Sunday, 17 January 2016

When offence of filing of false affidavit is not made out?

 Now the question is whether under the writ jurisdiction both the
orders, the first in point of time dated 24/04/2012 passed by the Deputy
Collector and the second one passed by the Sessions Judge dated
21/04/2014 are required to be interfered under the provisions of Section
482 of Criminal Procedure Code. What is urged before this Court on
behalf of the petitioner is that there is no basis for initiating the
prosecution by the Deputy Collector against the petitioner for the offence
under S.181 of Indian Penal Code inasmuch as even prima facie there is
no finding in the impugned order dated 24/04/2012 that the contents of
the affidavit dated 3/06/2003 were per se false. On this count, counter to
these arguments much is argued by learned Counsel for respondent no.2
by placing reliance on various documents which were annexed to his
complaint dated 25/08/2010 before Deputy Collector. It is argued that in
the year 2002 itself, there were notices issued against the construction
carried out by said Shyam Naik and there are various other letters and
notices issued subsequently. Even directions were given by Panchayat,
Panaji-Goa for demolition of the construction of the house constructed by
said Shyam Naik. By pointing out this it is submitted that the
construction done by Shyam Naik was not authorised and without
sanction and therefore what was mentioned by present petitioner in his
affidavit dated 3/06/2003 was false. However, in the considered opinion
of this Court whether or not the said construction was legal or illegal is
not a question to be determined here, but what is to be seen is whether
there is prima facie finding that the contents of the affidavit dated
3/06/2003 sworn by the present petitioner were false and whether such
false statement was knowingly made by the petitioner before the Deputy
Collector and Sub-Divisional Officer in the proceedings of the year 2002.
On going through the entire order dated 24/04/2012 except reproducing
the arguments of rival parties, Sub-Divisional Officer i.e. Deputy
Collector has not mentioned anything regarding the conclusion that the
contents of the affidavit dated 3/06/2003 were false and which the
petitioner was knowing or believing to be false. In fact, such prima facie
satisfaction is necessary in order to initiate a complaint for offence under
S.181 of Indian Penal Code. On this aspect, though it is tried to argue on
behalf of the petitioner that the said affidavit was filed before then Sub-8
Divisional Officer in the year 2003, the apparent action is initiated by
another Sub-Divisional Officer in the year 2012 and not by the same
Court, there is no much force in the said arguments and if otherwise
requirements of law are complied as to initiate the action under S.181 of
Indian Penal Code then successor in the office can initiate such
proceedings. 
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.53 OF 2014
Shri Mariano Marques

V/s
State of Goa,

CORAM : A.R. JOSHI, J.
DATE : 4th AUGUST, 2014
Citation; 2015 ALLMR(CRI)4322

Heard. Rule. Rule returnable forthwith by consent of the parties.
Learned Counsel for respondents waive service.
2. The present writ petition is taken up for final adjudication at the
admissions stage itself.2
3. The facts of the case are very peculiar in nature. Present writ
petitioner has challenged two orders. First one dated 24/04/2012 passed
by Deputy Collector and Sub-Divisional Officer, Ponda, Sub-division,
Ponda-Goa in case no.PON/SDM/MISC/1/2010 and second order dated
21/04/2014 passed by Additional Sessions Judge, Fast Track Court, North
Goa, Panaji in Criminal Revision Application No.96/2012.
4. By the first order dated 24/04/2012, Deputy Collector, Ponda had
initiated the action against present petitioner for giving directions for
lodging the complaint against the petitioner for the offence punishable
under S.181 of Indian Penal Code. Said directions were given on the
basis of complaint given by present respondent no.2 dated 25/08/2010
requesting the Deputy Collector to file complaint against the present
petitioner under S.181 of Indian Penal Code for filing false affidavit
before Deputy Collector in a matter of conversion proceedings. Without
much going into the details, suffice it to say that the said conversion
proceedings against some another person by name Shyam Naik were
initiated by Mamlatdar, Ponda again on the complaint given by the
present respondent no.2. The said complaint of respondent no.2 was that
said Shyam Naik was doing some construction without the permission of
the competent authorities and requested the Mamlatdar to take3
appropriate action. On said complaint, a proceeding under case
no.7/88/2002-III-Conv. was initiated. Admittedly, the said proceeding
was initiated by Mamlatdar, Ponda on behalf of State against Shyam Naik
and one Venkatesh Naik. Venkatesh Naik was apparently owner of the
property and Shyam Naik was the person who was doing some
construction on survey no.919/14 of village Shiroda. In the said
proceeding, notices were issued to the respective parties.
5. Admittedly the present petitioner and also respondent no.2 were
not parties to the said proceeding. In fact, though not being a party,
present respondent no.2 was the person behind initiation of the said
proceeding and present petitioner was one of the persons who filed an
affidavit. The present petitioner filed his affidavit dated 3/06/2003
making some statements. At this stage, it must be mentioned that it is the
submission on behalf of respondent no.2 that the said statements were per
se false and, as such, present petitioner was liable for action under S.181
of Indian Penal Code for giving or making false statement before a public
officer. As such, in fact, the contents of the said affidavit are of much
significance and which are reproduced here under and it is to be seen
whether the Deputy Collector while passing the impugned order dated
24/04/2012 came to the specific conclusion that the contents of the said4
affidavit are per se false and thus rendering the petitioner liable for action
under S.181 of the Indian Penal Code. Paras no.1 to 6 of the said
affidavit which was filed in case no.7/88/2002 read thus:
1. I say that I know that there is a case against
Respondent No.1 for alleged illegally construction
in this Hon'ble Court.
2. I say that there is a cowshed-cum store room
since time of ancestor of the Respondent in the
property surveyed under No.919/14 of village of
Siroda Goa.
3. I say that also know that said cowshed cumstore
room used previously by ancestor of the
Respondent and by Respondent to tieing cattles,
cows, etc. and also for storing agricultural produce
and implements used for agricultural activities.
4. I say that the condition of the said cowshedcum-store
room was posing endanger to property
and lives of users and by passers.
5. I say that if had the Respondent not gone for
urgent repair of the said cowshed-cum-store room
there would be collapse of the said shed causing
unrepairable loss to the Respondent.
6. I say that whatever I have stated herein above is
true to the best of my knowledge.
5. It is a factual position that on filing of the said affidavit and after
considering the contents of the other affidavits produced on behalf of the
said Shyam Naik the said conversion proceedings were closed by order
dated 31/07/2003. Though present respondent no.2 was not a party to the5
said proceeding he challenged the order of closure of conversion
proceeding dated 31/07/2003 by filing an appeal before Administrative
Tribunal, Panaji-Goa being Land Revenue Appeal no.238/2003. It was
dismissed challenging the locus of respondent no.2, so also, it was
dismissed on the merits and said dismissal order is dated 24/09/2009.
Thereafter, a private complaint was lodged by present respondent no.2
being complaint no.18/P/2006/C on 27/02/2006 for taking action against
the present petitioner, the person who filed an affidavit in the conversion
proceeding initiated against Shyam Naik. In the said complaint it is
prayed by respondent no.2 that action under S.181 of Indian Penal Code
is to be initiated against petitioner. By taking recourse to provisions of
Section 195 Criminal Procedure Code learned JMFC dismissed the said
complaint and discharged the present petitioner vide order dated
28/07/2010 and it was rightly so done in view of the mandate of law
specifically directing as to on whose complaint a cognizance is required
to be taken by JMFC when offences under Section 193 to 228 of Indian
Penal Code are alleged. Needless to mention that the officer/public
servant before whom such false statement or false information is given is
the authority competent to lodge complaint. In view of the dismissal of
the said complaint of respondent no.2 the present petitioner was
discharged.
6. After the above, the respondent no.2 did not stop, but he again
reagitated the matter and filed an application before Deputy Collector and
this is the application dated 25/08/2010 as mentioned earlier. Said
application was allowed by order dated 24/04/2012, which is the first
impugned order.
7. Now the question is whether under the writ jurisdiction both the
orders, the first in point of time dated 24/04/2012 passed by the Deputy
Collector and the second one passed by the Sessions Judge dated
21/04/2014 are required to be interfered under the provisions of Section
482 of Criminal Procedure Code. What is urged before this Court on
behalf of the petitioner is that there is no basis for initiating the
prosecution by the Deputy Collector against the petitioner for the offence
under S.181 of Indian Penal Code inasmuch as even prima facie there is
no finding in the impugned order dated 24/04/2012 that the contents of
the affidavit dated 3/06/2003 were per se false. On this count, counter to
these arguments much is argued by learned Counsel for respondent no.2
by placing reliance on various documents which were annexed to his
complaint dated 25/08/2010 before Deputy Collector. It is argued that in
the year 2002 itself, there were notices issued against the construction7
carried out by said Shyam Naik and there are various other letters and
notices issued subsequently. Even directions were given by Panchayat,
Panaji-Goa for demolition of the construction of the house constructed by
said Shyam Naik. By pointing out this it is submitted that the
construction done by Shyam Naik was not authorised and without
sanction and therefore what was mentioned by present petitioner in his
affidavit dated 3/06/2003 was false. However, in the considered opinion
of this Court whether or not the said construction was legal or illegal is
not a question to be determined here, but what is to be seen is whether
there is prima facie finding that the contents of the affidavit dated
3/06/2003 sworn by the present petitioner were false and whether such
false statement was knowingly made by the petitioner before the Deputy
Collector and Sub-Divisional Officer in the proceedings of the year 2002.
On going through the entire order dated 24/04/2012 except reproducing
the arguments of rival parties, Sub-Divisional Officer i.e. Deputy
Collector has not mentioned anything regarding the conclusion that the
contents of the affidavit dated 3/06/2003 were false and which the
petitioner was knowing or believing to be false. In fact, such prima facie
satisfaction is necessary in order to initiate a complaint for offence under
S.181 of Indian Penal Code. On this aspect, though it is tried to argue on
behalf of the petitioner that the said affidavit was filed before then Sub-8
Divisional Officer in the year 2003, the apparent action is initiated by
another Sub-Divisional Officer in the year 2012 and not by the same
Court, there is no much force in the said arguments and if otherwise
requirements of law are complied as to initiate the action under S.181 of
Indian Penal Code then successor in the office can initiate such
proceedings. Not on this count, but on the count as to whether prima
facie an offence under S.181 has been spelt out or not, this writ petition is
required to be determined.
8. Again it must be mentioned that at the costs of repetition, question
is not as to the establishment of legality or illegality of the structure of the
Shyam Naik, but the question is whether the present petitioner, then one
of the persons who filed the affidavit in support of Shyam Naik, had
made any false statement or made a statement knowing that it is false and
whether this fact has been established, prima facie to initiate proceeding
against him that also belatedly after 9 years of making such statement.
9. Another circumstance is also to be viewed by this Court inasmuch
as the said affidavit dated 3/06/2003 was filed in the conversion
proceedings initiated in the year 2002 and the said conversion
proceedings were dropped and closed by order dated 31/07/2003 and in
fact another attempt now at the behest of respondent no.2 to initiate
repeated same proceedings on same clause, has failed and order to that
effect has been filed by Deputy Collector and SDO, Ponda Goa on
31/01/2013. For ready reference the said order is reproduced here under:
“Counsel of the Respondent present and he
submits that proceeding of similar nature has
been initiated in the past and the present show
cause is in relation to the same subject matter. He
has placed on record the orders passed in anterior
proceedings as well as that passed by the Hon'ble
Administrative Tribunal. Since the proceedings
are hit by the principle of res judicata the same
are dropped.”
For these reasons also, it must be said that the Deputy Collector
had fallen in an error in passing order allowing the complaint lodged by
the present respondent no.2, apparently the stranger to the entire
proceeding. It also must be said that the revisional Court had also fallen
in an error on 21/04/2014. As such, under the inherent powers of this
Court under Section 482 of Criminal Procedure Code, both the said
orders need interference, thus allowing the above writ petition. Hence,
order:
O R D E R
(i) Writ petition is allowed.
(ii) Rule is made absolute in terms of prayer
clauses (a) & (b).
A.R. JOSHI, J.
NH/-
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