but in that case when
the police papers arrive the civil Court has to
determine whether it is necessary to take
action against particular persons under S.476.
A finding has to be recorded to the effect
against each individual person specifically. …‖

12.1.4. Gita Ram Kalsy v. Mathura Dass, AIR 1951

Punjab 369-
―3. … In the present case the matter has not
been referred to the Police with the object of
the Police instituting a prosecution if an
offence is found to have been committed by a
certain person or persons, but merely with the
object of finding out whether an offence has
been committed and by whom, with a view to

Test Cas.No.19/2004 Page 44 of 65

 the Magistrate taking further proceedings
under Section 476. In fact even if the Police did
discover that an offence had been committed
and established the identity of the culprit, they
could not take any further action, which could
only be taken by the learned Magistrate in
whose Court the case was pending. To my
mind, it would be absurd if the learned
Magistrate in this case were simply to record a
finding that prima facie a document in the
custody of the Court in connection with a case
had been tampered with and to forward a
complaint to some other Court and leave that
Court to make the investigation and discover
the identity of the culprit, and in fact the
section clearly only contemplates the
forwarding of a complaint against one or more
definite accused, who are either to he bound
down to appear in the other Court or else sent
in custody and obviously the Police are the
best persons to assist the learned Magistrate
in the preliminary enquiry in discovering when
and by whom the offence, if any, was
committed. … ‖

12.1.5. Manjit Kaur v. J.P. Sharma, order dated

8.12.1994 passed by a Division Bench of this Court
in FAO(OS)No.152/1994 arising out of Suit
No.3174/90 at (internal page 13)-

―If really the facts mentioned by the appellant in the

memorandum of appeal coupled with the other
circumstances are true, it appears to us that a prima
facie case of fraud not only on the appellant, but
also fraud on this Court has been played by the
plaintiff / respondent in this behalf. We have,
therefore, decided to order an effective
investigation into this issue. We do not consider it fit
to refer the inquiry to any other body except to
Director of Central Bureau of Investigation, who
should either conduct the inquiry himself or have it
conducted by a Senior Officer of the CBI. The said
authority will go into the entire matter and submit a
report in the case within three months from today.‖

12.1.6. In Shoba Samat v. Madan Lal Dua, order dated

25.05.1995 passed by a Division Bench of this Court
(D.P. Wadhwa and Dr.M.K. Sharma, JJ.) in Writ 4649
of 1994, court held that-

Test Cas.No.19/2004 Page 45 of 65

 ―We have heard learned counsel for the parties. To
some extent, we are of the view that various
offences have been committed and the matter
needs through investigation by the police. We
accordingly direct the D.C.P (Crime) to have the
matter investigated. Copies of our proceedings
dated 10th March 1995 and that of 18th April 1995 be
sent to him and so also copy of the writ petition
giving the names of the parties. Liberty is granted to
the police to take photo copies of the documents
from this file as well as from the file of the
Commercial Sub Judge which is lying in sealed cover
in the registry of this Court.‖

12.1.7. In Davendar Singh v. Subroto Ghosh, Order

dated 5.02.1996 passed by a Division Bench of this
Court (M.J. Rao, C.J and Dalveer Bhandari, J.) in
FAO(OS)No.52/1996, court held that–

―In view of the prima facie evidence arrived at by

the learned Judge, (which we shall examine later), it
has been felt necessary by us that there should be
an independent enquiry into the question whether
there is a person known as Ashok Kumar Gupta son
of Shri Ghasita Ram Gupta R/O 5, Ring Road,
Kirlokari, Opposite Maharani Bagh, New Delhi, and
whether he was the person who had executed the
documents dated 9.10.1990 in favour of defendants
2 and 3 and whether he was also the person who
executed the general power of attorney dated
6.3.90, (whose photographs are attached thereto)
and the person who applied to Municipal
Corporation of Delhi for mutation and obtained the
same on 16.10.89 in respect of the suit property.
And if so, his whereabouts. The original power of
attorney in court custody contains thumb
impression of the executant.‖

―There are various other facts and circumstances

which are material for deciding the appeal but
before we do so, we are of the view that the
abovesaid investigation should be conducted by the
CBI and a proper report should be placed before us.
The Director, CBI is directed to appoint a Senior
officer of the CBI to go into the above facts and
submit a report to this court on the aspects referred
to above.‖

Test Cas.No.19/2004 Page 46 of 65

12.1.8. Girdhari Lal Tewari v. Union of India, 2003 (70)
Delhi Reported Judgment 415-

―29. We also feel that this is an appropriate

case where the Central Bureau of Investigation
should be directed to make an enquiry with
regard to the entire transactions including the
forgery and fabrication of documents which
are proved and established. The CBI shall
make Investigation and those who are found
responsible for such manipulations and
misdeeds of tempering, falsifying and
interpolation of official record, shall be
proceeded with the accordance with law. In
terms of the aforesaid directions and
observations both the writ petitions stand
allowed to the aforesaid extent.‖

12.1.9. Vishesh Jain v. Arun Mehra, IA No.5596/06 in

CS (OS) No.1136 / 05 decided by this Court on
4.04.2008-

―All efforts to trace the plaintiff failed. This suit

has been filed on the basis of forged
documents. Even bailable warrants could not
be served on the plaintiff as he is evading
service. This application under Section 340 of
the Code of Criminal Procedure has been made
on behalf of the applicants/defendants No.1, 2
and 3 wherein it is alleged that the present
suit was filed by one Vishesh Jain on the basis
of forged and frivolous documents. The suit
filed by the plaintiff was dismissed by this
Court on 12th December 2005 with cost of
`10,000/-. This Court issued notice to Mr. R.K.
Nanda and Mrs. Promila Nanda, Directors of
Durga Builders and recorded statement of Mr.
R.K. Nanda. His statement prima facie showed
a collusion between them and Mr. Vishesh Jain.
He stated that he had no knowledge about the
suit being listed on 16th August 2005. He had
not met Mr. Vishesh Jain. However, he had
executed power of attorney in favour of Mr.
Sharad Kumar Aggarwal and Ms. Purnima
Aggarwal, Adv and admitted his signatures.
The record of other suit No.987 of 2006 was
summoned. The suit was shown disposed of
having been amicably settled outside the

Test Cas.No.19/2004 Page 47 of 65

 Court between plaintiff and defendants. It was
stated by the plaintiff that he had received a
sum of `30,000/- as full and final settlement. It
seems that there was a conspiracy and
collusion between the plaintiff Vishesh Kumar
Jain and defendant No.4. The matter needs
through investigation.

Registrar General of this Court is directed to

send the matter for investigation to Crime
Branch of Delhi Police to find out who was this
Vishesh Jain, his business and his present
whereabouts. Report be sent to this Court by
Crime Branch within 90 days. Crime Branch
shall investigate the conspiracy between
defendant No.4 and Vishesh Jain and how the
documents filed in this case came into
existence, whether they were forged
documents or genuine. Registrar General of
this Court shall also send all documents filed
by the plaintiff in the suit along with copy of
the suit to the Crime Branch as well as
photocopy of the record of suit No.981 of
2006.‖

12.1.10. Mahant Surinder Nath v. Union of India, 146

(2008) Delhi Law Times 438-

―41. I, thus, deem it appropriate to direct that

the Registrar General should appoint a
Registrar/Joint Registrar of this Court to take
necessary action for initiation of proceedings
under Section 340(1) Cr.P.C. keeping in mind
the aforesaid provisions of the IPC.
42. It also cannot be lost sight of that the
execution of the sale deeds prima facie
appears to be a collusive act not only of the
plaintiffs but of three other persons,
Mr.Mahender Pal, Smt.Anita Yogi and
Mr.Akhilesh Singh, who are closely related to
the plaintiff, being the natural brother, the wife
of the brother and the brother of such a wife.
These vendees are not before the Court. A
further inquiry into the execution of sale deeds
is necessary. I, thus, deem it appropriate to

Test Cas.No.19/2004 Page 48 of 65

 direct that the Economic Offence Wing of the
Delhi Police shall register an FIR against all the
five persons and carry out investigation in
accordance with law and if offences are made
out, to take suitable action thereafter. This
direction is necessary as the sale deeds are
documents in rem and would give authority to
the vandees to mislead the public of the
prospect of purchase of land which could never
have been sold.‖
―44. The suit is accordingly dismissed with the
aforesaid directions with the hope that the
authorities concerned would follow-up the
matter in a proper perspective to see that the
ends of justice are met.‖

12.1.11. Nitin Seth v. Rohit Kumar, CM(M) No. 459/2004

decided by this Court on 22.08.2008-

― … Aggrieved by the said order, the

petitioner herein filed an appeal before the
Delhi High Court being FAO No. 96/2000 {sic
96/2001}. Delhi High Court vide order dated
3.4.2002 confirmed the status quo order
however, during pendency of this FAO, the
High Court in order to come at a right
conclusion had made detailed enquiry into the
facts. The High Court vide order dated
17.4.2001 had directed the petitioner herein to
produce the original title deeds of the said
property on the basis of claim of ownership
was staked and directed an investigation to be
done by the Crime Branch of Delhi Police
regarding genuineness of the said documents.
The Crime Branch made an enquiry and got
the documents examined from forensic lab and
submitted its enquiry report dated 22.1.2002
to the High Court. The enquiry report revealed
that sale deed dated 4.3.1971 in favour of Ms.
Kum Kum Jain and the sale deed dated
31.8.2000 in favour of the petitioner, both
were forged and fabricated documents and
even the stamps of Sub-Registrar were forged.
…‖

Test Cas.No.19/2004 Page 49 of 65

12.1.12. Oil and Natural Gas Corporation Ltd. v. Phula
Bala Paul, 2007 (4) GLT 680-

―9. A bare reading of the two sets of sale

deeds pertaining to the same Sub-Registrar
office with identical numbers disclose that the
exhibited sale deeds, the value have been
shown to be fabulously higher and inflated
than what is disclosed in the sale deeds so
produced by Mr. Dutta as referred to above.
Apart from the consideration of amount, the
parties to the transaction also do not tally.
10. The aforesaid exhibits have been
accepted by the learned District Judge in a
judicial proceeding in the Reference cases, as
produced by the respondents/claimants. The
decision to enhance the market value of the
acquired land is also based on the aforesaid
exhibits so produced by the claimants. The
picture that emerges from the aforesaid fact it
is apparent prima facie that the claimants
appear to have practice fraud to get
compensation at inflated rate going to the
extent of manufacturing such sale deeds. In
such a situation, the decision rendered by the
learned District Judge enhancing the
compensation based on fraud is not
sustainable in law. …‖
―12. On perusal of the exhibited documents as
well as documents submitted by Mr. Dutta
(copies of which are kept on records), there
appears a genuine doubt about the
genuineness of the aforesaid exhibits, namely
Exts.-1, 3, 4, 6, 7 and 8, as exhibited before
the Reference Court. …‖
―13. In view of the aforesaid discussions and
grave doubt about the genuineness of the
exhibited documents on the basis of which
Awards have been passed, …‖
―14. The Registry of this Court is directed to
forward a copy of this judgment along with the
Ext.-1, 3, 4, 6, 7 and 8 and the documents
produced by Mr. Dutta, to the Superintendent
of Police, Cachar, Silchar and on receipt of the
same, the Superintendent of Police, Cachar,
Silchar shall cause registering criminal case
under appropriate sections of law and

Test Cas.No.19/2004 Page 50 of 65

 necessary investigation be caused regarding
genuineness/fraudulent manufacturing of the
aforesaid documents and investigate the
matter under his strict supervision to unearth
and identify the culprits, if any, and to deal
with as per law. The learned District Judge,
Cachar, Silchar shall render all assistance from
his end whatever is necessary for the purpose
of the aforesaid investigation.
The Registry shall register a Misc Case and
shall appraise the Court regarding the stage of
investigation as directed to be conducted as
aforesaid. The Superintendent of Police,
Cachar, Silchar, and the Officer-in-Charge,
Silchar Police Station are also directed to
report back to this Court from time to time
about the progress of the investigation so that
this Court can well monitor the matter.‖

12.1.13. Shanthamma v. Sub-Inspector of Police, Malur

Police Station, 2007 (3) Kar L J 330-

―7. We also deem it proper to direct the

Commissioner of Police to get hold of the
entire records including the reports and the
affidavit filed in this Court and hold
appropriate enquiry in accordance with law
against Sri. Zahoor Ali Baig, Sub-Inspector, Sri.
Mallegowda, PC and Sri. Balanaik, PC for
creating false records thereby violating their
duty in a manner known to law and in
accordance with law departmentally. Further
liberty is reserved to the Commissioner of
Police to proceed against any other police
officers, if they are involved directly or
indirectly, departmentally in accordance with
law.‖

12.2. Thus, the law is settled that the Court has a power to

direct the police to investigate and report, which power

has been readily exercised by the Courts whenever they

felt that the facts of the case so warranted.

12.3. Often, the facts are such on which a private party cannot

be expected to itself investigate, gather the evidence and

Test Cas.No.19/2004 Page 51 of 65
 place it before the Court. It needs a State agency

exercising its statutory powers and with the State

machinery at its command to investigate the matter,

gather the evidence, and then place a report before the

Court along with the evidence that they have been able

to gather. Moreover, the offence(s) may be a stand-alone

or as a carefully devised scheme. It may be by a single

individual or it may be in conspiracy with others. There

may be conspirators, abettors and aiders or those who

assisted, who are not before the Court, or even their

identity is not known.

12.4. Where the facts are such on which the Court (or a

subordinate officer) can conduct the inquiry, it will be so

conducted, but where the facts are such which call for

tracing out other persons involved, or collection of other

material, or simply investigation, it is best carried out by

a State agency. The Court has not only the power but also

a duty in such cases to exercise this power. However, it

may be clarified that a party cannot ask for such direction

as a matter of routine. It is only when the Court is prima

facie satisfied that there seems to have been wrongdoing

and it needs investigation by the State agency that such

a direction would be given.

12.5. The present is a fit case where the investigation by the

Police (Crime Branch) is necessary, otherwise many facts

Test Cas.No.19/2004 Page 52 of 65

 will remain hidden and the others involved will escape

punishment.

13. Does it constitute criminal contempt?

13.1. The filing of the petition containing false averments also

constitutes criminal contempt of court under Section 2(c)

of the Contempt of Courts Act 1971 which reads as under:

―Section 2(c) - criminal contempt‖ means the

publication (whether by words, spoken or written,
or by signs, or by visible representation, or
otherwise) of any matter or the doing of any other
act whatsoever which-

(i) scandalises, or tends to scandalise, or

lowers or tends to lower the authority of, any
court; or

(ii) prejudices, or interferes or tends to

interfere with, the due course of any judicial
proceeding; or

(iii) interferes or tends to interfere with, or

obstructs or tends to obstruct, the
administration of justice in any other manner;‖

13.2. There is additionally the power with the High Court under

Article 215 of the Constitution to punish for contempt.

13.3. Dr. Arun Mohan, learned amicus curiae has referred to the

following decisions:-

13.3.1. In Dhananjay Sharma v. State of Haryana,

(1995) 3 SCC 757, the Court found tampering of
court records and production of false documents.
The Court observed:

―38 ... any conduct which has the tendency to

interfere with the administration of justice or
the due course of judicial proceedings amounts
to the commission of criminal contempt. The
swearing of false affidavits in judicial
proceedings not only has the tendency of
causing obstruction in the due course of
judicial proceedings but has also the tendency

Test Cas.No.19/2004 Page 53 of 65

 to impede, obstruct and interfere with the
administration of justice. The filing of false
affidavits in judicial proceedings in any court of
law exposes the intention of the party
concerned in perverting the course of justice.
The due process of law cannot be permitted to
be slighted nor the majesty of law be made a
mockery of by such acts or conduct on the part
of the parties to the litigation or even while
appearing as witnesses. Anyone who makes an
attempt to impede or undermine or obstruct
the free flow of the unsoiled stream of justice
by resorting to the filing of false evidence,
commits criminal contempt of the court and
renders himself liable to be dealt with in
accordance with the Act. Filing of false
affidavits or making false statement on oath in
courts aims at striking a blow at the rule of law
and no court can ignore such conduct which
has the tendency to shake public confidence in
the judicial institutions because the very
structure of an ordered life is put at stake. It
would be a great public disaster if the fountain
of justice is allowed to be poisoned by anyone
resorting to filing of false affidavits or giving of
false statements and fabricating false
evidence in a court of law. ...‖

Filing a false / wrong affidavit was thus treated as

contempt of court.

13.3.2. In Afzal v. State of Haryana (1996) 7 SCC 397,

the Hon‘ble Supreme Court held as under:

―32 ... Section 2(b) defines ―contempt of

court‖ to mean any civil or criminal contempt.
―Criminal contempt‖ defined in Section 2(c)
means interference with the administration of
justice in any other manner. A false or a
misleading or a wrong statement deliberately
and wilfully made by a party to the
proceedings to obtain a favourable order
would prejudice or interfere with the due
course of judicial proceedings. ... ... He first
used fabricated counter-affidavit, forged by
Krishan Kumar in the proceedings to obtain a
favourable order. But when he perceived
atmosphere adverse to him, he fabricated

Test Cas.No.19/2004 Page 54 of 65

 further false evidence and sought to use an
affidavit evidence to show that Krishan Kumar
had forged his signature without his
knowledge and filed the fabricated document.
Thereby he further committed contempt of the
judicial process. He has no regard for truth.
From stage to stage, he committed contempt
of court by making false statements. Being a
responsible officer, he is required to make
truthful statements before the Court, but he
made obviously false statements. Thereby, he
committed criminal contempt of judicial
proceedings of this Court.‖

13.3.3. In Rita Markandey v. Surjit Singh Arora (1996)

6 SCC 14, it was observed:

―14 ... by filing false affidavits the respondent

had not only made deliberate attempts to
impede the administration of justice but
succeeded in his attempts in delaying the
delivery of possession. We, therefore, hold the
respondent guilty of criminal contempt of
court.‖

13.3.4. In Murray & Co. v. Ashok Kumar Newatia

(2000) 2 SCC 367, it was held as under:-

―24 … but there is no dispute as such on

the factum of a false and fabricated statement
finding its place in the affidavit. The statement
cannot be termed to be a mere denial though
reflected in the affidavit as such. Positive
assertion of a fact in an affidavit known to be
false cannot just be ignored. It is a deliberate
act. The learned Advocate appearing for the
respondent made a frantic bid to contend that
the statement has been made without
releasing the purport of the same. We are,
however, not impressed with the submission
and thus unable to record our concurrence
therewith. It is not a mere denial of fact but a
positive assertion and as such made with
definite intent to pass off a falsity and if
possible to gain advantage. This practice of
having a false statement incorporated in an
affidavit filed before a Court should always be
deprecated and we do hereby record the

Test Cas.No.19/2004 Page 55 of 65

 same. The fact that the deponent has in fact
affirmed a false affidavit before this Court is
rather serious in nature and thereby rendered
himself guilty of contempt of this Court as
noticed hereinbefore. This Court in our view,
would be failing in its duties, if the matter in
question is not dealt with in a manner proper
and effective for maintenance of majesty of
Courts as otherwise the Law Courts would lose
its efficacy to the litigant public. …‖

13.3.5. In Re: Bineet Kumar Singh (2001) 5 SCC 501,

the Hon‘ble Supreme Court held as under:-

―6. …Criminal Contempt has been defined

in Section 2(c) to mean interference with the
administration of justice in any manner. A false
or misleading or a wrong statement
deliberately and wilfully made by party to the
proceedings to obtain a favourable order
would undoubtedly tantamount to interfere
with the due course of judicial proceedings.
When a person is found to have utilised an
order of a Court which he or she knows to be
incorrect for conferring benefit on persons who
are not entitled to the same, the very
utilisation of the fabricated order by the person
concerned would be sufficient to hold him/her
guilty of contempt, irrespective of the fact
whether he or she himself is the author of
fabrication...‖

13.3.6. In Chandra Shashi v. Anil Kumar Verma, (1995)

1 SCC 421, the Hon‘ble Supreme Court held:

―2. Anyone who takes recourse to fraud,

deflects the course of judicial proceedings; or if
anything is done with oblique motive, the
same interferes with the administration of
justice...‖
―7. There being no decision of this Court (or
for that matter of any High Court) to our
knowledge on this point, the same is required
to be examined as a matter of first principle.
Contempt jurisdiction has been conferred on
superior courts not only to preserve the
majesty of law by taking appropriate action
against one howsoever high he may be, if he

Test Cas.No.19/2004 Page 56 of 65

 violates court‘s order, but also to keep the
stream of justice clear and pure ... ... so that
the parties who approach the courts to receive
justice do not have to wade through dirty and
polluted water before entering their
temples. ...‖
―8. To enable the courts to ward off
unjustified interference in their working, those
who indulge in immoral acts like perjury,
prevarication and motivated falsehoods have
to be appropriately dealt with, without which it
would not be possible for any court to
administer justice in the true sense and to the
satisfaction of those who approach it in the
hope that truth would ultimately prevail. ...‖
―9. ... The word ‗interfere‘, means in the
context of the subject, any action which
checks or hampers the functioning or hinders
or tends to prevent the performance of duty ...
... obstruction of justice is to interpose
obstacles or impediments, or to hinder,
impede or in any manner interrupt or prevent
the administration of justice. Now, if recourse
to falsehood is taken with oblique motive, the
same would definitely hinder, hamper or
impede even flow of justice and would prevent
the courts from performing their legal duties
as they are supposed to do.‖
―14 ... if the publication be with intent to
deceive the court or one made with an
intention to defraud, the same would be
contempt, as it would interfere with
administration of justice. It would, in any case,
tend to interfere with the same. This would
definitely be so if a fabricated document is
filed with the aforesaid mens rea. In the case
at hand the fabricated document was
apparently to deceive the court; the intention
to defraud is writ large. ...‖

13.3.7. In Rajeev Kumar v. State of U.P., 2006 (1) AWC

34, the Court held:

―45. In view of the above, we are of the

considered opinion that as the petitioners filed
a forged document purporting to be an
agreement reached on behalf of respondent

Test Cas.No.19/2004 Page 57 of 65

 nos. 6 to 8 (Annex.2), and filed the petition
totally on false averments in order to mislead
the Court to obtain a favourable order, they
are liable to be tried for committing criminal
contempt and are further liable to be dealt
with heavy hands.‖

13.3.8. In Cyril D’souza v. Ponkra Mugera, 1998 (1)

Karnataka Law Journal 659, the Court held:

―6 … Instead, this petition appears to be

an attempt of the petitioner to procure some
order from the Court on the basis of an
agreement which prima facie appears to be an
ante-dated document prepared after that date
and it prima facie shows that a false document
has been filed with false allegations … …
Filing a false affidavit and filing forged
document, as per law laid down by the
Supreme Court is nothing but an act illegal,
interfering with the proper administration of
justice and it prima facie makes out a case for
contempt.
7. In this view of the matter, I think this
Court should take necessary steps and issue
notice to the petitioner as well as respondent
1, to show-cause why this Court should not
take action for contempt and punish them for
having committed contempt of this Court.‖

13.3.9. In Vijay Enterprises v. Gopinath Mahade Koli,

2006 (4) BOMCR 701, the Court held:

―6 … It is needless to state that justice

delivery system has to be pure and should be
such that the persons who are approaching the
Courts and filing the proceedings must be
afraid of using fabricated documents and also
of making false statements on oath. We are a
Court of Law sitting here to ascertain the truth
and give justice in accordance the law to
establish truth and not being misled by the
advocates and the parties in the various
directions so as to make it almost impossible
to give effective and truthful justice to the
litigants at large. In my opinion keeping in
mind the aforesaid position it is high time that
where the people have blatantly used the

Test Cas.No.19/2004 Page 58 of 65

 fabricated document for the purpose of
achieving the desired result even by
misleading the Court and / or by making false
statement and by using fabricated documents
cannot escape the penalties. This is an
unfortunate case before me where the persons
who have used the certificate are illiterate.
There are people who are behind them are
powerful. But they are taking shelter behind
the fact that the certificate has been brought
to them by those illiterate persons. In spite of
the aforesaid it has been established on the
record not only the three persons have
obtained the fabricated document but the
builder and brokers and the lawyer have all
conscientiously utilised the said certificate
knowing fully well that the said certificate is
fabricated. Firstly because all of them knew
that there are two certificates produced one
bearing No. 15 and another bearing No. 98.
The builder, the brokers and the lawyer not
being literate and having resources before
entering into the agreement and filing the
proceedings in the Court ought to have
ascertained and verified the veracity of the
said document. But admittedly they have not
done so before using the said document in the
Court proceedings. This is not a mere lapse but
the fact is that the fabricated document has
been consciously used by the said persons. In
that light of the matter, I am of the opinion
that each of the aforesaid persons are guilty of
using fabricated document in the Court
proceedings and are consequently guilty of
contempt of court. I am also of the opinion that
utilising the fabricated document in the court
proceedings amounts to interference with the
administration of justice and thus attracts the
liability of contempt. In effect, it is the builder
and the brokers who have been on
investigation found to be the real persons in
moving an application through an illiterate
person Mahadu Lakhama Kakade to utilise the
said certificate. Though the application was in
the name of Mahadu Lakhma Kakade, in fact
by virtue of the joint development agreement
the real beneficiary was Manoj Kumar
Devadiga as he was entitled to develop the

Test Cas.No.19/2004 Page 59 of 65

 said property. I am of the view that this is a fit
case where action must be taken …‖

13.3.10. In Gautam Chand Chopada v. Mahendra Kumar

Pukhraj Kothari, Criminal Revision Application
Nos. 153 and 154 of 2008 and Criminal Application
Nos. 154 and 155 of 2008 decided by the Bombay
High Court on 22.07.2008, the Court held:

―34. The reading of the aforesaid letter

written by Nandini Hospital under the
signature of Dr. D.B. Goyal goes to show that
the accused-applicant Mr. Gautam Chopada
was never admitted in the said Hospital. This
factual matrix goes to show that Mr. Gautam
Chopada tried to mislead this Court by
producing a false and fabricated document
and thereby interfered with administration of
justice. He also tried to play fraud on this
Court.‖
―36. In the factual scenario drawn
hereinabove, I am of the view that filing of the
fabricated, bogus and false document before
this Court, prima facie amounts to contempt of
this Court since it had interfered with the
administration of justice.‖

13.3.11. In State of A.P. v. Mandalupu Ramaiah, 2003

(6) Andhra Law Digest 190, the Court held:

―42. In this case also, the contemnor

produced the alleged order of the Government
dated 11.10.2002 which was found to be a
fabricated one and the very fact itself will
amount to Criminal Contempt of Court.‖
―52. Now coming to the quantum of
punishment to be given we have thought over
the problem with all the seriousness that is
required in the matter and we feel that unless
lawlessness which is all pervasive in the
society is not put an end with an iron hand the
very existence of a civilized society is at peril if
the people of this nature are not shown their
place. Further if the contemnor is allowed to
go scot free every law breaker violates the law
with immunity and tenders apology in the

Test Cas.No.19/2004 Page 60 of 65

 Court. After leaving the Court he will laugh at
the system. Hence, deterrent action requires
to uphold the majesty of law. Hence, we are
not inclined to take any lenient view in the
matter since undue sympathy or inadequate
sentence to the accused would undermine
public confidence in the efficacy of law and
society.
53. Hence, we are of the view that the
contemnor shall be given maximum
punishment in exercise of the inherent
jurisdiction vested in this Court under Article
215 of the Constitution of India read with
Section 12 of the Contempt of Courts Act.
54. In the result, we convict the contemnor
under Section 12 of the Contempt of Courts
Act and sentence him to undergo simple
imprisonment for a period of six months and to
pay a fine of ` 2,000/-(Rupees two thousand
only) within two weeks from the date of receipt
of the order. …‖

13.3.12. In Vidyadhar Govind Patwardhan v. Aravind

Shreedhar Ghatpande, 1990 (3) Bombay High
Court Reports 567, the Court held:

―4 … While granting interim, reliefs,

Courts have to be careful and no cock and bull
story entitles the author of that story to
interim relief though in a sense even such
stories may require to be listened to. The 1st
respondent had committed contempt by the
institution of the suit which is based on
patently false averments and deserves to be
dealt with therefor. …‖

13.4. Coming to the facts of this case, here too, filing a petition

based on false averments and carrying it forward for six

years prima facie amounts to a criminal contempt of this

Court. However, formal issue of notice is deferred till the

inquiry is carried out.

Test Cas.No.19/2004 Page 61 of 65

14. Directions to the Police

14.1. The material on the record and the facts as they appear

are sufficient to return a finding as envisaged by clause

(a) of Section 340 Cr.P.C. as also that criminal contempt

of Court has been committed, and that it is expedient in

the interests of justice to so proceed. However, the final

orders are deferred, and as part of a preliminary inquiry,

the Delhi Police (Crime Branch or the Economic Offences

Wing, as the case may be) is directed to investigate the

matter. For the purposes of investigation, the Police may

register an appropriate case and then proceed to

investigate according to law. The investigation and the

report to this Court shall include the identity details and

personal particulars of the petitioner; his address given in

the Will as ‗1219, Katra Sat Narain, Chandani Chowk,

Delhi-110006‘, his address(es) during the period 1st April,

1999 to 30th May, 1999, and 1st January, 2004 to 30th

April, 2004 and thereafter till 31st December, 2007; the

petitioner‘s contact or association with late Smt. Ram

Piyari, resident of D-50, Greater Kailash Enclave-II, New

Delhi; the petitioner‘s work, profession or activities during

the period 1st April, 1999 to 30th May, 1999 and 1st

January, 2004 to 30th April, 2004; bank accounts operated

by the petitioner during the period 1st January, 2004 to

30th April, 2004; mobile telephone numbers being used by

the petitioner during the period 1st April, 1999 to 30th

Test Cas.No.19/2004 Page 62 of 65

 May, 1999, and 1st January, 2004 to 30th April, 2004;

handwriting of letter dated 20th February, 2004 by the

petitioner to DDA; execution of any: ―Agreement to Sell‖

or ―G.P.A.‖ as referred by the petitioner in the letter dated

20th February, 2004; handwriting of the words ‗11th May

1999‘ on the alleged Will and the alleged MoU; who

signed the alleged Will dated 11th May, 1999 as (first

witness) Rajat Kumar, son of Shri Satya Prakash, resident

of BH 23-C, Shalimar Bagh, Delhi 1100052, and also filed

affidavit dated 12th April, 2004 in this Court; who

appeared before the Notary for attestation of the said

affidavit; who signed the alleged Will dated 11th May,

1999 as second witness ‗Ashok son of late Shri J.P.

Sharma, resident of C-70 Jawahar Park, New Delhi

110062‘; which other persons were involved in the

making of the claim (on the basis of the alleged Will dated

11th May, 1999) before this Court; the connection of the

witnesses with the petitioner whose names are given in

the list of Witnesses dated 11th January, 2010 filed in this

case; and generally, all other facts which will go to show

the truth or otherwise of the claim placed before this

Court by the said petitioner.

14.2. On completion of investigation, the Report shall not be

filed before the Magistrate (per Section 173(2) Cr.P.C.)

nor will the persons be forwarded to the Magistrate, but

the Report shall be filed before this Court to enable it to

Test Cas.No.19/2004 Page 63 of 65

 continue with the Preliminary Inquiry as contemplated by

Section 340 Cr.P.C. and also under the inherent powers of

this Court. The Police will also place before this Court

copies of the charge-sheet and reports of the experts on

the documents. The Police may file any interim Report, if

they deem it necessary.

14.3. Upon receipt of the report from the Police, this Court will

consider whether the petitioner, or other persons as the

Report might indicate, are to be heard and to what extent

before the making of the complaint. Initiation of contempt

proceedings will also be considered at that stage.

15. A Clarification

15.1. Before closing, I make it clear that nothing stated in this

order shall affect the pending proceedings before the

Metropolitan Magistrate arising out of FIR No.95/04 dated

19th April, 2004, which shall be decided on its own

merits.

15.2. The original documents listed in the order dated 18th May,

2010 shall, after certified photocopies have been

prepared, be kept in a sealed cover and in safe custody.

The certified copies shall be placed on the record of the

main petition at the same place where the originals (now

being placed in a sealed cover) were filed, and be also

given to the Police. The investigation and the inquiry shall

proceed on the basis of the certified copies. The Police

will be free to inspect the court file and take photographs

Test Cas.No.19/2004 Page 64 of 65

 and photocopies. The Joint Registrar may pass orders for

opening and closing the sealed cover and allowing

inspection to the Police Investigator or any other person

from the forensic laboratory, including taking micro

photographs.

15.3. The original documents shall be retained by the High

Court in safe custody in such a manner so that the

envelope can be produced before the trial court when

that Court has occasion to record evidence in pursuance

of the complaint. Until then, the investigation, the inquiry

and even the trial court shall proceed on the basis of the

certified photocopies.

15.4. I express appreciation of this Court for the laborious work

done by Dr. Arun Mohan, Sr. Advocate, as amicus curiae.

15.5. Cr.Misc.(Main)No.6721/2010 be listed before appropriate

Bench for further orders on 21st December, 2010.

15.6 Copy of this order along with certified copies of the

documents mentioned in para 15.2 above be sent to the

Delhi Police through its Commissioner for compliance. Let

the report be filed one week before the next date.

J.R. MIDHA, J
NOVEMBER 18, 2010

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